When the newly elected senators of the 38th Congress appeared to take the oath of office in March 1863, an interesting debate arose in the chamber. In 1862, in the midst of the Civil War, Congress enacted the so-called “Ironclad Test Oath,” requiring civil servants and military officers to swear not only to future loyalty but also to affirm that they had never previously engaged in disloyal conduct. Swearing in new senators for the first time since the passage of this law, Massachusetts senator Charles Sumner offered a resolution to require senators to take the new Test Oath. Senators who had objected to the law at the time of its passage now objected to Sumner’s resolution. “Congress has no power to impose a test oath upon the members of Congress,” argued Kentucky senator Garrett Davis, claiming that the law was unconstitutional. “It never was intended by the framers of the Constitution to allow the subject of disqualification or qualification of members of Congress to be interfered with by legislation,” he insisted. Sumner argued that the Senate “ought to set an example of obedience” to the laws. “How can you expect obedience to the laws of the land if here in the Senate you set an example of disobedience?” he inquired. In March 1863 the Senate settled on making the test oath voluntary for senators. Sumner persisted in his efforts, however, and in 1864 succeeded in making the Test Oath mandatory for all senators, leading Delaware senator James Bayard to resign in protest.
