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was** S. CAROLINA TEST OATH. From the Columbia (<S. C.) Times and Gazette. OPINION OF JUDGE O'NEALE. The State, ex relatione, vs. Col. B. F. Hunt. The State, ex relatione, vs. Thomas Mc.Meekin. In these cases, we liavo been called on to discharge tho high trust committed to us by the Stale, of deci ding upon the constitutionality of the acts of the Le gislature. This is at all times a duty to bo dischar- ged cautiously and tenderly; but at the same time independently and fearlessly. At a time like the present, when tho waves of popular fury and party strife are continually breaking upon the very walls of the Temple of Justice, it is a duty not to bo sought; but at tho same time, when it comes unbidden, it is not to Iks shunned. I think it was the remark of Lord Mansfield, that a popularity which had to be followed, was net worth the pursuit; and that it was only worth having when - it followed us. This is true, and we know from experience, that a popular ity which is based ou caprice, and not merit, is like the butterfly of one of our brightest summer days; it may have all tho glories of light and life for a time, but jta time it is but a day and is gone forever, never to be re. ruined. On the other .hand, a popularity which results from a fearless discharge of duly in a time of peril, is like the sun; it may he veiled and obscured for a time, l>y clouds; but it will at last dispel them, and shine the more brightly from its past obscuration.The.so remarks, I may be told, are tho mere flourish of the rhetorician, and not suited to tho sober dignity of the B-nch, where words should bo w'ighcd in tho balances, shall not disputo about the merit, or propriety, of these prefatory remarks : if they are so expressed as to be understood, they will have answered my pur. pose ; for I trust, that without any impropriety, ] may be allowed to refer to them, as the true expo nents of an honest heart and firm purpose : if error (should be its accompaniment in the du-chargo of this present duty, it will arise from a defect of judg ment and understanding, and not from any want of patriotic devotion to that State, which give birth to, and to that people, who have showered furors,’ hon. ore, and benefits vpOn me. Having said this much as introductory to that lo. gal judgment, which I have formed, I t Lull proceed to stale the reasons which have led me to conclude, that the oath contained in, and prescribed by tho oct of tho 19th Doc. 1833, entitled “ An act to provide for tho Military organization of this State,” is uncon stitutional. It is first necessary to understand,what is allegiance in these United States, and to whom is it duo. 1 ad. mit, that in the feudal system, it arose out of the tenure by which land was holdcn from tho Lord par amount. It was the duty of tho vassal or liege, to render all tho services which might bo incident to tho estate: they were all summed up in fidelity to tho person of the sovereign or King. This was the bond which never could be broken, because it took its ori gin in the connexion which originally existed be tween tho serf and the soil of his birth. It was hence, that allegiance was held to be perpetual: it was the invisible cord, which held the subject to the King, and drew him from every portion of the habi- table globe to tho foot of his master. Is this the sense in which Republicans of the present day de sire allegiance to be understood 7 Do we owe a per. petnal allegiance to South Carolina because wo hap. pen to bo born within her limits ? If wo leave her and seek quiet and repose in the wilderness of tho New World, do we still owe fidelity to her ; and has she the right to drag us from the caves and forests of the far West, even beyond the Rocky Mountains, and compel us to strike in her quarrel, because she bids tts ? If this he the tense in which it is now to be understood, it is very different from the sense, in which it was understood by the care worn pilgrims of Liberty, who brought their offer:mgs to the Tem ple of tho Constitutions of tho United States and this State. Became tho word Allegiance, originated out of feudal tenures, is no reason, why we should give it tho precise feudal meaning. Many a noble river may bo traced back to some marsh, from which the water scarcely creeps : so many a r.oble institution of liberty, may be traced through successive ages to soma rude notion of individual freedom and protec. tion, bearing perhaps no resemblance to that now in use. This is tho case with allegiance, as it will, I trust, be seen in the progress of my eftmts, liumblo as they may be, to shed light on this perplexed: quco. tion. The history of England shews that the word is not even understood in her unchanging government of Kings, Lords and Commons, in the sense in which it originally was. In the days of the conqueror and his descendants and successors, to the time of Charles 1st, it was the tic of fidelity and obedience to the person of the King. May I be permitted here VO Buy, it was the fidelity and obedience forced upon theftaxon subjects of the conqueror at the point of tho sword, aud rivetlcd upon them as manacles and ohaihs, by the Norman King and his Barons. One of its fruits {hen was to bid and compel the free spirit cf the Saxon, to meditate in darkness at the oound of the curfew. Do we claim our notions of allegiance, in this free country, as arising from this age of slavery 7 I would as soon say, that dark ness was the parent of light, because the latter emer ges from tho former. In tho Revolution, which sent Charier, to the scaf fold, and bis sons and cavaliers into exile; and gave power to the often ridiculed and contemned Roundheads, to whom was allegiance due? The Protector Cromwell and his generals, would have laughed to scorn the idea, that it followed their ex- iled Prince into foreign lands; and that it was per petual and indissoluble. They would have pointed to their bloody swords, and said, with these we cut tho Gordian knot, which wc could not untie. They would have said truly, their allegiance was then due to tho Parliament, as the Representative of tho pco. pie, in whom “all power is vested,” and “from whom it is consequently derived.” The