The Senate as Protector of Constitutional Liberties
Charles Sumner, 1866
Senate rites honoring long-serving and well-respected members typically produce heartfelt orations aimed at associating the deceased with lofty ideals of senatorial effectiveness. The death of Vermont senator Solomon Foot on March 28, 1866, inspired uncommon bursts of eloquence from many of his bereaved colleagues, including Charles Sumner of Massachusetts. Foot had enjoyed broad respect for his rigorously impartial service as the Senate’s president pro tempore during the tumultuous years of the Civil War. The fellow New Englanders Sumner and Foot had each served in the Senate for 15 years, the longest-serving incumbents of their day.
The Civil War sharply altered the composition of the Senate and forced members to pay close attention to provisions within the Constitution and Senate rules that governed the Chamber’s operationparticularly regarding quorums and loyalty oaths. As Charles Sumner demonstrated in his post-war eulogy to Solomon Foot, Senate rules and the role of the presiding officer in enforcing them had proved essential to the operation of the Senate during this era of profound national crisis.
The quorum issue raised the fundamental question, “What is the Senate?” “Is it a body composed of two members from each state in the Union, or is it a body of just those members who have been properly elected and seated?” During the secession crisis of 1861 and 1862, one-third of the Senate’s members either resigned, were expelled, or were not replaced upon the expiration of their terms. The departure of so many senators threatened to paralyze the Senate by depriving it of the majority quorum necessary to conduct legislative business. Until 1861, the Senate operated on the assumption that a quorum was based on the total number of members entitled to seats: two senators per state.
Soon after the Senate convened in December 1861 for its first regular session of the war years, members began to express concerns about attracting enough senators to maintain a quorum. Refusing to acknowledge the departure of the Confederate states, which removed 20 members from the chamber, the Senate based its quorum calculations on the existence of all 34 states. Of the 68 eligible senators, the Senate needed a simple majority of 35 to conduct its business. Increasingly, mortality, illness, and travel further reduced the 48 available for service to numbers dangerously close to the 35-member minimum, thereby jeopardizing passage of essential legislation.
Ohio senator John Sherman formally raised the issue in April 1862 by proposing a Senate rule that for the first time would specify exactly what constituted a quorum. “The Constitution requires a majority to constitute a quorum, but does not say a majority of what.” President pro tempore Foot followed with an extended constitutional analysis of the issue. Although the Senate failed to address the issue in 1862, intensifying wartime pressures placed it before the Senate in the spring of 1864. On this occasion, the Senate adopted Sherman’s resolution, which provided that “a quorum of the Senate consists of a majority of the Senators duly chosen.”
A second major rules issue of deep concern to Charles Sumner related to the establishment of loyalty oaths for federal officeholders. In 1789 Congress had established a one-sentence oath of office for senators and other federal officials. That oath proved adequate for nearly three-quarters of a century. By 1861, however, the outbreak of the Civil War gave particular urgency to the previously routine act of oath taking. At a time of uncertain and shifting loyalties, President Abraham Lincoln ordered all federal civilian personnel to retake the 1789 oath. By 1862 members of Congress who believed the Union had more to fear from northern traitors than southern soldiers enacted the so-called Ironclad Test Oath. Added to the first oath, this text required civil servants and military officers to swear not only to future loyalty but, in a major departure, also to affirm that they had never previously engaged in disloyal conduct.
Although Congress did not initially extend the 1862 Test Oath to its own members, many took it voluntarily. Angered by senators who refused this symbolic act, Charles Sumner succeeded in getting the Senate to adopt a January 25, 1864, rules change making the Test Oath mandatory for all senators.
With the passing of Senator Foot on March 28, 1866, Sumner lauded Foot’s success as presiding officer, his broad knowledge of parliamentary procedure, and his reverence for the Senate’s rules, which Sumner judged to be “the very temple of constitutional liberty,” at Foot’s funeral service in the Senate Chamber. These observations by the Senate’s newly crowned senior member reiterated fundamental views of Senate operations to which all members were expected to subscribe.
Senator Sumner speaks on the death of Solomon Foot
[As president pro tempore: ] The office of President pro tempore among us grows out of the anomalous relations of the Vice President to the Senate. There is no such officer in the other House, nor was there in the House of Commons until very recently. . . . No ordinary talent can guide and control a legislative assembly, especially if it be numerous or if it be excited by party differences. A good presiding officer is like Alexander mounting Bucephalus. The assembly knows its master “as a horse knows its rider.” This was preeminently the case of Mr. Foot, who was often in the chair, and was for a considerable period our President pro tempore. Here he showed a special adaptation and power. He was in person “every inch” a President; so also was he in every sound of the voice. He carried into the chair the most marked individuality that has been seen there during this generation. He was unlike any other presiding officer. None but himself could be his parallel. His presence was felt instantly. It filled this Chamber from floor to gallery. It attached itself to everything that was done. Vigor and dispatch prevailed. Questions were stated so as to challenge attention. Impartial justice was manifest at once. Business in every form was handled with equal ease. Order was enforced with no timorous authority. If disturbance came from the gallery how promptly he launched his fulmination. If it came from the floor you have often seen him throw himself back, and then with voice of lordship, as if all the Senate was in him, insist that debate should be suspended until order was restored. “The Senate must come to order,” he exclaimed; and meanwhile, like the god Thor, he beat with his ivory hammer in unison with his voice, until the reverberations rattled like thunder in the mountains. . . .
[The Senate rules:] Accustomed as we have become to the rules which govern legislative proceedings, we are hardly aware of their importance in the development of liberal institutions. They were unknown in antiquity, and they were unknown also on the European continent until latterly introduced from England, which was their original home. They are among the precious contributions which England has made to modern civilization. And yet they did not assume at once their present perfect form. Mr. [Henry] Hallam [author of The Constitutional History of England, 1850] tells us that even as late as Queen Elizabeth members called confusedly for the business they wished brought forward. But now, at last, these rules have become a beautiful machine by which business is conducted, legislation is molded, and debate is secured in all possible freedom. From the presentation of a petition or the introduction of a bill all proceeds by fixed processes until without disorder the final result is reached and a new law takes its place in the statute-book. [Robert] Hoe’s printing-press, or [Timothy] Alden’s type-setter is not more perfect in its operations. But the rules are more even than a beautiful machine; they are the very temple of constitutional liberty.1
By 1866, with the war over, Sumner stood foremost among a growing number of senators determined to keep former Confederate leaders out of the United States government. One of an emerging group of “radical” Republicans, Sumner strongly disagreed with the more lenient post-Civil War reconstruction policies of President Andrew Johnson. His 1866 reference to the Senate rules as a “beautiful machine” may have been intended as a warning against tampering with hard-fought rules such as the Test Oath.
During the earlier decades of the 19th century, the Industrial Revolution reached many areas of American life. Throughout this era, politicians and political philosophers commonly described governmental structures in mechanistic terms. These structures either functioned perfectly, or had become antiquated and were in need of an overhaul. In this context, it is not surprising that Sumner likened the Senate rules to a smoothly operating machine.
- Donald, David. Charles Sumner and the Rights of Man. New York: Alfred A. Knopf, 1970.
1. Congressional Globe, 39th Congress, 1st session, April 12, 1866, 1911-1912.