CONGRESS, : 



225 



may unquestionably prescribe the form in 

 which it is to be administered. Variations of 

 form are quite immaterial. The form adopted 

 originally was prescribed by the first act of the 

 first Congress of the United States, and will 

 be found at page 23 of the first volume of the 

 Statutes at Large. I refer to it both for its 

 simplicity and to show the views which that 

 body took of the authority they were exer- 

 :. that it was merely the prescription of 

 rm of an oath required by the Constitu- 

 tion.'' The first section is : 



That the oath or affirmation required bv the sixth 

 article of the Constitution of the United States shall 

 be administered in the form following, to wit : " I, 

 A B, do solemnly swear or affirm (as the case may 

 .t I will support the Constitution of the United 

 States. 



" The power assumed in that act was merely 

 to prescribe the form of the oath required by 

 the Constitution, by legislation, and that power 

 is not questioned. I cannot doubt that as re- 

 gards members of Congress either House might 

 have prescribed the form by its own resolution ; 

 but for the sake of uniformity, as the oath is 

 required by the Constitution, of course it was 

 wiser that a general provision should be made 

 by legislation. Indeed, this law recognizes the 

 fact that either House would have po^ 

 that authority, because it provides that the 

 oath shall be administered within three days 

 to every member, and also to the members and 

 the Speaker of the House of Eepresentatives, 

 who had not taken a similar oath by virtue of 

 a resolution of the House. 



" The second objection to the constitutional- 

 ity of this act is that it is in conflict with the 

 fifth article of the amendments to the Consti- 

 tution of the United States. The fifth article 

 of the amendments to the Constitution provides 

 that 



Xo person shall be held to answer for a capital or 

 otherwise infamous crime unless on a presentment 

 or indictment of a grand jury, except in cases aris- 

 ing in the land or naval forces, or in the militia, 

 when in actual service in time of war or public dan- 

 ger; nor shall any perso_n be subject for the same 

 offence to be twice put in jeopardy of life or limb ; 

 nor shall he be compelled in any criminal case to be 

 a witness against himself, nor be deprived of life, 

 liberty, or property, without due process of law. 



" Mr. President, this article is a restriction 

 upon power, intended to secure individual 

 rights against the aggressions of Government, 

 as, indeed, are all the first ten amendments 

 adopted immediately after the formation of the 

 Constitution. In one form or another, similar 

 .imitations of power have been incorporated 

 into the constitution of every State in this 

 Union. The principle comes to us from Magna 

 Charta, though in England it is but a restraint 

 on the Crown, Parliament, in their theory of 

 government, being the ultimate power and 

 omnipotent ; but in this country we hold that 

 the sovereignty is in the people, and both in 

 the General and State governments limitations 

 upon power apply to all branches of govern- 

 VOL. iv.- -15 A 



ment. The limitation in this article is one of 

 the great guarantees of civil liberty in freo 

 governments, and should be liberally expound- 

 ed. If those guarantees are to be frittered 

 away by a narrow construction, then indeed 

 will written constitutions, which in the past 

 have been the pride and glory of American 

 statesmen and the American people, becomo 

 unmeaning nullities and the frailest of barriers 

 against the eneroachments of despotism and 

 tyranny. 



" By this act of 1862 every one who is re- 

 quired" to take the oath it prescribes is ' held to 

 answer ' for a capital crime ; and if he refuses, 

 whether guilty or not guilty, the law assumes 

 for its own purposes his guilt, and punishes 

 him by disqualification and a refusal of his 

 rights. He is deprived of those rights without 

 due process of law. The legal presumption 

 of innocence is reversed as to every citizen, 

 and this law, without accusation, without trial, 

 without proof, and without conviction, inflicts 

 punishment as a consequence of silence. It 

 seeks to ascertain facts in a peculiar manner 

 unknown to the common law, and prohibited 

 by the Constitution, not by the judgment of a 

 court of competent jurisdiction, but by a 

 forced confession of the offender, and holds his 

 silence as evidence of guilt. Xo matter how 

 legitimate or desirable the object to be at- 

 tained the exclusion of persons guilty of trea- 

 son from Congress such means of effecting it 

 are repugnant to the Constitution, and cannot, 

 therefore, be lawfully used. 



" But, sir, there is still a third objection to 

 this act. The act is repugnant to the second 

 section of the second article of the Constitu- 

 tion. By the second section of the second 

 article of the Constitution the pardoning power 

 is vested exclusively in the President of the 

 United States : 



He shall have power to grant reprieves and pardons 

 for offences against the United States, except in cases 

 of impeachment. 



" It is an executive authority, exclusively in 

 the President, and the effect of the pardon is 

 that it absolves the party from all the conse- 

 quences of his crime, and when pardoned ho 

 stands with the same rights as if the crime had 

 never been committed. I am supposing a case 

 where a party, has really been guilty of these 

 offences, and of course could not take this oath, 

 and yet has been pardoned by the President. 

 While I would oppose the Executive in any en- 

 croachments upon the power of the Legisla- 

 ture or the assumption of any powers not 

 granted to him, I would equally sustain him in 

 the exercise of all the authority which has 

 been delegated to him by the Constitution. 

 Suppose a southern citizen who has voluntarily 

 borne arms against the United States during 

 this revolt, becoming convinced of his error 

 while the war continues, should return to his 

 allegiance, and be pardoned by the President, 

 and be elected to the Senate by a Legislature 

 whose authority to elect you recognized. He 