reeond Revolution, which drove forever tho tyrant race of tho Stuarts from the Throne of Eng- land, placed allegiance there, upon the footing that it was due to tho King, not as the Guelph, but as tho King of tho English people. It is obedience to him, as the organ, through which their laws emanate, and by which they are also to be executed. It is true from his fancied divine right, (I suppose) as well as his civil rights, as hereditary Gov ernor of the English People, this allegiance is said to be jicrpctual: and that it can only bo dissolved by las consent. In other words, once a subject, always a sunject, is the notion which declares allegiance to be perpetual. Our forefathers when they crossed the Atlantic, nnd sought in the wilderness among its savages and beasts of prey, that personal security and freedom °f opinion, which they could not find at home, were still followed by this phantom of allegiance. In the rugged wilds and mountain fastnesses of America, tho sturdy Republican wanderer, clothed in the skins won by hia bow and spear, drinking from the bub- ling brook, and eating the bread produced by the sweat of his brow, was told, that he owed allegiance to tho Kihg of England, because he was born his sub. ject. To him there seemed to lie no reason in such a requisition; and althongh for more than a century, this was not a disputed point, and obedience was yielded by tho Colonios to the English King; yet,'it wan the result of the weak and helpless state of Colo- nial infancy: it never was recognised to the full •». tent claimed, by the young and growing States who in 1776, dared to be free. In our Revolution and Declaration of Indepen dence, this notion of perpetual allegiance was repu diated and rejected. It was then said, “we hold theso truths to be self evident: that all mdn are created equal; that they are endowed by their Creator, with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments ore instituted among men, deriving their just powen, from the consent of tho gova*»ed; that whenever any form of government becomes,destructive of theso ends, it it tkf right of the people, to alter or abolish it, end to institute a new government, laying its foundations on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safeiy and happiness.” From this time ac«l from this in. strumont, I think, that allegiance, in its feudal sense, or in that in which it is understood in the English limited monarchy, became wholly inappropriate to our complex form of Government. I shall have oc casion hereafter to develope this idea more fully. We all concede in this country, that all power is originally in the people, that is, they alone, can right- fully authorize persona as their Governors,to exercise the right to rule over them as a people, and to restrict their liberty of action, which each man, in a state cf nature may exercise. But does it follow that allegi ance is due to the people ? It is due to their gov ernment, whatever that may be. If they are the government, by assembling as in a pure democracy and passing all laws, it is due to them, in that assem bled character. It is due to their power, when in ox- crciso and challenging obedience; but nothing is due to an ultimate right in reversion, which may. or may not lie exercised. As well might it be said, that allegianco is duo to a King by possibility, be cause it is “ the right of the people to alter and aliolisli the present government,” and in its place, to crown a monarch, as it is to claim allegiance to the abstract right of revolution. 1 think one of the coun. scl said truly, when he asserted, that allegiance in this country, os well as in Europe, waa due to the government. It is then emphatically (if there is any such term, in proper Use in this country.) allegiance to the people: for the government is the administra tion of the people, it is their will in the form of par amount law, and it is to that, our Allegianco is due.— Can there be any thing else to which tho fidelity of the citizens of this State is duo 7 Treason at com mon law, is said to be the violation of allegiance Can there be any treason in mere matters of opinion 7 If one should deny the ultimate right of revolution in the people of this State, would it ho treason against tho State 7 Clearly not! But if the people should carry the right into execution, and set up a new form of government, a citizen warring against it would bo guilty of Treason. What is the reason, I may be asked, of this distinction 7 It is because in the first case, there is no sovereign command, saying to the citizen, do this duty; there can be therefore no disobedience. In the other, the duty is demanded and is commanded to bo discharged, and obedience must follow from every one, who lives under thd government thus set up. But it is said that Allegiance is the duty, which the citizen, or subject, owes to the Sovereign. Let this definition be admitted, and teiorc we can see what will be its effect, wc must understand, who is the Sovereign to whom Allegiance is duel I nm told that it is the People. I admit it. But it is not to the People in a state of nature, it is lo the People in their form of government. It is then, that their high behest cannot bo questioned. Wo thus come back and find that Allegiance is due to the govern, ment o' the People as their Representatives, or as the People themselves. It is in this character and te. spcct, standing for the people and in their place, the sovereign. But let us test the proposition, in ano ther, point of view. Break up the government; to whom do we then owe Allegiance 7 To the People is the answer ! Ilow are you to fulfil its duties 7— lias one man, more than another, the right to your services 7 No ! Can any number short of a majority have the right to control you 7 No ! It is only then, when assembled and having given utterance to their will, in the establishment of a government, that Allegiance to the people commences. It is the duty of the citizen to obey, because the people in their government command obedience. If at tho organ, ization of the government, one who had objected to its formation, should peaceably withdraw from it and go beyond its territorial limits, would he incur any crime, or