More than once at other times I have discussed the question of loyalty in the Senate. But this was anterior to the adoption of the Fourteenth Constitutional Amendment. The case is plainer now than then, inasmuch as there is now an explicit text requiring loyalty as a “qualification.” Formerly we were left to something in the nature of inference; now the requirement is plain as language can make it.
By the new Amendment it is provided that “no person shall be a Senator or Representative in Congress, … who, having previously taken an oath, as a member of Congress, or as an officer of the United States, … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
These words are precisely applicable to the present case. They lay down a rule from which there is no appeal; and this rule is not merely in the statutes, but in the Constitution. It is the plain declaration that loyalty is a requirement in a Senator and Representative. If we do not apply it to ourselves now, it is difficult to see with what consistency we can apply it to others. Your course here will affect the meaning of this Constitutional Amendment, if not its validity for the future.
I do not stop to argue the question if that Amendment is now a part of the Constitution; for I would not unnecessarily occupy your time, nor direct attention from the case which you are to decide. For the present I content myself with two remarks: first, the Amendment has already been adopted by three fourths of the States that took part in proposing it, and this is enough, for the spirit of the Constitution is thus satisfied; and, secondly, it has already been adopted by “the Legislatures of three fourths of the several States” which have Legislatures, thus complying with the letter of the Constitution. Therefore, by the spirit of the Constitution, and also by its letter, this Amendment is now a part of the Constitution, binding on all of us. As such I invoke its application to this case. In face of this positive, peremptory requirement, it is impossible to see how loyalty can be other than a “qualification.” In denying it, you practically set aside this Amendment.
But, even without this Amendment, I cannot doubt that the original text is sufficiently clear and explicit. It is nowhere said in the Constitution that certain specified requirements, and none others, shall be “qualifications” of Senators. This word “qualifications,” which plays such a part in this case, occurs in another connection, where it is provided that “each House shall be the judge of the elections, returns, and qualifications of its own members.” What these “qualifications” may be is to be found elsewhere. Searching the Constitution from beginning to end, we find three “qualifications,” which come under the head of form, being (1.) age, (2.) citizenship, and (3.) inhabitancy in the State. But behind and above these is another “qualification,” which is of substance, in contradiction to form only. So supreme is this, that it is placed under the safeguard of an oath. This is loyalty. It is easy to see how infinitely more important is this than either of the others,—than age, than citizenship, or than inhabitancy in the State. A Senator failing in either of these would be incompetent by the letter of the Constitution; but the Republic might not suffer from his presence. On the other hand, a Senator failing in loyalty is a public enemy, whose presence in this council-chamber would be a certain peril to the Republic.
It is vain to say that loyalty is not declared to be a “qualification.” I deny it. Loyalty is made a “qualification” in the Amendment to the Constitution; and then again in the original text, when, in the most solemn way possible, it is distinguished and guarded by an oath. Men are familiarly said to “qualify,” when they take the oath of office; and thus the language of common life furnishes an authentic interpretation of the Constitution.
But no man can be allowed to take the oath as Senator, when, on the evidence before the Senate, he is not competent. If it appear that he is not of sufficient age, or of the required citizenship or inhabitancy, he cannot be allowed to go to that desk. Especially if it appear that he fails in the all-important “qualification” of loyalty, he cannot be allowed to go to that desk. A false oath, taken with our knowledge, would compromise the Senate. We who consent will become parties to the falsehood; we shall be parties in the offence. It is futile to say that the oath is one of purgation only, and that it is for him who takes it to determine on his conscience if he can take it. The Senate cannot forget the evidence; nor can its responsibility in the case be swallowed up in any process of individual purgation. On the evidence we must judge, and act accordingly. The “open sesame” of this Chamber must be something more than the oath of a suspected applicant.
According to Lord Coke, “an infidel cannot be sworn” as a witness. This was an early rule, which has since been softened in our courts. But, under the Constitution of the United States and existing statutes, a political infidel cannot be sworn as a Senator. Whatever may be his inclination or motive, he must not be allowed to approach your desk. The country has a right to expect that all who enter here shall have a sure and well-founded loyalty, above all question or suspicion. And such, I insist, is the rule of the Constitution and of Congress.
As if to place the question beyond all doubt, Congress by positive enactment requires that every Senator, before admission to his seat, shall swear that he has “voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility” to the United States.[82] Here is little more than an interpretation of the Constitution. The conclusion is plain. No person who has voluntarily given even “countenance” or “encouragement” to another engaged in the Rebellion can be allowed to take that oath.
After this statement of the rule, the question arises, if Philip F. Thomas can be permitted to take the oath at your desk, or, in other words, to “qualify” as a Senator of the United States. Is he competent? This is a question of evidence.