1. At the time when the military appointment was received from the President, General Lane was simply Senator elect from Kansas, and not actually Senator. This cannot be questioned. Until he took the oath at your chair, Sir, he was Senator in title only, not in function. It is true, he already exercised the franking privilege; but this he will also exercise months after his term expires. The franking privilege was all that he possessed of Senatorial functions. On this point I read what is said by Mr. Cushing, in his elaborate work on the Law and Practice of Legislative Assemblies.
“Sec. 2. Refusal to qualify. One who is returned a member of a legislative assembly, and assumes a seat as such, is bound to take the oaths required of him, and perform such other acts as may be necessary to qualify him, if any, to discharge the duties of his office. If a member elect refuses to qualify, he will be discharged from being a member, with more or less of obloquy, or none at all, according to the circumstances of his case; but he cannot be expelled, because he cannot as yet discharge the duties of a member.”[122]
It is clear that the member elect is not invested with the office until qualified by taking the oath. If illustration of this rule be needed, it will be found in the Parliamentary History of Great Britain. Soon after the Revolution of 1688, two persons returned as members refused to take the oaths and were discharged. But there is an historic precedent almost of our own day. As the long contest for Catholic Emancipation in Great Britain was drawing to a close, Mr. O’Connell was elected by the County of Clare to a seat in Parliament. Presenting himself at the bar of the House of Commons, he refused to take the Oath of Supremacy, then required of all members, and was heard at the bar in support of his claim; but the House resolved that he was not entitled to sit or vote, unless he took this oath; and as he persisted in refusal, a writ was issued for a new election. Still later, the same question arose in the case of Baron Rothschild, the eminent banker of the Jewish persuasion, who, when elected as representative for the city of London, refused to take the oaths required, and on this account was kept out of his seat, until what is known as the Jews’ Relief Bill became a law. The conclusion is irresistible, that, until the oath was taken, General Lane had not entered upon his functions as Senator; and here the argument of the Senator from Connecticut, with regard to the effect of the oath, is strictly applicable. An oath in public, at your chair, Sir, being at once of record and sealing the acceptance of an office, is very different from the informal oath taken in private, at a distance, before a local magistrate, which is in the nature of an escrow, until recorded in the proper department.
2. Even if General Lane had been Senator, invested with the functions of the office, and completely qualified by taking the necessary oath, it is still clear that the military duties he had undertaken did not operate as a resignation. And here I remark, that, when it is proposed to unseat a Senator, to deprive him of a place in this body,—I might almost say to deprive him of his rank,—the evidence must be complete. It must be, according to that old phrase of the Common Law, “certainty to a certain intent in every particular.” If there be doubt, either in law or fact, the interpretation should be in his favor. But this case requires no such interpretation. It is true that General Lane had entered upon certain military duties, but he had assumed no military office under the Constitution of the United States. Colonel Baker, a late lamented member of this body, had assumed military duties also. Like General Lane, he, too, had come forward at the summons of the President. It is true that Colonel Baker acted professedly under a commission from a State. General Lane has latterly acted under a similar commission; but at the moment in question he was acting under certain informal and extra-constitutional proceedings of the President, rendered necessary by the exigencies of the hour. The President, by proclamation, undertook to organize an army. He called for volunteers, and also for additions to the regular army. All approved the patriotic act. But I am at a loss to understand how it is supposed that this proceeding can be made effective to oust a Senator of his seat. The act of the President was proper, just, and patriotic; but clearly, and beyond all question, it needed the sanction of Congress to be completely legal. Without such sanction, the army must have drawn its breath from the proclamation alone, and every commission would have been merely a token of Presidential confidence, liable to be defeated, first, by the failure of Congress to sanction the proclamation, and, secondly, by refusal of the Senate to advise and consent to the nomination. It was only when the Act of July 22d was passed, that the President was authorized to appoint new Brigadier-Generals. Then it was, for the first time, that a legal addition was made to the national army, and that this very office was legally created which General Lane was charged with accepting some time in June.
I do not forget the retroactive statute passed on the last day of the session, declaring that all the acts, proclamations, and orders of the President respecting the army and navy, and calling out or relating to the militia or volunteers, are approved, and in all respects legalized and made valid, to the same intent and with the same effect as if they had been issued and done under the previous express authority and direction of Congress. The clause in the Constitution against ex post facto laws has been restricted by judicial interpretation to criminal matters; but I doubt if even this much questioned interpretation would sanction such a retroactive effect as is now proposed. So much, at least, I do know: the Senate is judge, without appeal, with regard to the seats of its members; and I am sure it will not unseat a Senator by a strained application of an ex post facto statute.
The conclusion is twofold: first, that at the time in question General Lane was not a Senator; and, secondly, that at the time in question he was not a Brigadier. The whole case is unreal. It is a question between an imaginary Senator and an impossible Brigadier; or rather, it is a question whether an imagined seat in this body was lost by alleged acts under an impossible military commission. The seat of the Senator did not become a reality until some days after General Lane is supposed to have vacated it; and the military commission did not become a possibility until several weeks after General Lane had abandoned it.
Of course, with this view of the law on these two decisive points, it becomes entirely unnecessary to consider the multifarious and indefinite evidence with regard to what General Lane did in the way of accepting his military commission; because nothing that he did, and nothing that he could do, under that impossible commission, would operate legally in the present case.
In reply to Mr. Davis, of Kentucky, Mr. Sumner spoke further.
I have no desire to follow at length the Senator from Kentucky, but I venture to ask the attention of the Senate simply to one of the points he has presented. According to him, General Lane, when elected as Senator, by the mere fact of his election became Senator, so that the Constitution operated to create an incompatibility between the function of Senator and the new office which it is said he accepted. The Senator from Kentucky, as I understood, argued that the function of the Senator, at least for the purpose of this case, commences with his election.