owe it any duty ? Surely not. He has exercised hia natural rights as a freeman ; rights, which the clear beads and honest hearts of the sign, ers of the Declaration of Independence recognized, and gave to their posterity, as self evidently true In any and ovciy point of view, in which,- I am able to consider tho subject, Allegiance in this country is due to the government of the people. I have hereto fore, and I shall use throughout this opinion, the term Allegiance, because it is tho one most com monly used to denote the duty of the citizen to the government. But, I apprehend it is wholly misapplied in the land of Washington and Franklin or, to be exclusively Carolinian, in the land of tho Rutledges, the Pinckneys, the Middletons, the Hugers, the Heywards, the Draytons, and the Lau rcnscs. Allegiance is properly tho duty, which the subject owes to the King, and whether personal, or derivative, is an unfit garb, to clothe the Republican It is like putting on the statue of Washington, the -robe of tho Csesara. Every one knows, that it has no connection with, or, fitness for Republican sim. plicity. Our duty is obedience to the government of the people : and if there is any other tie existing in this countiv. I have been unable to discover it: and, if I believed there was any other, it would carry with it, unimaginable terrors, for tho reason, that we cannot know our duty, or, who has the right to command it. What is to be understood by the government of the people 7 I answer, tho constitutions of the State find of the Unitod States. They were the Govern, ment of the people of tho State of South Carolina, operating alike in their respective spheres silently, but with irresistible authority. To these instru ments, as the expressed will of the people in the shape of paramount law, every citizen and officer is bound to yield obedience. Every act of Congrera, which conflicts with the Constitution of tho United States, is by it annulled, and made void : every act of the State legislature, which conflicts with either the Constitution of tho United States, or the State is also void. Why ? Because they have been enact ed without the authority of the people, and are there fore usurpations of powor, not law. As long as the government remains, these Constitutions are the au. thority, by which rule is exercised by each branch and they constitute the limits, beyond which neither is to go. To them therefore, os the sovereign pow. cr of the people in exercise, and constituting their government, our allegiance, or obedience is duo. Sovereignty and Allegianco, we are told is indivis. iblo. Admit the proposition, and what follows ? Sim ply that the two Constitutions arc the sovereign, and that our Allegiance is duo to them. They must to. gather be sovereign, for together they constitute the ontire will of the people, by which the government is to be administered in tho State, and in the United States. Each is sovereign in its particular depart, ment of rule, for each can overrule every thing, which is contrary to its particular provisions. Ml must obey theip, and hence I apprehend, it is, that our notion of Allegiance roust be formed in this country. That every duty which we owe as citi zens, is due to one or the other of these branches of this government, considered as one government, is undeniable. For the term citizen implies a govern ment existing, to which a duty is owing, os much as theterm subject, implies a King to whom subjec tion is yielded. So far as general reasoning can go, I am lienee satisfied, that nur Allegiance, or obedi ence is due, and owing to the Constitution of the U. Slates and of the State, and of course to the two governments created by them, and constituting in a legal point of view, one government in each State, they (the government of the United States . t, \ e s tate> keep within their respective con stitutional limits. Whether this be divided, or single Allegianco, it is exactly our condition in point offset, and i is m vain, therefore, to assert an abstraction, against positivo, certain, existing, and real duties, which we daily practice and porform. 1 will now I trust; be able to show, from the legislation of 8outh Carolina, that this is the true doctrine. Before the Constitution of 1787, South Carolina was unquestionably a Sovereign State, and yet, I am satisfied, that it was not then doubted, that allegiance was due to the United States. Because for tho time being, and so long as the articles of confederation stood, that government was a part of the Government of South Carolina, established and having effect only by her compart, with tho other States. The outh of allegiance to South . Carolina, was in oflect then, an oath of Allegiance to the Uni ted States. I presume that no citizen of South Car olina, could then have levied war against the United States, and not havo been declared guilty of treason against them. We have heard much of the oath of fidelity and Allegiance, which was in use, before the ratification of the Constitution of the United States, and have been pointed to the Chancellor’s oath. P. L. 337 ; and to the oath, to be taken by Attornics on their ad mission to plead and practice law P, L. 5G3; as fur nishing evidence, that tHo State, then claimed the exclusivo Allegiance of her citizens. This might be conceded, without prejudicing my view; but I am un willing to believe, that this controversy was ever dreamed of by tho Loyd, Rutledge and Grimke, of that time. They hod seen too often and too re cently, the gallant yeomanry of the sister States of South Carolina, fighting tho glorious battles of Lib erty, on her own soil, to think of any conflict of Sovereignty. Cowpens and Eutaw, carried too ma ny united associatons of American glory, to permit a thought, that no duty, no Allegiance was due to the Government, which was itself tho cradle ofthe Amer ican revolution. But that I may not be accused of idle dreaming and of having departed from the no ble principles cf *76, read the oaths of tho Govern, or and IVivy council as fixed by the act of ’78, P. L. 297 ; neither of them speak of fidelity to the Slate, as a separate nation and Sovereignty. The Governor swears, “ f, A. B. do solemnly promise and swear to