[Thirty-seventh Congress-Second session.]

BENJAMIN STARK,

Senator from Oregon from February 27, 1862, till September 13, 1862.

January 6, 1862, the credentials of Mr. Stark, who had been appointed by the governor of Oregon to fill a vacancy, were presented in the Senate. A resolution was submitted that the oath be not administered to Mr. Stark, and that his credentials be referred to the Committee on the Judiciary. January 10, after a debate on the prima facie right of Mr. Stark to the seat, the resolution was agreed to. February 7, the committee," "without expressing any opinion as to the effect of the papers before them upon any subsequent proceedings in the case," reported a resolution that Mr. Stark was entitled to take the oath of office. Mr. Trumbull, dissenting, "conceived that it was the duty of the committee to have expressed its opinion on the evidence of disloyalty before it, and to have reported in favor of or against the swearing in of the Senator, as the evidence should warrant, and not allow him to be first sworn and leave the question of his loyalty to be subsequently determined on a motion to expel." The report was accompanied by testimony. February 27 the resolution reported by the committee passed after amendment, and Mr. Stark_took his seat. February 28 a resolution was submitted that the papers relating to the loyalty of Benjamin Stark be referred to the same committee with instructions to investigate the charges preferred against him. March 18 this resolution passed the Senate, having been so amended that the papers were referred to a select committee instead of to the Committee on the Judiciary. April 22 this committee reported the conclusions from the facts proved, one of which was "that the Senator from Oregon is disloyal to the Government of the United States." One member of the committee did not concur in this conclusion. May 7 a resolution was submitted that Mr. Stark, who had been found disloyal by a committee of the Senate, be expelled, which resolution was determined in the negative, June 6, by a vote of 16 yeas to 21 nays.

The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from Senate Journal, 2d sess. 37th Cong.; the report (majority and minority) of the Com mittee on the Judiciary (excepting the evidence), from Senate Reports, 2d sess. 37th Cong., No. 11; and the report of the select committee from Senate Reports, Ib. No. 38. Special references to the debates of each day are inserted below.

MONDAY, January 6, 1862.

Mr. Nesmith presented the credentials of the Hon. Benjamin Stark, appointed a Senator in Congress by the governor of the State of Oregon to fill the vacancy occasioned by the death of the Hon. Edward D. Baker; which were read.

Mr. Fessenden moved that the oath prescribed by law be not administered to Mr. Stark, and that his credentials, together with certain papers presented by Mr. Fessenden, be referred to the Committee on the Judiciary.

After debate,

On motion by Mr. Bayard,

Ordered, That the motion of Mr. Fessenden lie on the table.

[The debate is found on pages 183-185 of the Congressional Globe, part 1, 2d sess. 37th Cong.]

THURSDAY, January 9, 1862.

On motion by Mr. Bayard that the Senate proceed to the consideration of the motion submitted by Mr. Fessenden the 6th instant, that the oath prescribed by law be not administered to Mr. Stark, and that his credentials, together with certain papers presented by Mr. Fessenden, be referred to the Committee on the Judiciary, it was determined in the negative.

FRIDAY, January 10, 1862.

The Senate resumed the consideration of the motion submitted by Mr. Fessenden the 6th instant, "that the oath prescribed by law be not administered to Mr. Stark, and that his credentials, together with certain papers presented by Mr. Fessenden, be referred to the Committee on the Judiciary."

On motion by Mr. Bayard to amend the motion of Mr. Fessenden by striking out the word "not,"

After debate, it was determined in the negative-yeas 9, nays 29.

On motion by Mr. Bayard, the yeas and nays being desired by one-fifth of the Senators present,

Those who voted in the affirmative are Messrs. Bayard, Bright, Latham, Nesmith, Pearce, Powell, Rice, Saulsbury, and Thomson.

