224 



CONGRESS, U. S. 



take the matter into consideration, and express 

 their own opinion, after considering as to the 

 true operation of the act as it stands. 



" Upon the other question, to which the hon- 

 orable memher from Illinois has referred as one 

 over which, as he supposes, the committee has 

 no right, and the body can give the committee 

 no right, I submit that perhaps the chairman 

 of the committee is mistaken. He thinks there 

 is no authority to refer to a committee the 

 question whether an act upon the statute-book 

 is constitutional or not. I beg him to recon- 

 sider that opinion,, and if he does I incline to 

 think he will come to a different conclusion. 

 The act, as long as it stands upon the statute- 

 book, is in one sense obligatory ; it is appar- 

 ently the law of the land ; but if, in point of 

 law, it be repugnant to the Constitution of the 

 United. States, then it is not the law of the 

 land ; and if it should, upon investigation, be 

 - found that Congress had not authority to pass 

 ' this act, Congress owes it to itself that it should 

 repeal it." 



Mr. Collamer, of Vermont, said : " The rule 

 proposed is to give a practical construction to 

 the act by saying that it extends to Senators, 

 and that they shall take the oath. I at present 

 have no opinion to express in relation to that 

 question. That is the question, and that being 

 the question, I understand that the Senator 

 from Delaware desires that it may go to the 

 Judiciary Committee. What can be the ob- 

 jection to that, seriously ? " 



Mr. Sumner, of Massachusetts, replied : Is 

 there any Senator who is not ready at this mo- 

 ment to vote on the question of the constitu- 

 tionality of that act of Congress ? The Senate 

 in passing the act has already given its opinion 

 upon its constitutionality. Is there any Senator 

 who is not ready to vote at this moment on the 

 question whether or not that act of Congress 

 is applicable to Senators and members of the 

 House of [Representatives ? I doubt if there is 

 any single Senator who needs any light on this 

 question. I doubt if there is any one who has 

 a particle of doubt upon it. There are Sena- 

 tors, I dare say, who have already made up 

 their minds that the act is not constitutional, 

 or that it is not applicable to members of this 

 body ; and there are other Senators who have 

 made up their minds just the contrary ; but I 

 ask if there is any Senator who will confess any 

 real doubt on the question. Some few may be 

 one way, and others may be the other way. 

 But whether one way or the other way, their 

 minds are made up. 



Mr. McDougall, of California said : " I know 

 of no more grave matter that can come before 

 the Senate than the question which is now pre- 

 sented to us. I can see no reason why the 

 Senate should refuse to refer it. It is my opin- 

 ion that a Senator of the United States is a con- 

 stitutional officer, and that in occupying his 

 place, he is not subject to any thing except what 

 the Constitution dictates. That is my opinion, 

 and it is very near my conviction ; but I am 



prepared to be informed by the Judiciary Com- 

 mittee. 



The question of reference was further debated 

 and lost yeas, 15 ; nays, 26. The postpone- 

 ment of the subject for a few days was then 

 carried. 



On the 21st the question came up again, and 

 on a motion to postpone, Mr. Bayard, of Dela- 

 ware, stated the facts relative to the original 

 bill and the proceedings under it, and desired 

 a further postponement, to prepare his views 

 on the question of law. A further postpone- 

 ment was made, after urgent objections by Mr. 

 Sumner, to the 19th of January, when Mr. Bay- 

 ard addressed the Senate. He said ; " As I am 

 the only member of the Senate present at this 

 session who has not taken the oath, it is but a 

 rational inference that the rule now proposed 

 is intended to operate personally upon me, 

 although I was sworn in at the special session 

 and acted as a Senator both on committees and 

 in the Senate since my reelection in March last 

 for the term of six years, ending on the 3d of 

 March, 1869. In the objections, however, 

 which I have to present to this proposed rule, 

 I shall consider it without reference to any 

 personal effect it may have upon my own 

 action. 



" The adoption or rejection of this rule in- 

 volves two general questions : First, is the 

 action on which it professes to be founded 

 repugnant to the Federal Constitution, or is 

 it within the powers delegated to Congress ? 

 Second, is a member of the Senate included by 

 its provisions when construed according to the 

 language and meaning of the Federal Consti- 

 tution ? 



" This act of July 2, 1862, is repugnant to at 

 least three, I think four, provisions of the 

 Federal Constitution. It is invalid because 

 it prescribes a further qualification for a mem- 

 ber of Congress before entering upon the per- 

 formance of his duties. This was the question, 

 and the only question, argued before the pas- 

 sage of the law, or noticed in the debate. 



" The third clause of the third section of 

 article one of the Constitution prescribes the 

 qualifications of a Senator age, residence, and 

 citizenship : the age thirty years ; residence at 

 the time of election in the State which elects 

 him ; and citizenship for nine years preceding 

 the election. The third clause of the sixth arti- 

 cle requires that Senators and Representatives 

 shall be bound by oath or affirmation to sup- 

 port the Constitution. Does this provision 

 admit any oath varying in substance from the 

 oath so required ? It has been admitted, and 

 indeed cannot well be denied, than no oath 

 other than that of which the form is prescribed 

 in the Constitution can be imposed upon the 

 President of the United States ; and upon the 

 same principle the substance of the oath pre- 

 scribed for Senators and Representatives, and 

 members of the State Legislatures, and all 

 offices of the States as well as of the United 

 States, must be adhered to, though Congress 



