Volume 8 — OFFICE OF SENATOR, AND ITS INCOMPATIBILITY WITH OTHER OFFICE.

Remarks in the Senate, on the Case of General Lane, of Kansas, January 13, 1862.

The question of the seat of Hon. James H. Lane, of Kansas, was referred to the Judiciary Committee of the Senate, at the extra session of July, 1861, when the Committee reported that he was not entitled to his seat. The consideration of the resolution was postponed to the present session.

It appeared, that, previously to the extra session, and before Mr. Lane had taken his seat as Senator from Kansas, he was designated by President Lincoln as Brigadier-General of Volunteers, and entered upon his public duties as such, but without any actual commission or formal appointment according to law. Afterwards, when informed that he could not be Brigadier-General and at the same time Senator, he abandoned the former post and was duly qualified as Senator. Meanwhile Governor Robinson of Kansas, assuming that Mr. Lane had so far accepted another office as to vacate his seat in the Senate, appointed Hon. Frederic P. Stanton in his place, and the Judiciary Committee affirmed the title of the latter.

January 13th, Mr. Sumner spoke against the report.

MR. PRESIDENT,—The Senator from Connecticut [Mr. Foster] has presented the objections to the seat of General Lane ingeniously and ably; but I must frankly confess that he fails to satisfy me. I could not resist the brief, but decisive, statement of the Senator from New York [Mr. Harris], to which we listened the other day; and the ampler argument of the Senator from New Hampshire [Mr. Clark], to which we have listened to-day, seems to leave little more to be said. I shall follow the latter without adding to the argument.

The language of the Constitution applicable to the case is explicit: “No person holding any office under the United States shall be a member of either House of Congress during his continuance in office.” But the question arises, Did General Lane hold any such office after he became Senator?

Not considering the case minutely, I content myself with briefly touching two points, either of which will be sufficient to secure his seat to General Lane.

1. At the time when the military appointment was received from the President, General Lane was simply Senator elect from Kansas, and not actually Senator. This cannot be questioned. Until he took the oath at your chair, Sir, he was Senator in title only, not in function. It is true, he already exercised the franking privilege; but this he will also exercise months after his term expires. The franking privilege was all that he possessed of Senatorial functions. On this point I read what is said by Mr. Cushing, in his elaborate work on the Law and Practice of Legislative Assemblies.

“Sec. 2. Refusal to qualify. One who is returned a member of a legislative assembly, and assumes a seat as such, is bound to take the oaths required of him, and perform such other acts as may be necessary to qualify him, if any, to discharge the duties of his office. If a member elect refuses to qualify, he will be discharged from being a member, with more or less of obloquy, or none at all, according to the circumstances of his case; but he cannot be expelled, because he cannot as yet discharge the duties of a member.”[122]

It is clear that the member elect is not invested with the office until qualified by taking the oath. If illustration of this rule be needed, it will be found in the Parliamentary History of Great Britain. Soon after the Revolution of 1688, two persons returned as members refused to take the oaths and were discharged. But there is an historic precedent almost of our own day. As the long contest for Catholic Emancipation in Great Britain was drawing to a close, Mr. O’Connell was elected by the County of Clare to a seat in Parliament. Presenting himself at the bar of the House of Commons, he refused to take the Oath of Supremacy, then required of all members, and was heard at the bar in support of his claim; but the House resolved that he was not entitled to sit or vote, unless he took this oath; and as he persisted in refusal, a writ was issued for a new election. Still later, the same question arose in the case of Baron Rothschild, the eminent banker of the Jewish persuasion, who, when elected as representative for the city of London, refused to take the oaths required, and on this account was kept out of his seat, until what is known as the Jews’ Relief Bill became a law. The conclusion is irresistible, that, until the oath was taken, General Lane had not entered upon his functions as Senator; and here the argument of the Senator from Connecticut, with regard to the effect of the oath, is strictly applicable. An oath in public, at your chair, Sir, being at once of record and sealing the acceptance of an office, is very different from the informal oath taken in private, at a distance, before a local magistrate, which is in the nature of an escrow, until recorded in the proper department.

2. Even if General Lane had been Senator, invested with the functions of the office, and completely qualified by taking the necessary oath, it is still clear that the military duties he had undertaken did not operate as a resignation. And here I remark, that, when it is proposed to unseat a Senator, to deprive him of a place in this body,—I might almost say to deprive him of his rank,—the evidence must be complete. It must be, according to that old phrase of the Common Law, “certainty to a certain intent in every particular.” If there be doubt, either in law or fact, the interpretation should be in his favor. But this case requires no such interpretation. It is true that General Lane had entered upon certain military duties, but he had assumed no military office under the Constitution of the United States. Colonel Baker, a late lamented member of this body, had assumed military duties also. Like General Lane, he, too, had come forward at the summons of the President. It is true that Colonel Baker acted professedly under a commission from a State. General Lane has latterly acted under a similar commission; but at the moment in question he was acting under certain informal and extra-constitutional proceedings of the President, rendered necessary by the exigencies of the hour. The President, by proclamation, undertook to organize an army. He called for volunteers, and also for additions to the regular army. All approved the patriotic act. But I am at a loss to understand how it is supposed that this proceeding can be made effective to oust a Senator of his seat. The act of the President was proper, just, and patriotic; but clearly, and beyond all question, it needed the sanction of Congress to be completely legal. Without such sanction, the army must have drawn its breath from the proclamation alone, and every commission would have been merely a token of Presidential confidence, liable to be defeated, first, by the failure of Congress to sanction the proclamation, and, secondly, by refusal of the Senate to advise and consent to the nomination. It was only when the Act of July 22d was passed, that the President was authorized to appoint new Brigadier-Generals. Then it was, for the first time, that a legal addition was made to the national army, and that this very office was legally created which General Lane was charged with accepting some time in June.