Those who voted in the negative are Messrs. Anthony, Browning, Chandler, Collamer, Cowan, Davis, Dixon, Doolittle, Fessenden, Foster, Grimes, Hale, Harlan, Harris, Howe, Johnson, King, Lane of Indiana, Lane of Kansas, Morrill, Pomeroy, Sherman, Simmons, Sumner, Ten Eyck, Trumbull, Wade, Wilkinson, and Wilson.

On the question to agree to the motion of Mr. Fessenden, it was determined in the affirmative yeas 28, nays 11.

On motion by Mr. Saulsbury, the yeas and nays being desired by one-fifth of the Senators present,

Those who voted in the affirmative are Messrs. Anthony, Browning, Chandler, Collamer, Cowan, Davis, Dixon, Doolittle, Fessenden, Foster, Grimes, Hale, Harlan, Harris, Howe, Johnson, King, Lane of Indiana, Lane of Kansas, Morrill, Pomeroy, Sherman, Simmons, Sumner, Ten Eyck, Trumbull, Wade, and Wilson.

Those who voted in the negative are Messrs. Bayard, Bright, Carlile, Kennedy, Latham, Nesmith, Pearce, Powell, Rice, Saulsbury, and Thomson.

[The debate is found on pages 265–269 of the Congressional Globe, part 1, 2d sess. 37th Cong.]

FRIDAY, February 7, 1862.

Mr. Harris, from the Committee on the Judiciary, to whom were referred the credentials of the Hon. Benjamin Stark, with certain papers presented by Mr. Fessenden in reference thereto, submitted a report (No. 11), accompanied by the following resolution (resolution given below in report).

Mr. Trumbull asked and obtained leave to submit the views of the minority of the Committee on the Judiciary on the subject.

On motion by Mr. Sumner,

Ordered, That the report of the Committee on the Judiciary, with the views of the minority of the committee, and the accompanying papers, be printed.

[The debate is found on pages 696, 697 of the Congressional Globe, part 1, 2d sess. 37th Cong.]

REPORT OF COMMITTEE.*

[The committee consisted of Messrs. Trumbull (chairman), Foster, Ten Eyck, Cowan Harris, Bayard, and Powell.]

IN THE SENATE OF THE UNITED STATES.

FEBRUARY 7, 1862.-Read, and ordered to be printed.

Mr. Harris submitted the following report:

The Committee on the Judiciary, to whom were referred the credentials of Benjamin Stark as a Senator from the State of Oregon, with the accompanying papers, have had the same under consideration, and, without expressing any opinion as to the effect of the papers before them upon any subsequent proceedings in the case, they report the following resolution:

Resolved, That Benjamin Stark, of Oregon, appointed a Senator of that State by the governor thereof, is entitled to take the Constitutional oath of office.

VIEWS OF THE MINORITY

Of the Committee on the Judiciary (Mr. Trumbull) on the credentials of Benjamin Stark as a Senator from Oregon, and the papers presented on the subject.

FEBRUARY 7, 1862.-Ordered to be printed.

Unable to agree with the majority of the committee, to whom were referred the credentials of Benjamin Stark, with the accompanying papers, the undersigned submits the following views:

A preliminary question was raised in the Senate when this case was referred to the committee, whether it was competent for the Senate for any cause to refuse to allow a person to be sworn as a member of the Senate whose credentials were in proper form, and who possessed all the qualifications as to age, citizenship, and inhabitancy prescribed by the Constitution, and whether the only remedy which the Senate had to protect itself against the presence of an infamous person, a convicted felon, or an avowed and open traitor, was not by expulsion by a two-thirds vote after he should have been sworn into office. The Senate decided, after debate, to refer the credentials of Mr. Stark, with the accompanying papers, consisting of written statements and affidavits impeaching his loyalty, to the committee without allowing him to be sworn. A majority of the committee now report the case back, with a resolution that Mr. Stark is entitled to take the Constitutional oath, expressly stating that they do so "without expressing any opinion as to the effect of the papers before them upon any subsequent proceedings in the case." This reservation of opinion on the evidence could only have become necessary on the supThe accompanying documents are annexed to the report (pages 5-15), a reference to which is given in the head-note.

position that some subsequent proceedings might be taken in the case, referring doubtless to a motion to expel the Senator after he should have been admitted a member, for the reasons assigned in the accompanying papers, in effect establishing the principle that evidence of disloyalty, which might be sufficient to expel a member when admitted, was not sufficient to prevent his qualifying as a member. To this principle the undersigned cannot agree. He believes it was the duty of the committee to examine and pass upon the evidence before it, and if found insufficient to prevent Mr. Stark from taking the Constitutional oath, that it would also be insufficient to warrant his expulsion after he was admitted.