preside over the people of this State, according to the Constitution or form of government established therein and the laws thereof: that I will causo law, and justice in mercy to be executed, and to the utmost or my power, maintain and defend the laws of God, the Protestant religion and the liberties of America. So help ino God.” “ The Privy Councillors' oath, closes with a promise to keep secret every thing the discovery of which may be prejudicial, to the liberties oj America or of this State." These oaths seem to me, to be in effect oaths of Allegiance to tho Government, or tho people of the United States, considered then as on aggregate community for some purposes. What is a striking fact, is that the Governor, the acknowledged head of a free and Sovereign State, should have been required to swear to do nothing prejudicial to the Liberties of America. The Privy Councillor, swears to disclose nothing whieh may be prejudicial to the Liberties of America, or of this State, recog nizing an existing duty on the part of an officer of tho State te an aggregate community of which the State was one, which might not bo identical with his duty to the State. To my mind, it is clear as a sunbeam, that the Legislature of '78, admitted by these oaths, allegiance or obedience, to bo due by the citizen of South Carolina to the United States. . There is nothing to contradict this view in the acts of 1784, 1786, and 1788, to admit aliens to citizenship, or denizenship, and to preserve the evi dence of such admission. Aliens were then obliged to become citizens of a State, before they could have any of the rights or privileges of the several States, compos: ng the United States. Aliens now become citizens of the United States, before they can acquire the rights and privileges of citizens of a State. Their Allegiance before the Constitution of the United States, was promised to the State, and through the same oath was extended to tho United States—now, the Alien when he is admitted to be a citizen of the United States, swears to support the Constitution of the United States; and renounces all foreign Allegiance. This is an oath of Allegiance to the United States and the State in which he resides. Ex Parte, Gransein, 1 Hill 143. But where is the oath of fidelity and allegiance to the State (as it is spoken of in tho acts to which re ference is made) to be found 7 Judge Grimke, who might have said of all these matters "Magna pars fui,” omits it altogether in his collection of the laws of the State. For nearly forty years, it has been re garded by all as obsolete, or superseded hy 1 the oath of office in the Constitution, which is called in many instances the oath of fidelity to the State, and was formerly believed to be so, by all ranks and classes of the community. So far os my knowledge extends, tho Constitution al oath of office has been administered to Attornies at Law and Solicitors in Equity, on their admission to plead and practice, instead of the Oath of Allcgi ance, prescribed before the adoption of the Consti tution. I have never heard, that any other has been administered since 1790 ; and I know, that twenty years ago, it was the only oath administered to ms, when. I was admitted to tho bar. I presume no Chancellor has taken any other oath, than the oath of office required by the Constitution. For tliis certainly abrogates all former ones. The act of 1799, granting the rights and privile ges of denizenship to Alien friends, residing, or in tending to remove, within the limits of this State, directs', that they shall take and subscribe “ the oath or affirmation of allegiance.” What is meant by tbe oath or affirmation of allegianco 7 It could toot have meant what one of the Judges of the State thought to be obsolete, repealed, or expired, and which he omitted on that account to insert in that collection of Public Laws, to which the Legislature of *99, and every other since assembled in tho State, have been in the daily habit of referring, to ascertain tho laws of force in tho State. It might have meant possi bly, the oath directed, by the then Alien Law ofthe United StateB, to be administered to Aliens, on be coming citizens. I prefer, however, to give it the construction which it is susceptible of, wiiich is that it meant the constitutional oath of office, which, as I have before said, was regarded as an oath of fidelity to the State. If there is any other oath of Allcgi. ance of force in the State, to which it could have reference, I confess that I havo yet to learn the foe.: As I have before had occasion to say, an oath to support the Constitution of the United States, with an adjuration of all foreign Allegiance, is the . only oath required by the law ofthe Unitpd States, on admitting an Alien to become a citizen. The Legislature of this State in 1807, expressly recogniz ed as a sufficient guaranty, to legalize the titlo of an Alien to land, the fact of his havinjg conformed to the laws of the United States, by giving notice of his intention to become a citizen. This was in cub. stance giving the rights of a denizen, to one who bad made no exclusive acknowledgment of powu, Or right in South Carolina. It shows that to bo a citi- zen of iha United States or even to be on the way to become one, was once such evidence of fidelity, that it dispensed with all other pledges or assurances. The South Carolinian felt then, that to be an Amer ican citizen, was his most enviable title and distinction. It was his right to participate in the glorious tri- umphs of the Revolution of *76; and to share the Constitutional inheritance of freedom. Th»s rapid and desultory glance at the Legislation of the State, shows, that she did not formerly ques tion the fact, that Allegiance was due and owing by her citizen io tbe Constitution of the United States. It is now necessary to look to the Constitution of the United States, to ascertain how for the Govern, ment, created by it, is to be regarded as a primary government, entitled to the Allegiance of the people, to the extent of the Constitutional powers, confer. red on it, and no further. We have been told in the progress of this argu ment, that tbe government of the United States, was a mere league between co-Statcs-: