December 18th, the resolution came up for consideration, when Mr. Saulsbury, of Delaware, moved as a substitute that the Judiciary Committee be directed to inquire whether Senators and Representatives are included within the provisions of the Act prescribing the oath, and whether the Act is constitutional. Subsequently, he moved that the whole subject, including the resolution and the substitute, be referred to the Judiciary Committee, which, after debate, was rejected,—Yeas 15, Nays 26. The debate was continued, in the course of which Mr. Bayard, of Delaware, Mr. Reverdy Johnson, of Maryland, and Mr. Collamer, of Vermont, spoke at length.
January 25, 1864, Mr. Sumner spoke as follows.
MR. PRESIDENT,—There is a time for all things; but there are times when certain things are out of place; and this principle is especially applicable to the present debate. The question is on the adoption of a rule of the Senate to carry out an existing statute. It is not on the passage of the statute, or on its proposed repeal, but it is simply on its recognition as an existing statute, and the enforcement of its plain requirement. Considering the simplicity of the question, well may we be astonished at much that has been intruded into this debate.
The Senate is a branch of the legislative power, in conjunction with the House of Representatives and the President. Neither alone can make or unmake a law. The concurrence of all three is essential, whether in making or unmaking. So long as the law exists, there is no difference between the obligations of the Senate and the obligations of the humblest citizen, except, perhaps, that the Senate, which helped to make the law, is bound to set an example of obedience beyond any citizen.
Therefore I put aside, as entirely irrelevant, much that we have heard against the proposed rule. This is not the time to say that the oath is unconstitutional, or that it is ex post facto. These are considerations properly arising on the passage of the statute, or on a proposition for its repeal. The Senator from Delaware [Mr. Bayard] and the Senator from Maryland [Mr. Johnson], who have argued these topics so exhaustively, were either too late or too early. The statute is already the law of the land, and there is no bill pending for its repeal.
On a former occasion I vindicated the constitutionality of the statute, and I now willingly leave that topic to the judgment of Senators, enlightened by the wisdom of the Senator from Vermont [Mr. Collamer], whose argument has not been answered. But I repeat that this objection is utterly out of place at this moment.
A Senator over the way [Mr. Hendricks] has gone so far as to introduce my course on a former occasion as an apology for not taking the oath.[290] Because I denounced an infamous statute, which was a scandal to civilization, as unconstitutional and utterly unworthy the support of virtuous citizens, it is argued that the Slave-Drivers, then in power, were more lenient to me than we are now to them. In other words, the Slave-Drivers required of me an oath to support a statute which I abhorred, and therefore we are wrong in requiring the proposed oath. But this argument confounds two cases which are wide apart as the poles. While denouncing an outrageous statute, and refusing to play the part of slave-hunter, I never joined in rebellion against my country, or uttered one word except in loyalty. But here are persons with bloody hands, in battle array, striking at all we hold dear,—or others who have acted with them. Such persons will be justly brought to the test of an oath, and they can claim no immunity from the example of those patriot citizens who, recognizing the crime of Slavery, refused to become in any way its tools.
And another Senator [Mr. Johnson] has taken this occasion to arraign me for certain opinions on another question, and he complained that I place them under the protection of a judgment of the Supreme Court. This is not the time for the discussion of “Reconstruction.” It has nothing to do with the matter before the Senate. I may think that the Government of the United States has belligerent rights, as well as the right of sovereignty, over the Rebel States,—that it is especially the duty of Congress to take care that these rights are so exercised as to crush the Rebellion, and to prevent its breaking out again,—and that, to this end, Congress must take all possible bonds for the future. These opinions, which the Senator chose to characterize harshly, may be wrong, but they have nothing to do with the business in hand. At a proper time I shall be ready to defend them. At present I choose not to be diverted from the issue before us.
Putting aside irrelevant questions, and presenting the single point in issue, the case becomes too plain for argument. It is simply this: Will the Senate obey an existing statute? But here we must consider the meaning of the statute.