It is admitted that neither the Senate, Congress, nor a State can superadd other qualifications for a Senator to those prescribed by the Constitution, and yet either may prevent a person possessing all those qualifications, and duly elected, from taking his seat in the Senate. Does any one question the right of a State to arrest for crime a person duly qualified for and appointed a Senator, hold him in confinement, and thereby prevent his appearing in the Senate to qualify? Suppose a Senator, after his appointment, and before qualifying, to commit the crime of murder, would any one question the right of the State authorities where the crime was committed to arrest, confine, and, if found guilty, execute the murderer, and thereby forever prevent his taking his seat? Or, if the punishment for the offense was imprisonment, would any one question the right to hold the Senator in prison, and thereby prevent his appearing in the Senate?

Could the Senate in such a case expel him before he had been admitted to a seat? Or must he [be] brought from the felon's cell, be introduced into the Senate, and sworn as a member before his seat could be declared vacant? If not, must the State go unrepresented till the time for which he was appointed has expired? Or would it be competent for the Senate in such a case, by a majority vote, to declare the convict incompetent to hold a seat in the body, and thereby open the way for the appointment of a successor? It is manifest that the prescribing of the qualifications for a Senator in the Constitution was not intended to prevent his being held amenable for his crimes. The fact that the Constitution declares that Senators and Representatives "shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the sessions of their respective houses, and in going to and returning from the same, is conclusive that for those offenses they may be arrested. As a punishment for crime, then, it is clear that a Senator-elect, possessing all the Constitutional qualifications of age, citizenship, and inhabitancy, may be prevented from taking the oath of office. Congress has repeatedly acted upon the presumption that it was entirely competent for it to prescribe, as a punishment for crime, an inability forever afterwards to hold any office of honor, profit, or trust under the United States.

By a statute passed in 1790, any person giving a reward to a United States judge as a bribe to procure from him any opinion or judgment, and the judge receiving such bribe, are both declared to be forever disqualified to hold any office of honor, trust, or profit under the United States. By an act passed in 1853, any member of Congress after his election, and whether before or after he is qualified, who shall accept any reward given for the purpose of influencing his vote on any question which may come before him in his official capacity is declared incapable forever of holding any office of honor, trust, or profit under the United States. Similar laws, it is believed, exist in most of the States, prescribing as part of the punishment for particular offenses, such as dueling, bribery, and some others, a disqualification for holding any office under the State, and this notwithstanding the State constitutions may have prescribed the qualifications for members of their legislatures, of which the disqualification arising from the conviction for crime was not one. The power of Congress to prescribe the punishment for treason is expressly given by the Constitution, except that it cannot be made to work corruption of blood or forfeiture beyond the life of the person attainted. Does any one doubt the power of Congress under this clause of the Constitution to declare that a person convicted of treason should forever be incapable of holding any office under the United States? If this were done, would it be pretended that a convicted traitor was entitled to be sworn as a Senator? The clause of the Constitution prescribing the qualifications of Senators and Representatives could never have been intended to limit the power to make disqualification to hold those or any other offices a penalty for the commission of crime, especially treason. Its design, doubtless, was to produce uniformity of qualification in all the States, and to prevent any particular class of persons, such as ministers of the gospel, or others, from being excluded from these positions. If it be competent for Congress to make disqualification to hold office a punishment for an offense against the United States, then it is clearly competent for the Senate, which, by the Constitution, is made "the judge of the elections, returns, and qualifications of its own members," to do the same thing, so far as the right to take a seat in that body is concerned. Doubtless a law of Congress declaring that a person convicted of a particular offense should not hold office under the United States, and the decision of the

