State it appears that there is official evidence of the assent of the Legislatures of Connecticut, New Hampshire, Tennessee, New Jersey, Oregon, Vermont, New York, Illinois, West Virginia, Kansas, Nevada, Missouri, Indiana, Minnesota, Rhode Island, Wisconsin, Pennsylvania, Michigan, Massachusetts, and Nebraska, — being twenty in all, without Ohio. To these now we may add Iowa, which has given its assent very recently, and also Maine, which has notoriously given its assent, although I understand it has not been officially communicated to the Department of State,— making, therefore, twenty-two States, even without Ohio. Twentytwo States are more than three fourths of the Loyal States, or, in other words, of those States that at this moment have Legislatures. The full requirement of the Constitution is therefore met.

This Amendment was originally proposed by a vote of two thirds of Congress, composed of the representatives of the Loyal States. It has now been ratified by the Legislatures of three fourths of the Loyal States, being the same States which originally proposed it through their representatives in Congress. The States that are competent to propose a Constitutional Amendment are competent to adopt it. Both things have been done. The required majority in Congress have proposed it; the required majority of States have adopted it. Therefore, I say, this resolution of the Legislature of Ohio is brutum fulmen, — impotent as words without force. It can have no practical effect, except to disclose the character of its authors. As such it may be dismissed to the limbo of things lost on earth.

Mr. Johnson, of Maryland, followed with some remarks, to which Mr. Sumner replied:

MR. PRESIDENT, — I wish to remind the Senator from Maryland of the exact words of the Constitution, which were not, it seems to me, in his mind when he spoke. An Amendment, when proposed, "shall be valid to all intents and purposes as part of this Constitution, when ratified by the Legislatures of three fourths of the several States." It does not say, "when ratified by three fourths of the several States," but "by the Legislatures' of three fourths of the several States." Now, if there are States without Legislatures, they can have no voice in the ratification. Apply this practically. Three fourths of the actual Legislatures of this Union have ratified the proposed Amendment, and I insist, on the text of the Constitution, and also on the reason of the case, that such ratification is complete. But I am unwilling that this argument should stand merely on my words. I introduce here the authority of the best living text-writer on the jurisprudence of our country, who has treated this very point in a manner which leaves no opportunity for reply. I refer to the book of Mr. Bishop on the Criminal Law, who, in one of his notes,1 considers whether the Amendment of the Constitution abolishing Slavery had been at the time he wrote adopted in a constitutional manner. Of course the very question which we are now discussing with reference to the Fourteenth Amendment arises also on the Amendment prohibiting Slavery. They are both in the same. predicament. If the Fourteenth Amendment is not now a part of the Constitution of the United States, then the Amendment prohibiting Slavery is not a part of the Constitution of the United States. They both stand on the same bottom; they were both proposed by Congress

1 Note to § 776, Vol. I. pp. 433, 434, 3d edit.

in the same way, that is, by a vote of two thirds of the representatives of the Loyal States; and they have both been ratified by the votes of three fourths of the States having Legislatures. I send to the Chair the work of Mr. Bishop, and I ask the Secretary to be good enough to read what I have marked.

The Secretary read the note above cited.

LOYALTY IN THE SENATE: ADMISSION OF A

SENATOR.

REMARKS IN THE SENATE, ON THE RESOLUTION TO ADMIT PHILIP F. THOMAS AS SENATOR FROM MARYLAND, FEBRUARY 13, 1868.

February 13th, the question of the admission of Hon. Philip F. Thomas, Senator-elect from Maryland, charged with disloyalty, coming up for consideration, on a resolution of Hon. Reverdy Johnson, of that State, that said Thomas "be admitted to his seat on his taking the oaths prescribed by the Constitution and laws of the United States," Mr. Sumner moved the following substitute :

"That Philip F. Thomas, Senator-elect from Maryland, cannot be admitted to take the oaths of office required by the Constitution and laws, inasmuch as he allowed his minor son to leave the paternal house to serve as a Rebel soldier, and gave him at the time one hundred dollars in money, all of which was 'aid,' 'countenance,' or 'encouragement' to the Rebellion, which he was forbidden to give; and further, inasmuch as in forbearing to disclose and make known the treason of his son to the President, or other proper authorities, according, to the requirement of the statute in such cases, he was guilty of misprision of treason as defined by existing law."

'Mr. Sumner said :

A

GREAT debate on the question how loyalty shall be secured in the Rebel States is for the time silenced in order to consider how loyalty shall be secured in this Chamber. Everywhere in the Rebel States disloyal persons are struggling for power; and

now at the door of the Senate we witness a similar struggle. If disloyalty cannot be shut out of this Chamber, how can we hope to overcome it elsewhere?

Q

More than once at other times I have discussed the question of loyalty in the Senate. But this was anterior to the adoption of the Fourteenth Constitutional Amendment. The case is plainer now than then, inasmuch as there is now an explicit text requiring loyalty as a "qualification." Formerly we were left to something in the nature of inference; now the requirement is plain as language can make it.

....

By the new Amendment it is provided that "no person shall be a Senator or Representative in Congress, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, .... to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."

These words are precisely applicable to the present case. They lay down a rule from which there is no appeal; and this rule is not merely in the statutes, but in the Constitution. It is the plain declaration that loyalty is a requirement in a Senator and Representative. If we do not apply it to ourselves now, it is difficult to see with what consistency we can apply it to others. Your course here will affect the meaning of this Constitutional Amendment, if not its validity for the future.

I do not stop to argue the question if that Amendment is now a part of the Constitution; for I would not unnecessarily occupy your time, nor direct attention from the case which you are to decide. For the present I content myself with two remarks: first, the Amendment has already been adopted by three fourths of the States that took part in proposing it, and this is