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with him, and there can be no question that they had the means of knowing the conduct, opinions, and declarations of Mr. Stark on these matters.

Mr. Hull testifies, on the 18th November, 1861, that some time after the month of February, 1861, the precise time he does not mention, he heard Mr. Stark say: "The United States forces may fight the South from one end of their government to the other, but it will amount to nothing; they will close up behind them, and they cannot be conquered. The South is fighting in a good cause, for government and order, and they cannot be conquered."

Henry Law, on the 20th November, 1861, says he has heard the said Stark say that he was a secessionist, and all his sympathies were for the South.

John M. Breck, on the 21st of November, 1861, deposes that he and Mr. Stark live in the same place, and that he is personally acquainted with him; that just after the news of the reverses of the national armies at Bull Run, the affiant being at the time standing at the entrance of the Bank Exchange in the city of Portland, did then and there distinctly hear and see the said Benjamin Stark drink a toast in company with a wellknown secessionist, to the following effect, viz: "Beauregard," or "Beau-Regard;" that he cannot certainly say that the said Stark alluded to the notorious rebel of that name, but such was his understanding, never having previously heard said Stark use the latter phrase.

It is due to the Senator from Oregon to state that on referring to this testimony before the committee he declared that it was not true. He did not, however, say that the witness was not a truthful man, and worthy of belief under oath, but that he was mistaken, or misunderstood what was said. That he might have drank the toast with some one, and have said, "My regards to you, sir," and that expression been taken for what the witness testifies. But the committee deem it proper to remark, in justice to the witness and to truth, that the witness says "he did then and there distinctly hear and see the said Stark, in company with a well-known secessionist, drink the toast," &c. And here is presented a touchstone for ascertaining the truth of the witness's statement. The witness says he drank this toast with a well-known secessionist-and with such a person, the committee submit, he would be likely to drink it if he drank it at all-and this person would know whether or not Mr. Breck is correct in his statement. Mr. Stark had it in his power, and at his option, without expense to him, to have summoned Breck before the committee, and inquired of him who the person was with whom he, Mr. Stark, drank the toast. He then could have summoned that person before the committee and ascertained the truth or falsity of Mr. Breck's statement. Yet this he entirely failed or neglected to do, not because he was unaware of the importance of the testimony, for his attention was attracted to it, and he had taken pains himself to deny it. This testimony, therefore, is entitled to credibility, for the Senator had the means placed at his power of overthrowing it if incorrect, and failed to do so. If, then, this statement of Mr. Breck's be true, how completely and to what extent does it show the sympathies of the Senator were with the rebels! How full of disloyalty must have been the heart of the Senator to the Union cause, thus, in company with a well-known secessionist, exultantly to drink a toast to the man who had planted the batteries against and breached the fortifications of his own Government-and such a Government! and who led a host which slaughtered his fellow-citizens, mutilated their dead bodies, and struck with traitorous swords at the heart of the country?

Thirty-one other witnesses, whose names the committee have, say that Mr. Stark is well known and reputed to be an open and avowed friend of the Southern Confederacy as against the Union.

*

*

Peter Smith, on the 21st of November, 1861, deposes that Mr. Stark maintained before him that any State had a right to secede from the rest of the Union, and there was no constitutional right to coerce them into submission.

On the 29th of January, 1862, Joseph Lane appeared before the Judiciary Committee of the Senate and testified that in a conversation with Bishop Scott he heard Mr. Stark say that his sympathies were with the South, and that they were right. He does not undertake to give the precise words of the conversation, which occurred in June, 1861. This witness Mr. Stark had the opportunity of cross-examining, and here again he had the opportunity, if Mr. Lane had been mistaken, to have corrected him. He might have called Bishop Scott before the committee and inquired if he had any such conversation with Mr. Stark or heard him make any such declarations, but he neglected entirely the opportunity of ascertaining the truth or of contradicting the testimony against him.

The committee, however, did not rely entirely upon the testimony of witnesses for this finding. Mr. Stark in the presence of the committee, at one of their meetings, distinctly admitted and said that now he would be willing that the loyal States should be absorbed under the confederated constitution for the sake of peace.

The committee were equally pained and surprised at such an expression, but could not fail to perceive how pungent a force it gave to much of the testimony against him; nor could they fail to come to the conclusion, however disagreeable.

Thirdly. That the Senator from Oregon is disloyal to the Government of the United States.