courts sustaining such a law, would not preclude the Senate from admitting such a person to a seat, should it think proper, because the Senate is the exclusive judge of the elections, returns, and qualifications of its own members; yet it is hardly conceivable that the Senate ever would admit such a person to be sworn; nor does the fact that Congress has not adopted such a punishment for disloyalty or treason prevent the Senate from refusing to allow to be sworn as a member a person believed by the body to be guilty of those offenses or other infamous crimes.

That one avowed traitor, a convicted felon, or a person known to be disloyal to the Government, has a constitutional right to be admitted into the body, would imply that the Senate had no power of protecting itself—a power which, from the nature of things, must be inherent in every legislative body. Suppose a member sent to the Senate, before being sworn, were to disturb the body and by violence interrupt its proceedings, would the Senate be compelled to allow such a person to be sworn as a member of the body before it could cast him out? Surely not, unless the Senate is unable to protect itself and preserve its own order. The Constitution declares that "each house may determine the rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of two-thirds, expel a member." The connection of the sentence in which the power of expulsion is given would indicate that it was intended to be exercised for some act done as a member, and not for some cause existing before the member was elected or took his seat. For any crime or infamous act done before that time the appropriate remedy would seem to be to refuse to allow him to qualify, which, in the judgment of the undersigned, the Senate may properly do; not by way of adding to the qualifications imposed by the Constitntion, but as a punishment due to his crimes or the infamy of his character. Hence, the undersigned, conceiving that it was the duty of the committee to have expressed its opinion on the evidence of disloyalty before it, and to have reported in favor of or against the swearing in of the Senator, as the evidence should warrant, and not allow him to be first sworn, and leave the question of his loyalty to be subsequently determined on a motion to expel, the undersigned forbears to review the evidence of disloyalty before the committee, or to express any opinion upon it, till the pending question of jurisdiction to consider it is determined. LYMAN TRUMBULL.

TUESDAY, February 18, 1862.

On motion by Mr. Harris, the Senate proceeded to consider the resolution reported by the Committee on the Judiciary, declaring Benjamin Stark, appointed a Senator by the governor of the State of Oregon, entitled to take the constitutional oath of office; and

On motion by Mr. Hale that the report of the Committee on the Judiciary in the case of Benjamin Stark, of Oregon, appointed a Senator of that State by the governor thereof, be recommitted to the committee, and that said committee be instructed to report on the facts proved or admitted, whether, in their judgment, the evidence before them so far impeaches his loyalty as to disqualify him from holding a seat in the Senate of the United States,

After debate,

On motion by Mr. Doolittle, the Senate adjourned.

[The debate is found on pages 861-873 of the Congressional Globe, part 1, 2d sess. 37th Cong.]

THURSDAY, February 20, 1862.

The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary, declaring that Benjamin Stark, appointed a Senator by the governor of the State of Oregon, is entitled to take the constitutional oath of office; and On motion by Mr. Wilkinson,

Ordered, That the further consideration thereof be postponed to to-morrow at 1 o'clock.

MONDAY, February 24, 1862.

The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary, declaring Benjamin Stark, appointed a Senator by the governor of the State of Oregon, entitled to take the constitutional oath of office; and,

After debate and the consideration of executive business, the Senate adjourned. [The debate is found on pages 925-929 of the Congressional Globe, part 1, 2d sess. 37th Cong.]

WEDNESDAY, February 26, 1862.

