CONGRESS, 1 



223 



William B. Washburn, Wilder, Windom, and Wood- 

 bridgr 



XAYS Messrs. James C. Allen, Ancona, Augustus 

 C. Baldwin, Bliss, Chanler, Cox, Cravens, Dawson, 

 Dennison, Eden, Eldridge, English, Finck, Grider, 

 Griswold, Harrington, Herrick, Holman, Philip John- 

 son, Kalbfleisch, Law, Lazear, Long, Mallory, Marcy, 

 McKinnev, Middleton, James R. Morris, Morrison, 

 John O'Neill, Pruyn, Samuel J. Randall, Robinson, 

 Rogers, John B. Steele, Wheeler, Chilton A. White, 

 Wmfield, and Teaman 39. 



In the Senate, on June 20th, Mr. Merrill, of 

 Maine, offered the following bill, which was 

 reterred to the Judiciary : 



Be it enacted, That upon all arrests under section 6, 

 . of chapter 200, of an act approved the 17th of July, 

 iail shall be admitted, and such bail, on the 

 demand of the party so arrested, may be taken be- 

 fore any judge of the United States, any chancellor, 

 judge of a supreme or superior court, or chief or first 

 judge of court of common pleas, of any State, who 

 shall exercise their discretion therein, regarding the 

 nature and circumstances of the offence, and of the 

 evidence and of the usages of law. 



In the Senate, on the 18th of December, the 

 following resolution, previously offered by Mr. 

 Sumner, was taken up from the table : 



R&ohed, That the following be added to the rules 

 of the Senate: " The oafh or affirmation prescribed 

 by act of Congress of July 2, 1862, to be taken and 

 subscribed betore 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 mav take and subscribe it in the office 

 of the Secretary.'' 



Mr. Saulsbury, of Delaware, with a view to 

 have a judicial decision of the Senate whether 

 the oath prescribed by the act of Congress was 

 in conformity with the Constitution, offered the 

 following substitute : 



Jiesohed, That the Committee on the Judiciary be 

 instructed to inquire whether Senators and Repre- 

 sentatives in Congress are included within the pro- 

 visions of the act, entitled "An act to prescribe an 

 oath of office, and for other purposes," approved 

 July 2, 1S02; and whether the said act is in accord- 

 ance or in conflict with the Constitution of the United 

 States. 



Mr. Saulsbury said : " It was decided by the 

 Senate, on a solemn vote, in the early history 

 of this Government, that a Senator is not a 

 civil officer under the Government of the United 

 - ; and the act of Congress simply pro- 

 vides that this oath shall be taken by officers in 

 the civil or military service of the United 

 States. 



" Again, sir. the oath requires that a Senator 

 (if it be held to apply to Senators) shall purge 

 himself that he has not been in the past guilty 

 of certain acts. Just as competent is it for the 

 Senate to require that when a man presents 

 himself here with all the constitutional qualifi- 

 cations for a seat on this floor, he shall purge 

 himself that he has never been guilty of the 

 commission of an assault and battery, or any 

 other offence against either State or Federal 

 law." . 



Mr. Truinbull, of Illinois, in objection, said : 

 " I do not know, sir, that another decision upon 



that subject will be any more satisfactory than 

 the one which has already been made. The 

 law referred to could not have been enacted 

 without the sanction of this body ; and when 

 that law was nnder consideration, it was ob- 

 jected to as being unconstitutional. It was 

 argued in the Senate; that point was pre- 

 sented ; and the Senate, notwithstanding the 

 arguments that were presented against the 

 constitutionality of the proposed law, thought 

 proper to pass the bill. The House of Repre- 

 sentatives concurring, and the President ap- 

 proving the bill, it became the law of the land. 

 The Senate has decided that this law is con- 

 stitutional, by its passage ; and it is a novel pro- 

 ceeding, when it becomes the duty of Senators 

 to execute a law of the land, that in the first 

 place they are to refer the question whether 

 the law is the law of the land or not, to one of 

 the committees for consideration. It is as much 

 our duty to obey a law, as it is the duty of any 

 other citizen in any portion of the country to 

 do so." 



Mr. Saulsbury, in reply, urged that it had 

 never been decided by either House, or by any 

 other tribunal, that this act of Congress did 

 include members of either House, and said: 

 ' My colleague (Mr. Bayard) at the last session 

 appeared in this body, took the constitutional 

 oath, entered upon his duties as a Senator, 

 was here in open session, was here in secret 

 session, was here acting as a Senator after 

 the statement deliberately made by the Sen- 

 ator from Illinois, the chairman of the Judi- 

 ciary Committee, that those who chose to take 

 the additional oath might take it, and those 

 who chose not to take it need not take it. That 

 was at a time when a debate sprang up which 

 threatened to last several days, on the obliga- 

 tory character of this oath. Then, sir, at the 

 present session, after my colleague has acted in 

 this body, both in public and in secret session, 

 this order is introduced. All that my colleague 

 asks, all that I ask, is that before he is required 

 to take the oath, some committee of this body, 

 or the body itself, decide that the act applies to 

 members of the Senate and members of the 

 House of Representatives. Is there any thing 

 unreasonable in this I " 



Mr. Johnson, of Maryland, urged that two 

 questions were presented, thus : The first is, 

 what is the true meaning of the act of Congress 

 does it, or does it not embrace members of 

 Congress ? The other is, if it does embrace 

 members of Congress, whether Congress had 

 the constitutional power lo pass that act < 

 Xow, with reference to the first of these ques 

 tions, there can be no possible objection, that 

 I can see, to our having from the Judiciary 

 Committee a well-considered opinion. I do not 

 know that the proposed rule has been before 

 any committee of the body heretofore ; and I 

 think it will tend, perhaps, to establish the con- 

 struction of that act the one way or the other, 

 so as to determine all further controversy upon 

 the subject, if the Judiciary Committee will 