If the first two findings of the committee be correct and the testimony of the witnesses be received and credited, this third finding results almost as a matter of necessity. The Southern Confederacy is the work of rebellion; those who formed it are in arms against the Government of the United States. Its constitution is the product of treason. It is antagonistic, inconsistent, and hostile to the Government of the Union. If rebellion be successful and the Southern Confederacy be established, the Government of the United States must be overthrown and destroyed in nearly one-half its legitimate jurisdiction. Those, therefore, who advocate and support the course of the Southern Confederacy must be deemed opposed to the Government of the United States and disloyal thereto. The truly loyal citizen cannot desire and will not permit a rebellion in any of the States to succeed. Success to the one is the disruption, overthrow, and defeat of the other; especially when the two sections are in arms will the true citizen give all his sympathies, his efforts, and his prayers to the maintenance of a Government which has diffused its blessings so bounteously and so widely as our own. There may be some excuse or palliation for those who, living in rebellious States, are swept away or absorbed by the terrible events there occurring; but there certainly can be none for one who, like the Senator from Oregon, remote from the scene of strife, voluntarily, among a people disposed to be loyal, thus sympathizes with and advocates the cause of rebellion.

By disloyalty the committee mean the want of fidelity to his allegiance to the country, and a disregard of the duty he owes her in this her hour of need and peril.

Now, if it be loyal to advocate the cause of the seceded States, then the Senator from Oregon may be loyal. If it be loyal to sympathize with the rebels, to declare that they are right, and cannot be coerced; to desire for them peace, that they may perfect and carry out their schemes, then may the Senator from Oregon be loyal. If it be loyal not only to express an admiration for the constitution which the rebels have adopted to combine their strength, and make it effectual for the permanent disruption of the American Union and the permanent establishment of their own confederacy, but also to desire the absorption of the other States under it, thus, so to speak, nationalizing treason and making the Government succumb to treason, rather than treason to the Government, then may the Senator from Oregon be loyal. If it be loyal, when the President called for volunteers to save the capital from seizure and suppress rebellion, discouragingly to assert that the United States could not support an army of thirty thousand men, nor would the people sustain the Administration in trying to put down the rebellion; if it be loyal, when the fortifications of the country are battered down by the cannon of domestic foes, and our soldiers are defeated, put to rout and slain, and their dead bodies mutilated and buried, "to drink the health" of the traitor who led the host that perpetrated these enormities, then may the Senator from Oregon be loyal. But if, as the committee think, such conduct and declarations, at the time when the Government was accepting war as a dire necessity, and struggling for its very existence, could only proceed from a heart sadly and wickedly inclined to sympathize with treason, and show itself false to every duty and deaf to every call of patriotism, then is the finding of the committee fully warranted by the evidence.

"No man can serve two masters. Sympathy with rebellion must shut out patriotism from the heart. It can only exist where the other is not. No man can be true to his country who would do or say aught to aid a conspiracy so wicked, so malignant, so remorseless, and so traitorous as the present rebellion.

The Senator from Oregon cannot be ignorant of the aim and design of the seceding States. They confederated together to break up the Federal Government. They openly proclaimed their determination; and if the Senator aided them by word or deed, he did it with a full knowledge that it was a blow at his country's existence.

The committee do not forget that it is asserted by the Senator that many of the papers referred to the committee are from his bitterest political enemies; and did the findings of the committee rest upon such papers alone, much consideration should be given this statement.

But, turning from these papers of his political enemies to the Senator's own letter to the Democratic mass convention held in Linn County, Oregon, June 5, 1861, the committee find sad evidence of the same spirit animating the contents and dictating the expressions. "Civil war cannot avert disunion;" "Subjugation cannot prolong the Union;""To subjugate the South, were that even possible, would be the establishment. of a military despotism," are expressions found in this letter, and so marvelously like many of those attributed by the witnesses to the Senator that there is no difficulty in believing that they all belong to the same family and have a common parent. And they all are calculated to encourage the rebellion, and discourage the efforts to suppress it. Whoever may read this letter, mutilated as it is, keeping in mind that it was written about

the time he is said to have uttered the expressions attributed to him by the witnesses, will the more readily believe that the statement of the witnesses closely accords with the evidence furnished by the Senator himself.

Indeed, this letter of June, 1861, and the statement of the Senator to the committee have added much to the weight of the other proof. The first tallies in sentiment and spirit with the witnesses; the other, though made when the Senator was under an accusation of disloyalty in papers referred to the committee upon his own motion, and though the committee by inviting that statement intended to give the Senator an opportunity to express his sympathy with his suffering country and menaced Government, and to remove so far as he could in that way any impeachment of his loyalty, is as barren of all such expressions as a bill of indictment. There is not in it a paragraph, nor a sentence, nor a line such as must spontaneously have burst out from a loyal heart under such an accusation. True, he speaks of being entitled to the presumptions of loyalty, but there is no manly declaration of any determination to stand by the country in weal or woe or to give life or fortune or any assistance whatever to her requirements. In Oregon he was frequent and open in his expressions of sympathy for the rebels. He was, say the witnesses, the advocate of their cause. But here he is as silent as the grave. Though accused of disloyalty, though the country "bleeds at every pore," though she imploringly raises her hands to him in his high place for aid and succor-he has never a word in his statement, nor an expression, sentence, or line from which a drop of sympathy can be wrung, unless it be in his assertion that "in every respect their declarations are unjust to my real sentiments and at variance with the whole tenor of my life."

