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LOYALTY IN THE SENATE: THE IRON-CLAD
OATH FOR SENATORS.
SPEECH IN THE SENATE, ON A NEW RULE REQUIRING THE OATH OF
LOYALTY FOR SENATORS, JANUARY 25, 1864.
By an Act of Congress of July 2, 1862, a new oath of office was pre. scribed in the following terms :
“That hereafter every person elected or appointed to any office of honor or profit under the Government of the United States, either in the civil, military, or naval departments of the public service, excepting the President of the l'nited States, shall, before entering upon the duties of such office, and before being entitled to any of the salary or other emoluments thereof, take and subscribe the following oath or affirmation.”
Then follows the oath or affirmation, as follows:
“I, A. B., do solemnly swear (or affirm) that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto; that I have neither sought nor accepted nor attempted to exercise the functions of any office whatever, under any authority or pretended authority in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power, or constitution, within the United States, hostile or inimical thereto. And I do further swear (or affirm) that to the best of my knowledge and ability I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God."
The Act then provides :** Which said oath, so taken and signed, shall be preserved among the files
of the Court, House of Congress, or Department to which the said office may appertain."1
This oath was popularly known as “the Iron-Clad Oath."
On the organization of the Senate, March 4, 1863, being the first organization after the statute requiring the oath, it became necessary to consider its applicability to the Senate. Debate ensued, which can be understood only by a preliminary explanation.
The Senate was organized, in the absence of the Vice-President, by the choice of Hon. Solomon Foot, of Vermont, as President pro tempore. The oath to support the Constitution was administered to him by Mr. Foster, of Connecticut, but the additional oath was omitted. The President pro tempore then proceeded to say :
“ Senators elect and Senators whose term commences under a reëlection at this time will receive the oath of office in the order in which their names will be called by the Secretary”
The Secretary then called the names of a long list of Senators, who came forward and took the customary oath. But the President pro tempore did not offer to administer the additional oath ; nor, at the time of qualification, was anything said with regard to it. After the conclusion of the ceremony, Mr. Trumbull, of Illinois, said :
“I desire to call the attention of the President of the Senate, and of the Senate itself, to an Act of Congress approved 20 July, 1862.”
Then, reading the Act, he added :
"I do not know that any motion in regard to it is necessary, further than calling the attention of the presiding officer and of the Senate to the law.”
The President pro tempore said :
“ The Chair presumes it is sufficient to call the attention of Senators to that duty, and that that duty will be performed as required by law.”
Nothing, however, was done by the Chair or by Senators.
The next day, 5th March, two other Senators, Mr. Hendricks and Mr. Sprague, came forward to be qualified. The Chair proceeded to aılminister to these Senators the usual oath to support the Constitution, but did not administer the additional oath, and these Senators took their seats. Shortly afterwards, during the session of that day, on a call of the yeas and nays, all these Senators were called, and answered to their names.
1 Statutes at Large, Vol. XII. p. 502.
Immediately after this call, Mr. Sumner moved an additional rule of the Senate, requiring that the oath or affirmation prescribed by Act of Congress of July 2, 1862, should be taken and subscribed by every Senator in open Senate before entering upon his duties.
On the next day, 6th of March, Mr. Bayard, of Delaware, who had been absent before, came forward to be qualified. The Chair, as in the other cases, administered the oath to support the Constitution, but omitted the additional oath, and Mr. Bayard took his seat. Afterwards, on this day, Mr. Sumner called up the proposed rule for consideration, and objected to an executive session until the question of the rule was settled, as follows.
"Here is a statute of Congress, and the question is, whether the Senate is going to set an example of obedience to it or of disobedience; that is all..... If the Senate now choose to go into executive session, they choose to enter upon most important duties in disregard of an Act of Congress which they have assisted in putting upon the statute-book.”
On coming out of executive session, which was ordered, the Senate proceeded with the consideration of the proposed rule, when Mr. Sumner spoke in vindication of it, concluding as follows.
* And now, Sir, as I conclude, let me say that I desire to take and subscribe the new oath in open Senate, that I may in all respects qualify myself for the discharge of my duties as a Senator. Others will do as they please, or as the Senate shall require. But I hope that I may appeal to the Chair to administer that oath to myself, or to direct that it shall be administered. With the expression of this desire I take my seat.”
The President pro tempore made no offer to administer the oath, but said simply :
“The subject is under debate.”
The debate was continued until the Senator from Illinois (Mr. TRUMBULL] proposed that the Chair should proceed to administer the oath, while Mr. Sumner expressed a hope that the Chair would consent to administer the oath to him.
Shortly afterwards the President pro tempore said :
“The Chair proposes now to take and subscribe this oath, in pursuance of the law of 2d July last, and, that being done, the Chair will administer the oath to such members as will voluntarily take it.”
The oath was then administered to Mr. Foot by Mr. Foster. Resuming the chair, the President pro tempore then said :
“The Chair will now direct the Clerk to call, in alphabetical order, the names of all Senators who have been elected or reëlected since the 20 July, 1862, that being the day of the approval of the Act; and such Senators present, whose names shall be called, as choose to do so, will come forward to the Secretary's desk and receive the oath of office administered by the Chair, after which they will have an opportunity to subscribe the oath."
The Senators present, whose names were called, some of them after delay, came forward and took the oath ; and then, at the suggestion of the Chair, Mr. Sumner withdrew the resolution. The Senator from Delaware [Mr. BAYARD) was not then present.
Before withdrawing the resolution, Mr. Sumner, in reply to Mr. Reverdy Johnson, of Maryland, again vindicated the proposed rule, insisting that the statute was applicable to Senators as "civil officers,” concluding as follows.
It is our duty to guard the loyalty of this Chamber. In requiring that a person shall purge himself with regard to the past, we simply take a new assurance of fidelity for the present. Others may think that Jefferson Davis, Robert Toombs, or Judah Benjamin may resume his seat in this body, on taking a simple oath to support the Constitution. I do not think so; and I gladly seize the earliest opportunity, since the commentary of the Senator from Maryland, to declare my conviction that no person, whose loyalty is not manifest to the Senate, can be allowed to approach your desk and take the oath of a Senator. The Senate must shut the door upon him. This is not the first time that I have made this declaration : nor have I contented myself with making the declaration; I have argued it. Nothing is clearer than this : a traitor cannot be a member of the Senate. But a person who cannot take this oath, retroactive though it be, must have been a traitor. Once a traitor, always a traitor, unless where changed by pardon or amnesty.
I know not what changes may be required by changing events. For myself, I shall always welcome every act of just clemency or condonation. But for the present the statute is wise and conservative. It only remains that we should stand by it.
At the next session of Congress Mr. Sumner returned to this ques. tion. December 17, 1863, he submitted a resolution proposing a new rule.
“ Resolred, That the following be added to the rules of the Senate:
"The oath or affirmation prescribed by Act of Congress of July 2, 1862, to be taken and subscribed before entering upon the duties of office, shall be taken and subscribed by every Senator in open Senate before entering upon his duties. It shall also be taken and subscribed in the same way by the Secretary of the Senate; but the other officers of the Senate may take and subscribe it in the office of the Secretary."
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.
( R. 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.