in other words, that the spirit of the old confederation exists in the Federal Constitution, althongh the former hit been superseded and abolished by the latter. We must live in an age of political wonders and miracles, if not of natural ones. I confess, that 1 heard with astonishment the old confederation lauded as the best government in the world, after I had regarded it as settled and given up nearly 50 years ago, as a mat- ter of history, that it was an impracticable govern, meat: and that tho rescue of the people from an. archy, and misrule, and utter ruin under it, by the I Congress, tho members of the reverel State Lngusla- adoption of the Federal Constitution, was one of J tores, and all Executive and Judicial Officers, both of the marvels accomplished in the political world by the United States and ofthe several States, shall be the heroes and 6ages of *76. But praise or censure is bound by oath or affirmation" to support it. This is - - — • requiring all who are concerned in the administration ofthe Federal or State Governments, to swear alio as often the result of prejudice, as of judgment. It seems to me, to be perfectly clear, that the . _ government created by the Federal Constitution, is giance to tho Constitution of the United btatos, and, strictly speaking and in every sense, a government I of course, to the government created by it, so long as of the people, not of the whole people in the United it acts within the pale of the Constitution. States, as among themselves, but in this point of I am satisfied, from general reasoning, the Iogwla- view, of the people of each Stale. As between it 1 tion ot South Carolina, the Constitution of the Uni. and foreign States or nations, it is a government of I ted States, and tiie oath of offico in tho Stato Consti- all tho people of the Unitod States, in one aggregate tution, that allegiance and obedience are conve rtible community. It is a government: for within its pre-1 terms, and that we owe allegiance or obedience to both scribed constitutional limits, it acts upon the people, governments, to the extent of the constitutional pow- and enforces against them its laws through its own ers conferred on each. In this respect neither can judiciary, or that of eqch State. Within its own claim a paramount allegiance: the duty to cither is Constitutional limits, it is absolute, and supreme. I regulated by the respective Constitutions of each. By the 2nd Sec. of tho 6th article of the Con-1 Having ascertained the constitutional duty and al- stitution of the United States, it is declared, that legiance of the citizen, it is now necessary, before “ this Constitution and the laws of the United States I wo discuss and decide the question whether the Oath which shall be made in pursuance thereof, and all in tho Military Bill conflicts with them, to consider the treaties made, or which shall be made, under the the objection, that the act is passed in conformity to authority of tie Unitod Stales, shall be the Su. an Ordinance of the Convention, and that tho Con- nreme Law of the Ixind ; and the Judges in every vention was the people, and was illimitable. - State shall be bound thereby, any thing in the In one point of view, a Convention may be illimit Constitution or laws of any State to the contrary 1 able. It is, however, then, a Revolutionary, and not notwithstanding." Does not this supremacy of Con- a Constitutional Convention. It is one which asseiii- stitutional law, necessarily make tho government of Wes to resolve society into its elements, and to which the United States, C3 much the government of the the people necessarily give all power. I do not un. people of this State as her own immediate govern- dersland that this Revolutionary character is claimed ment ? It is too clear to admit of argument, that for the Convention which ordained the Ordinance it does. What is the necessary consequence 7 Is I now under consideration. It is to be regarded as a a government possessing such great powers, without I Convention assembling under and by authority of tho anv tie of obedience or allegiance between it and its I Constitution. It may well bo doubted whether such a citizens 7 Can it be, that in time of war, a citizen body would have any power to amend the State Con- soldier, would be allowed to refuse to shoulder liis I stitution: tho words of the 2d paragraph of the 11th musket, and say, 1 owo you no Allegiance, I will | article, would seem to place it in other hands. Bo wait until my own Stato has bade mo fight 7 Could this, however, as it may, a Convention assembling un tie say, I will assist your enemies, and you dare not I dcr the Constitution, is only tho people for the pur- punish me for treason, because South Carolina has | poses for which it assembles: and if they exceed thoso the Constitution. It may be howover that in tha a ' charge of a more ministerial civil duly,tho Leguiw would have the right to secure its performance q?’ inclination of my mind is however to the conclmi that the affirmative here must bo regarded »s incl a- tho negative and as denying to the Legklaturo il power over the subjoct. *** Be this however as it may, I am fully satisfied m legislature could not so alter the oath of office a« affect the political relations of tho citizen to the G ernme.it of tho United States and the State, 'rj,?' are fixed by tho two Constitutions and depand ^ their construction. * K>1 The powor to define and prescribe these rela; 0 . is no where committed lotlio Legislature. Indeed' would be strango if it was, when the Constitution * itself the power to which the Legislature must bend If they had the power to define and prescribe tho n. litical relations which ought to exist between the cY zen and the Stato, and the citizen and the UnittH States, they could remodel the government at D i- Tho Legislature would be thus above all ■tfitiitinna. 