I do not forget the retroactive statute passed on the last day of the session, declaring that all the acts, proclamations, and orders of the President respecting the army and navy, and calling out or relating to the militia or volunteers, are approved, and in all respects legalized and made valid, to the same intent and with the same effect as if they had been issued and done under the previous express authority and direction of Congress. The clause in the Constitution against ex post facto laws has been restricted by judicial interpretation to criminal matters; but I doubt if even this much questioned interpretation would sanction such a retroactive effect as is now proposed. So much, at least, I do know: the Senate is judge, without appeal, with regard to the seats of its members; and I am sure it will not unseat a Senator by a strained application of an ex post facto statute.

The conclusion is twofold: first, that at the time in question General Lane was not a Senator; and, secondly, that at the time in question he was not a Brigadier. The whole case is unreal. It is a question between an imaginary Senator and an impossible Brigadier; or rather, it is a question whether an imagined seat in this body was lost by alleged acts under an impossible military commission. The seat of the Senator did not become a reality until some days after General Lane is supposed to have vacated it; and the military commission did not become a possibility until several weeks after General Lane had abandoned it.

Of course, with this view of the law on these two decisive points, it becomes entirely unnecessary to consider the multifarious and indefinite evidence with regard to what General Lane did in the way of accepting his military commission; because nothing that he did, and nothing that he could do, under that impossible commission, would operate legally in the present case.

In reply to Mr. Davis, of Kentucky, Mr. Sumner spoke further.

I have no desire to follow at length the Senator from Kentucky, but I venture to ask the attention of the Senate simply to one of the points he has presented. According to him, General Lane, when elected as Senator, by the mere fact of his election became Senator, so that the Constitution operated to create an incompatibility between the function of Senator and the new office which it is said he accepted. The Senator from Kentucky, as I understood, argued that the function of the Senator, at least for the purpose of this case, commences with his election.

Mr. Davis. Will the Senator from Massachusetts permit me to ask him a question?

Mr. Sumner. Certainly, if the Senator will allow me just to make my statement. The Senator, I say, assumes that the function of the Senator, at least for the purposes of this case, commences with his election; and in support of that assumption he quotes the Constitution of the United States, as follows:—

“No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office, under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time.”

Now, Mr. President, I most humbly submit that the clause of the Constitution just quoted is entirely inapplicable. It has nothing to do with the question. I say, with all respect to the Senator, he might as well have quoted anything else in the Constitution. It does not bear on the case. It relates to an entirely different matter. There is another associate clause which does directly bear on this question. It is as follows:—

“And no person holding any office under the United States shall be a member of either House during his continuance in office.”

Those are the words, Sir, governing this case, and they conduct us directly to the question, when and at what time a person becomes a member of either House. That is the simple question.

Mr. Davis. Will the Senator now permit me?

Mr. Sumner. I will finish in one moment. Clearly he becomes a member of this body, so as to discharge his duties as Senator, and to be affected with the responsibilities of Senator, only when he has taken his oath at your desk, Sir,—not one minute before. There is nothing in the Constitution, there is nothing in the practice of any parliamentary body in this country, or in any other country, I think, pointing to any different conclusion. Here I cannot err. The language of the Constitution is sufficiently precise, and I feel confident that the practice of Congress and of other parliamentary bodies is sufficiently authoritative. Therefore the conclusion is inevitable, that, until the 4th of July, last summer, General Lane, chosen Senator by the people of Kansas, was simply Senator elect, possessed through courtesy of the franking privilege, but enjoying no other Senatorial function.

Now I am ready to answer any question of the Senator.

Mr. Davis. I would ask the Senator from Massachusetts if the office of Senator from the State of Kansas was vacant until General Lane qualified as a member of this body?

Mr. Sumner. In a certain sense I should say it was.

Mr. Davis. When he qualified, did or did not his office have reference to the time of his election, and take its date from the date of his election?

Mr. Sumner. I should say in a certain sense it did. I have already said that he had the franking privilege, and I presume he was entitled to the emoluments of the place, such as they are; but had he not been qualified, he could not have drawn pay. It was only by taking the oath that he was entitled to pay from the Secretary of the Senate.

Mr. Davis. The Senator knows well, that, assuming his premises to be true, whenever the Senator from Kansas consummated his election by taking his seat and taking the oath of office, his term dated back to the date of his election.

Mr. Sumner. The Senator must pardon me, if I cannot assent to his conclusion. He may have been a Senator to a certain extent, but not so as to create incompatibility with another office under the Constitution.

January 15, Mr. Sumner cited two precedents,—the case of Hammond v. Herrick,[123] and that of Elias Earle of South Carolina.[124]

The marginal note of the latter says:—

“Continuing to execute the duties of an office under the United States, after one is elected to Congress, but before he takes his seat, is not a disqualification, such office being resigned prior to the taking of the seat.”

January 16, the seat of Mr. Lane was affirmed, contrary to the report of the Committee, by the vote of the Senate,—24 yeas to 16 nays.