Indiana State sentinel. (Indianapolis, Ind.) 1861-1865, 1864-02-22
The Test Oath and the Reconstruc
ton of the Federal Union.
speech of Hon. Thos. A. Hendricks ON
the proposed Rule of the Senate
Requiring a Test oath of Senators.
Dsirered in he Ired States Ssnate, .llln 20. 1894

Representatives shall be bound 10y oath or affirm
alton to its support aud no other oath or affirm
alton taken by any Senator Representa-
tive until the present Congress- nor was il sought
to impose any other oath until by the act OF 2i
July, 1862, il was required that the party aSsum
ing any Office of the United States shall first by
solemn oath declare. not only his fidelity TO the
Constitution in the future but that in the past ne
has not voluntarily borne arms against the
United States, nor given aid, counteDance, coun-
sci. or encouragement TO persons in armed hos
tIlIty therein; and neither sought accepted
nor attempted to exercise the functions of any
Office under anv authority or pretended authority
in hostility to the United States, nor Welded
voluntary support to any pretended government,
authority, power, or constitution within the
United States hostile or inimical thereto. When
| took my seat in this Chamber as a Senator
from the State of Indiana. although did not
believe it could rightfully be required, yet. lest
my course might be misunderstood by some and
misconstrued BY Others and as there was nothing
in the oath to which | could not without any
reservation bind myself, l di not contest the
question. but voluntarily. upon what esteemed
proper explanation, complied with The require
ments of the act. But, sir, when it is now sought
by rule of the Senate. proposed by the Senator
from Massachusetts Mr.. Sumnerl to require
this oath of all Senator's who may hereafter de-
mand seats in this body. will not give the prop
osition my vote support. Whoever comes
here, being duly elected, and having the oualif-
cations prescribed by the Constitution. has right
to his seat, and his State may well demand il for
him. The right OF his State to be represented
by him is conferred by the Constitution, and can
not be denied or impaired by rule of this
body or by any act Ot Congress. | will not stop
to inquire whether the language of the act con
sidered in the light of established rules of con
structon and of adjudged cases. includes Sena-
tors and Representatives; hut will maintain that
if construed TO include them it is so far in con
hct with the Constitution and null and void
Nor will stop to question that terms may be
added to the oath of obei nee to the Constitu-
ton required of all officers. but such additional
terms cannot add 10 or take from the quali6ca-
tions prescribed by the Constitution. The Con-
stitutiun provides that no person shall be a Sen
atOr who shall not have attained the age of thirty
wears, and been nife years a citizen o. the United
Ssates. and who shall not. when elected. be an
nhabitant of that State for which he shall bt
chosen" person not thirty years of age or
who has not been nine years citizen, or who is
not an nhsbitant of the State for which he is
chosen, is not qualified TO he a Senator. but all
other persons qualified, and there is no power
in the Government 70 disqualify or render them
ineligible. By declaring these three circumstan
ces of disqualification, touching the age citizen
ship. and residence of the party, the Constitution
excludes every other disqualification. The rule
Of construction is well stated by Story i'm his
work on the Constitution. He says:
alt would seem but fair reasoning, upon the
plainest principles of Interpretation, that when
the Constitution established certain qualifca-
tions as necessary Tor Office il meant TO exclude
all Others prerequisites. From the nature
of such provision, the affirmation OF these quail
ifcations would seem to imply a negative of all
others" =
equivalent to a power TO vary them
The Senator from Illinois Mr.. Trumbulll cit
ed the oath required of United Stdtes judges by
the judiciary act of 1859. and claimed it as
conclusive precedent and authority upon the
question. With great Difference to that gentle
man, both because of his conceded ability as a
jurist and because OF his position in this body at
the head of the Judiciary Committee. cannot
admit that he has found either precedent or an
authority for the measure he now advocates 1t
is true that the Constitution requires the judges
to take an oath OF obedience to it; and il is also
true that the act OF 1883 adds terms tn that oath:
but has il escaped the attention of the Senator
that the oath of office required of the judges is
in no respect retroactive, but is altogether pros
pective and looks onlyrto faithful discharge of
the duties OF their high office? BY the terms of
that oath, no qualifications are superadded to the
qualifications prescribed by the Constitution. and
no persons by it excluded from the bench
who are eligible under the Consultation. When
a Judge of the Unite'i States courts swears that
he will obey the Constitution and ''wll admins
ter jastce without respect to persons, and do
equal right TO the poor and the rich and impair
italy discharge and perform all the duties Ia
cumbent upon him, he gives sUlemn assurance
of official ideiity in the future, but he looks not
over his past lie nor is he required 20 forswear
either f0lies. faults, or crimes. He is not denied
the Office because he cannot that he is
without fault in respect to the law, the COnstitu-
ton or it may be. his allegiance.
But, sir, the measure nov before the Senate is
almost if not altogether otherwise IL Is not
prospective, nor does il seek to secure fidelity in
Office; but for the most part is retrospective, and
seeks to exclude from seats in this Chamber per
sons who are not excluded by the Constitution
and to establish qualifications unknown to that
instrument.
/ 1t cannot be said that the proposed rule re
quires an oath but does not prescribe quafca
ton, Tor if the oath be required entire class is
| excluded; as efIectually excluded as it the cause
were interpOlated among the disquali6cations
prescribed in the Constitution. Could this body
i by rule, or Congress by law, require Senators
before taking their seats take oath that they
are over forty years of age, or that they have
have been twenty one years citizens of the
| United Statesi All will agree that it could not
be done. And why not, sir? For the obvious
reason that it would be going beyond the CON
stitutional dsqualifcations, and attempting tc
/ exclude classes not excluded by that instrument
The measure before the Senate is proposed by
the Senator from Massachusetts, (Mr. Sumner
i Will that Senator allow me to remind him that
/ when he took his seat in this body twelve wears
\ ago. Senators of his political views were in
small minority; that both branches Of Congress
were controlled by men who. standing upon thu
adjudcations OF every department of the govern
ment, believed that the Constitution not onl,
allowed. but required Legislation on the part ol
Congress securing the return of fugitive slaves
and that good faith as veil as the harmony o
the sections and the unity of the republic. re-
qnired that the laws enacted for that purpos'
should be faithfully executed. As understand
that Senator came with avowed convictions adj
verse to the constitutional power of Congress t'
enact laws upon that subject, and disclaiming al
obligation the part OF The citizen to aid in lhe
enforcement. Now. sir had Congress by law
or the Senate by rule, required that Senator
/ before taking his seat by so.emn oath or aifirma
ton to declare that in the past he had. given M
= countenance, counsel or encouragement TO per
sons engaged in resisting the execution Of th
fugitive slave laws, and that in future he woul,
he loyal to their requirements and obligations
what course would the honorable Senator thel
have felt il bis duty to pursuef If animated b,
the lefty sentiments Of the great men his Stat
had produced. he would have returned to her
and at her feet laid down the Commission she ha,
put in his hands and the robes of Office she ha,
{. placed upon his shoulders. aud made report 70 he
that be had-been denied his seat in a Senate o
equals" that terms had been required of him un
known to the Constitutions; aud that il was 70
the ancient Commonw ealth TO maintain her Fed
eral rights and equality, and 10 vindicate he
wounded honor To resist the laws OF the Unite
-. - t