On motion by Mr. Harris, the Senate resumed the consideration of the resolution re ported by the Committee on the Judiciary, affirming the right of Benjamin Stark, ap

pointed a Senator by the governor of the State of Oregon, to take the constitutional oath of office; and

Mr. Hale having withdrawn the motion made by him to recommit the report to the Committee on the Judiciary, with certain instructions,

On motion by Mr. Sumner to amend the resolution by striking out the words "is entitled to take the constitutional oath of office," and in lieu therof inserting" and now charged with disloyalty by the affidavits of many citizens of Oregon, and also by a letter addressed to the Secretary of State, and signed jointly by many citizens of Oregon, some of whom hold public trusts under the United States, is not entitled to take the constitutional oath of office without a previous investigation into the truth of the charge," After debate,

On motion by Mr. Fessenden that the Senate adjourn, it was determined in the affirmative-yeas 21, nays 20.

[The debate is found on pages 963-975 of the Congressional Globe, part 2, 2d sess. 37th Cong.]

THURSDAY, February 27, 1862.

The Senate resumed the consideration of the resolution reported by the Committee on the Judiciary, affirming the right of Benjamin Stark, appointed a Senator by the governor of the State of Oregon, to take the constitutional oath of office; and

On the question to agree to the amendment proposed by Mr. Sumner to the resolution, viz:

Strike out the words "is entitled to take the constitutional oath of office" and in lieu thereof insert "and now charged with disloyalty by the affidavits of many citizens of Oregon, and also by a letter addressed to the Secretary of State, and signed jointly by many citizens of Oregon, some of whom hold public trusts under the United States, is not entitled to take the constitutional oath of office without a previous investigation into the truth of the charge,"

After debate, it was determined in the negative-yeas 18, nays 26.

On motion by Mr. Sumner, the yeas and nays being desired by one-fifth of the Senators present,

Those who voted in the affirmative are Messrs. Chandler, Clark, Dixon, Doolittle, Grimes, Hale, Harlan, Howard, King, Lane of Indiana, Morrill, Pomeroy, Sumner, Trumbull, Wade, Wilkinson, Wilmot, and Wilson of Massachusetts.

Those who voted in the negative are Messrs. Anthony, Browning, Carlile, Collamer, Cowan, Davis, Fessenden, Foster, Harris, Henderson, Howe, Johnson, Kennedy, Latham, McDougall, Nesmith, Pearce, Powell, Rice, Saulsbury, Sherman, Simmons, Ten Eyck, Thomson, Willey, and Wilson of Missouri.

On motion by Mr. Doolittle to amend the resolution by inserting at the end thereof the words without prejudice to any subsequent proceedings in the case," it was determined in the affirmative.

On the question to agree to the resolution as amended, as follows:

"Resolved, That Benjamin Stark, of Oregon, appointed a Senator of that State by the governor thereof, is entitled to take the constitutional oath of office without prejudice to any subsequent proceedings in the case,'

It was determined in the affirmative yeas 26, nays 19.

On motion by Mr. Sumner, the yeas and nays being desired by one-fifth of the Senators present,

Those who voted in the affirmative are Messrs. Anthony, Browning, Carlile, Collamer, Cowan, Davis, Fessenden, Foster, Harris, Henderson, Howe, Johnson, Kennedy, Latham, McDougall, Nesmith, Pearce, Powell, Rice, Saulsbury, Sherman, Simmons, Ten Eyck, Thomson, Willey, and Wilson of Missouri.

Those who voted in the negative are Messrs. Chandler, Clark, Dixon, Doolittle, Foot, Grimes, Hale, Harlan, Howard, King, Lane of Indiana, Morrill, Pomeroy, Sumner, Trumbull, Wade, Wilkinson, Wilmot, and Wilson of Massachusetts.

So the resolution as amended was agreed to; and

The Vice-President administered to Mr. Stark the oath prescribed by law, and he took his seat in the Senate.

[The debate is found on pages 988-994 of the Congressional Globe, part 2, 2d sess. 37th Cong.]

FRIDAY, February 28, 1862.

Mr. Stark submitted the following resolution for consideration:

"Resolved, That the papers relating to the loyalty of Benjamin Stark, a Senator from Oregon, be withdrawn from the files of the Senate and referred to the Committee on the Judiciary, with instructions to investigate the charges preferred against said Stark on all evidence which has been or may be presented, and with power to send for persons and papers."