1 not defined it 7 These questions must have an affir mative answer, or we do owo Alloglance to our gov eminent, not our agency under the Federal Con stitution. Allegiance is the tie, it is said, which unites the citizen to his sovereign. It would seem to be clear that the fact of citizenship of the United States, would prove the fact of the Sovereignty. If instead of a Constitutional free Republic, we had the mis fortune to live under a monarchy, wo should always conclude, that when we were spoken of as subjects, tbe tor mi employed, would be understood to mean subjects of the King, and that we should owe him Allegiance. When we speak of citizens, we mean the pcoplo of a free government; and they stand in relation to the Government, as incurring in support of the institutions of Freedom, all the obligations, which the subject owes to his King. It is Allegiance in the dominions of tho Autocrat of all the Russias: it is here Constitutional obedience. If there were no such person as a citizen of the United States known to the Constitution, we might come to the conclusion, that the government of the United States is no government and is not entitled to any allegiance. But the Constitution teems with provisions speaking of citizens of the Unitod S 2nd par. of the 2nd sec. of the 1st art. ; 3d par. 3d sec. 1st Art. 5th par. 1st sec. 2nd Art. To whom do they owe allegiance 7 To the State in which they live ; or to the government, of which they are offi ccrs, and of which they swear they are citizens 7 They owe it to both governments, within their res pective Constitutions. Tako the President of the United States, os an oxample, and as names, are now "a days of some importance, let us take Thom as Jeffersun, while he was President of the United S To whom did ho owe Allegiance 7 Did he owo it to the State of Virginia, of which he wqb a Native born purposes, their act is void, unless it is submitted to the people and affirmed by them. It is true, the Leg islature cannot limit the Convention; but if the peo. pic elect them for the purpose of doing a specific act or duty pointed out by tho act of the Legislature, the act would define their powers. For the people elect tn reference to that and nothing else. The Convcn tion wus called to consider the acts which were either passed or na) be passed, by Congress, laying duties on foreign imports, for the protection of Domestic Manufactures; or for the purpose of enforcing them. Tho people elected delegates in roforcnce to this call; it was not contemplated that they should do any act which was not necessary to give effect to the object and purpose of the pcoplo. Tho Convention mot in November, 1832, and nullified the laws which they were called on to consider. These laws wcre^ciieal cd, and another act passed which was satisfactory to the Convention, and in March, 1833, they rescinded the Ordinance of Nullification: but again nullified another act of Congress, entitled an act further to provido for the collection of duties on imports, com monly. called tho “ Forco Bill.” Hero ended their powers. It is clear that the Convention hod no right to pass the Ordinance defining Allegiance, and to au thorise the Legislature to pass laws to carry it into effect. It is hence unnecessary to consider what would have been the result of a conflict between an Ordinance of the Convention and tho Constitution of the United States. This brings us to tho consideration of the oath in the act to provide for the Military organization of this State. Before we can see whether it conflicts with our Allegiance to the United States os I understand and have already explained it, wc must see what the Legislature means hy the words “ that I will be faith ful, and true Allegiance bear to the State of South Carolina." If we were left, as in times long gono citizen 7 Did he owe it to the United States, whose l by, to judgo from history and our Constitutions, wo officer and head he was for the time being 7 Tbe questions seem to involve such opposite claims, that a stranger to our institutions and government could not answer them; and yet there was involved no inconsistent duty. lie was bound to support, pro tect, and defend,' tho Constitution of the United States ; and in doing so, he was supporting, pro tecting and defending the Constitution of Virgin, ia in all her rights as a member of the Union. It was strongly put by one of the Counsel, to whom docs the Allegiance of the people, residing within the ten uiilcs square, in which the City of Washington is situated, belong 7 It cannot be, that it is to Maryland and Virginia, for neither have even territorial juris diction over them. It would seem from necessity, that their Allegiance, was exclusively due to tho Uni- ted States. But permit me to put another question, or two. To whom did the allegiance of the people of Louis, iana belong, when the United States bought the soil and territorial jurisdiction from the Emperor of the French? Not to any State of the Union; but to their government under the Federal Constitution! To whom docs the allegiance of the people- of all the States beyond tho Ohio and the Mississippi belong 7 Their territorial rights are derived from the United States, and most of the land within their limits is all constitutions. The question of Allegiance depends upon our litical relations to the Government of the U. SLta and the State. An oath requiring tho officer to or- mise to be faithful and true Allegiance bear to tl« “ Stato of South Carolina," is establishing the n„ litical relation which ho is afterwards to bear to the State, and the United States—it cither roquim something moro than to “ preserve, protect and d.. fend the constitution of this State and ofthe Unitid States,” or it is the samo tiling, and in cither poY; of viow it is void. For the (ample and not the h. gislaturo, have the right to prescribe the duty 0 f tl a officer in that respect. They did prescribe it in ti. e Constitution; und tho act ofthe Legislature uu ( . constitutional and void. I am therefore of opinion, that the motion siiou ) lie granted in the case of tho Stato ex relatione K. J. McCroady vs. Col. B. F. Hunt; and dismissed "n the case of tho Stato ex relatione James Me Daniel, — Brigadier General Thomas McMcekin. JOHN B. O’NEALE. Central Hank oi* Georgia, I MilledgeviUe, March 3, 1834. 