What those sentiments are he does not tell us, nor have the committtee any means of knowing by any evidence before them. If he had declared them to the committee, asserting his loyalty to the Government, the committee would have given him the full benefit of them; and perhaps they might have gone far to have removed the unfavorable conclusions to which the committee have come. But in the absence of any such declarations the committee could only pass on the evidence that was before them, giving him the full benefit of every presumption that can arise in his favor, and of every deduction that should be made for a conflict of testimony.

"He that is not for us is against us" are the words of inspiration, and never more applicable than on occasions like the present. It is quite true the Senator was under no obligation to use any such expressions in his statement, but the committee cannot but believe that had the feelings existed which would have prompted them they could not have been confined in a patriotic heart-they would have found expression.

Upon taking his seat in the Senate, the Senator took the oath to support the Constitution of the United States; and it may be objected he would not have done so if not loyal to the Government. What were the reservations, what the limitations or interpretations, with which the Senator took that oath the committee do not inquire; for the Senator does not assert that his feelings and views have changed since the witnesses testified. He does not pretend that he is more loyal now than when he declared his sympathies were with the South, that they were right and could not be coerced. And the committee remember and know that in their presence, since the taking of that oath, and since the institution of this inquiry, the Senator boldly and without condition declared he would be willing the loyal States should be absorbed under the constitution of the Confederacy for the sake of peace-that is, that the Constitution of our fathers, which he had just sworn to support, should be cast out of its rightful inheritance by this bastard sprout of a gigantic rebellion, which should "reign in its stead."

Could the traitors desire more, to wit, peace and the adoption of their government? It is the aim of their efforts; their avowed intent and purpose. No man can yield it, unless compelled by dire necessity, and not be liable to an impeachment of his loyalty. All true lovers of the country desire peace, but he who would seek it through its destruction and overthrow must be either a craven or disloyal citizen.

The committee are, therefore, compelled to dismiss this consideration, and adopt the foregoing findings; adding that the appearance of the Senator before the committee, his singular declarations, statements, and conduct, have done much to strengthen the last conclusion of the committee.

Itwould have been far pleasanter to them not to have done so, and they hoped, upon entering upon this investigation, the Senator would have made such proofs and statements as would have removed from him all suspicion of disloyalty. But he has failed to do so, and the duty was left to the committee to judge only upon what was before them. From that duty there could be no shrinking in a time like this; and the committee have endeavored to discharge it thoroughly and fearlessly, and now submit their conclusions to the Senate.

DAN'L CLARK.

J. M. HOWARD.
JOSEPH A. WRIGHT.
JOHN SHERMAN.

Concurring in the first two conclusions of the majority of the committee, I am yet constrained, not without hesitation, to differ with them in their third and last conclusion. Distrusting all ex parte testimony, especially in regard to expressions uttered in the heat of high political excitement, seeing that the sentiments and opinions thus attributed to Mr. Stark are virtually denied and repudiated by him in his written statement before the committee; remembering that since it is alleged those conversations took place, and those expressions were uttered, Mr. Stark, in taking his seat as a Senator, has purged himself of these sinister allegations by taking the oath to support the Constitution of the United States, and especially fearing the danger of making mere difference of opinion, however wide and fundamental, a test of fidelity to the Government, I am not prepared to say that Mr. Stark is now disloyal.

W. J. WILLEY.

WEDNESDAY, May 7, 1862.

Mr. Sumner submitted the following resolution for consideration: "Resolved, That Benjamin Stark, a Senator from Oregon, who has been found by a committee of this body to be disloyal to the Government of the United States, be, and the same is hereby, expelled from the Senate.

[The debate is found on page 1983 of the Congressional Globe, part 3, 2d sess. 37th Cong.]

FRIDAY, June 6, 1862.

On motion by Mr. Sumner that the Senate proceed to the consideration of the resolution submitted by him for the expulsion of the Hon. Benjamin Stark from the Senate, it was determined in the negative-yeas 16, nays 21.

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. Chandler, Clark, Foot, Grimes, Harlan, Howe, Lane of Kansas, Morrill, Pomeroy, Sumner, Trumbull, Wade, Wilkinson, Wilmot, Wilson of Massachusetts, and Wright.