1 P URSUANT to an Act of tho General Assembly passed on the 23d day of December, 1833, en.i. tied “an Act to alter and amend the tenth section of an Act passed 19lh of December, 1829, in rein tion to the Central Bank of Georgia, and to provide for tho sale and disposition of Lands forfeited to t» State ;" the following Lands now forfeited by t* original purchasers, will be offered at public sale u the following place, to wit: At the Coart House in the town of Campheltm, on Thursday, the 2Gth day of June, 1834, and «, the following days, until all are sold : Fractions No. 1G2, in tho seventh dial rict Coweta, : Fractions No. 163, 171, 172, 173, 175, 176,17) , should bo apt to conclude, that this meant nothing more than the Constitutional oath, although it might still be unconstitutional. The Legislature in 1832, adopted a resolution de claring that “ the primary and paramount Allegiance of the citizens of this State, native or adopted, in right due to this State.” This is one evidence ofthe sense which the words in the oath are to bear. I trust that 1 have shown that our Allegiance is due to the Government of the United States, as well as that of the State, according to tho respective Constitutions of each: and that of course in this respect there is a direct and positive conflict of duties required by the Constitutions of the United States and the State, and the oath of Allegiance as explained and understood by this resolution. - So again, although the ordinance is no authority to the Legislature to pass the act in question, yet it may be referred to as matter of history to show in what sense the word was used. Reading the oath in connection with the ordinance, and regarding the latter os fixing the meaning of the former, there can be no doubt, according to my view of our Constitu tional duty as citizens; and of the obligation of our Allegiance, binding us to both Governments, that, the oath is unconstitutional, null and void. But it is said, it is an ordinary act of Legislation granted by the United States to tho occupants. If I imposing no uew duties on the citizen: and that the allegiance depends upon the tenure by wiiich the citi-1 Legislature might constitutionally prescribe an oath zens of those States hold their lands, they owo Alle. I of office for a Militia officer. In this point of view giance to the United States, if we do not. But such 1 the ordinance of 1833, and the resolution of 1832, an absurdity cannot exist, that they owe a duty to the are considered as if no such things existed. Government of the United States, wiiich we do not. I It is first supposed, and that too, by tho venerable Treason is a violation of the tie of Allegiance. I and estimable Judge, who heard and refused the mo What suys the Constitution of the United States in tion in the first case, that a Militia officer is not an relation to it 7 It is defined, “ to consist, in levying officer under the Constitution, to whom the Constitu. war against the United States or in adhering to their I tional oath of office, is required to bo administered, enemies, giving them aid, nnd comfort.” If the i This construction is fortified by the fact that the Jasg- Government of the United States, as wc familiarly islature of’94, prescribed an oath to be taken by Mi call it, (and as I really think it is) is no Government, I litia officers in substance agreeing with the Constitu- hut is a mere agency; it is strange that, treason can tional oath in some particulars; but omitting others be conlmitted against it. Who ever heard of treason, | 1st Faust 344 being committed against any of the subordinate parts of a Government. It is ono of the essential attri butes of Sovereignty, to punish for treason. Why is it, that in Treason, two witnesses were required by the English law, to prove an overt act 7 One of its greatest sages says, that a single witness proving it would be oath against oath, the oath of the witness against the allegiance of the subject. Our Constitu. tion has adopted this provision of the English law: and it is fair to conclude that our groat sages sup ported the allegiance of the citizen to equalize and destroy the oath of a single witness. The power of amendment of the Constitution by tiirce fourths of the States, lias been, by mere thau one great name in South Carolina, held up as the ul. timatc sovciT.^ntT to which allegiance was due. I think there is no duty, no allegiance io any such ul- limate right. But it shews, however, that a govern, mont which can bo amended against - our will, and which \vill then operate directly upon us, is some, thing more than an agency; and that it bas .high sovereign powers to which obedience must be yielded. The subject is almost inexhaustiblo; and I will only add two farther views out of the Constitution ofthe State and the United States. It will be remember, ed, that before the ratification of the Federal Consti- tution, we had an oath of fidelity and allegiance to the State: since then we have had no separate Oath of Allegiance to tho State. The oath of offico in our State Constitution was, as I conceive, the sub. stitute for the old Oath of Allegiance: and clearly imports allegiance to the government of the State within her Constitution, and to the United States’ government, within their Constitution. When the officer swears to preserve, protect and defend, the Constitution of this State and of the United States, is he not sworn to be faithful and true allegiance bear to the government of tho State and of tho United States? It is impossible that it can have any other sense, for any act which was intended to be the over throw of either constitutional government, would bo the violation of the constitutional oath: and the sup. port ofthe two governments, or more properly and legally speaking, the two parts of one government, is the doty which ought to be enjoined by on Oath of Allegianco, framed in any words. Again, the Constitution of the United States re quires, that “ the Senators and Representatives in But however venerable the error may be, and how- ever often it may have been repeated, it must fall be fore the Constitution of the State which declares that, “ AU persons who shall be chosen or appointed to any office of profit or trust before entering on the ex ecution thereof shall take tho following oath:” “I do swear (or affirm) that I am duly qualified accord ing to the Constitution of this State, to exercise the office to which I havo been appointed, and will to the best of my abilities, discharge the duty thereof, and preserve, protect and defend the Constitution of this State, and the United States.