Those who voted in the negative are Messrs. Anthony, Bayard, Browning, Carlile, Cowan, Davis, Dixon, Fessenden, Foster, Hale, Harris, Kennedy, Latham, McDougall. Nesmith, Powell, Rice, Saulsbury, Simmons, Ten Eyck, and Willey.

[Thirty-eighth Congress and first session Thirty-ninth Congress.]

WILLIAM M. FISHBACK, ELISHA BAXTER, AND WILLIAM D. SNOW,

of Arkansas.

May 21, 1864, the credentials of Mr. Fishback, elected to fill the unexpired term, ending March 3, 1865, of William K. Sebastian, expelled, were presented; and May 31 the credentials of Mr. Baxter, elected to fill the unexpired term, ending March 3, 1867, of Charles B. Mitchell, expelled, were presented. June 13, the oath of office not having been administered, their credentials were referred to the Committee on the Judiciary. At the same time a joint resolution for the recognition of the free State government of the State of Arkansas, which had been presented to the Senate June 10, was referred to the committee. June 27, the committee reported in regard to the election of the Senators substantially as follows: August 16, 1861, the President had declared the inhabitants of Arkansas, except those of such parts thereof as should maintain a loyal adhesion to the Union, or might be from time to time occupied and controlled by United States forces, to be in a state of insurrection. At the date of the proclamation no part of the State was occupied and controlled by forces of the United States, nor did the inhabitants of any part of the State publicly maintain a loyal adhesion to the Union. Hence at that time a state of civil war existed between the inhabitants of Arkansas and the United States, and there was not then any organized authority competent to elect Senators of the United States. It is claimed, however, that since that period the greater portion of the State has been thus occupied, and that the inhabitants, loyal to the Union, have reorganized their State government, and have a right through their legislature to choose Senators. The question to be determined by the Senate is, Was the body electing Messrs. Fishback and Baxter the legislature of Arkansas? Less than one-fourth of the number of persons who voted for President in 1860 took part in the reorganization of the State government. This, however, would not be fatal to the reorganization if the State was free from military control, which is not the case. At the time the claimants were elected, and at this time, the State is occupied by hostile armies. While this state of things continues, and the right to exercise armed authority is claimed and exerted by the military power, it cannot be said that a civil government, set up and continued only by the sufferance of the military, is that republican form of government which the Constitution requires the United States to guarantee to every State in the Union. When the rebellion shall have been so far suppressed in the State that the loyal inhabitants thereof shall maintain a State government by the aid of and not in subordination to the military, they shall then and not before be entitled to representation in Congress. The committee recommend the adoption of the following resolution: "Resolved, That William M. Fishback and Elisha Baxter are not entitled to seats as Senators from the State of Arkansas." This resolution passed the Senate June 29, 1864, by a vote of 27 yeas to 6 nays.

The joint resolution above referred to was reported adversely at the same time that the report on the credentials was presented. In the next session of Congress a similar joint resolution was submitted and referred to the same committee, but was not reported. The proceedings of the Senate relating to these joint resolutions are not included in the extracts given below.

March 7, 1865, the credentials of Mr. Snow, elected for the term succeeding that for which Mr. Fishback had been elected, were presented and referred to the Committee on the Judiciary. The committee recommended that the question be postponed to the next session, and until Congress should take action in regard to the recognition of the alleged existing State government in Arkansas. No action was taken. February 26, 1866, the credentials of Messrs. Baxter and Snow having been taken from the files of the Senate, a motion was made that they be referred again to the committee. It was ordered that they lie on the table. No further action was taken on the credentials.

The history of the case here given consists of a transcript of the proceedings of the Senate relating to it from Senate Journals, 38th Cong, and 1st sess. 39th Cong.; the report of the committee on on the credentials of Messrs. Fishback and Baxter from Senate Reports, 1st sess. 38th Cong. (No. 34); the report on the credentials of Mr. Snow from Senate Reports, 2d sess. 38th Cong. (No. 1, special session); also the proceedings of the Senate from the Journals relating to the payment of mileage to the claimants. Special references to the debates of each day are inserted below.

[First session of the Thirty-eighth Congress.]

CREDENTIALS OF MESSRS. FISHBACK AND BAXTER.

SATURDAY, May 21, 1864.

Mr. Lane, of Kansas, presented the credentials of the Hon. William M. Fishback, elected a Senator of the United States by the legislature of the State of Arkansas to fill the unexpired term of the Hon. William K. Sebastian, who was expelled by a resolution of the Senate of July 11, 1861; which were read.

On motion by Mr. Conness that the credentials be referred to the Committee on the Judiciary,

Ordered, That the further consideration thereof be postponed to to-morrow.

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