* Is an office in tho tflilitia, an offico of profit or trust ? It would seem that there could be no doubt on the subject. The Constitution of tho State, 81st section of tho 1st article: shows that the Convention who framed the constitution, regarded a Militia offi cer as holding an offico of profit or trust. It declares that no person shall be eligible to a scat in the leg islature, whilst he holds any office of profit or trust, under this Stato,the United States or either of them, or under any other power, except officers in the Mili tia, Army, or Navy of this State, justices of the peace, or justices of the county Courts, while they re ceive no salaries.” The exception shows that a commission in the Mi litia, is embraced by tho words an office of profit or trust: and it is conclusive upon tbe point under con sideration. - But t.liis construction cannot affect the Commissions or acts done by officers of the Mili tia, nnder the Militia law, as it stood prior to the act of the last Session of the Legislature. For although the Constitutional oath ought to have been taken, yet there was no law declaring that the Commissions of tho officers, should bo forfeited for not taking it. The legal provision in that respect related to the oath prescribed by the act of 1794. So that tho officers were at least do facto, if not do jure, and their acts would be sustained. I doubt, and-have ever since I Was first brought to think about the subject, whether 1 he Legislature can make any addition to the oath of office, in the Consti tution. It is true that I was in the House of Repre sentatives when the law te suppress gaming was on- acted i and I am therefore constructively to be consid ered as voting for the oath contained in it's bat no vote in fact was taken upon it: and then and for years after I had cot thought of the question arising under and 180, in the seventh district originally CowcU now Campbell. Fractions No. G5, 97, 98, 124,178 and 179, in t!;e eighth district originally Cowota now Campbell. Fractions No. 1, 2, 43, 44, 52,56. 60, Gl, G3, Cl. 65,68, 69, 70, 71 and 72, in tho ninth district origin, ally Coweta now Campbell. Fractions No. 1, 18, 19,20,51,52, 131, 146, 151 152, 153, 159,1G1,16-1,1G5,1GG, 170, 171, 174,17; 176, 177 and 178, in the first district originally Cat. roll now Campbell. Fractions No. 225, 22G and 248, in tho secoti district originally Carroll now Cainplmll. Fractions No. 244, 215, 216 and 247, in the set. ond district of Carroll. Fractions No. 94, 95, 1C9, 170 and 211, ia tie third district Carroll. Fractions No. 3, 4, 5, 15, 57, 58, 60 and 93, in tho third district originally Carroll now Campbell. Fractions No. 257, 285, 286, 287, 288, 289, 250, 291, 292, 293, 397, 398, 303 and 310, in the still district Carroll. Fractions No. 1, 2, 3. 4, 5, G, 7, 8, 9, 10, 11, S3. 23, 24, 25, 26, 27 aud 28, in tho seveutli district Carroll. Fractions No. 23, 24, 69, 116, 117, 213, 2C1, 2(2, 281, 282, 283, 284, 285, 286, 287, 288, 290, 291, 305,315,316,321,322, 323, 324 and 325, in tin I eighth district Carroll. Fractions No. 50, 70, 71 and 93, in the ninth da. trict originally Fayette now Campbell. Fractions No. 135, 148, 161 and 162, in the focr- teenth district originally Fayette now Campbell. Fraction No 238, in the seventeenth district orig inally Ilenry now DcKalb. Fractions No. 176, 177 and 178, in the eighteen:! district originally Henry now DcKalb. Fractions No. 41, 42 and 354, in the sixth <U trict Gwinnett. Fraction No. 364, in the filth district of Gwinnett Fractions No. 97, 133 and 140, in the seventh dis trict Gwinnett. Fraction No. 1, and Islands No. 1 and 2, in ti e ninth district Hall. Fractions No. 1, 13, 25, 67, 68. 84, 91, 93, 10", 110, 112 and 176, in the ninth district Hall. Island No. 3, in the twelfth district Hall. Fraction No. 159, in the Utli district Hall, Fractions No. 128,129, 130, 131, 133 and 131, ia the fourth district Habersham. Fraction No. 19, in the fifth district Habersham. Fractions No. 8,20 and 37, in the sixth district Habersham. Fractions No. 52. 53, 58, o9, 205, 206, 207,209, 211, 222, 223 and 224, in the tenth district Haber sham. Fractions No. 104, 129, 139,152 and 175, in ti e eleventh district Habersham. Fractions No. 12, 13, 40, 106,215, 216 and 220, in the twelfth district of Habersham. Fractions No. 24, 25, 74, 104, 105, 108, 148,1*1 and 193, in the thirteenth district Habersham. Fractions No. 49, 76, 77 and 78, in the third district Rabun. Fractions No. 12, 39, €0, 79 and 80, in the 4A district Rabun. Fractions No. 83 axil 96, in the fifth district Rabun. The right to either of the foregoing Lots, Frac tions, or Islands, may be reinvested in the hold<! of the Cerlifcits issued by tbe late Commissioners by settling at the ds,>* ‘W an *°. u , D ^ ,J original purchase-money remaining cnpaiu ... interest due thereon, before the first day of Maf next, or with the officer" authorised to sell the sane on any day before the resale. The purchaser of any Lot, Fraction, or Islam!, will be required to pay onc-third part of the pur. chasc-mancy on the day of sale, and the remainder in two equal annua! instalments; and any purcha ser failing to pajr any instalment’ to the Central Bank of Georgia, within sixty days after the sanw becomes duo, shall forfeit the amount previously paid; and the Lot, Fraction or Island so purchased, shall revert to, and become the property of tbe State. By order of the Directors. IIENRY W. MALONE, Cashier. March 16—52—9t GEORGIA, CLARK COUNTY. W HEREAS Wiley Thornton applies to me fot letters of administration on the estate £>f Phil ip Canterberiy, deceased. These are therefore to cite and admonish all and singular the kindred and creditors of said deceased, to be and appear at my office within tho time prescri bed by law, to shew causo if any they have why saw letters should not be granted. Given under my bond Juno the 3d, 1834. YOUNG L. G. HARRIS, n. c. c. o. June 7.—12—30d. BACON! BACON!! T HE Subscriber has between 2000 and 3000 Ilf of Bacon, which will be sold on good terms, « applied for soon. SAMUEL BROWN. Athens, Jono 14—13—tf.