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The ferment of a free, is preferable to the torpor of a despoti«}, Government.” VOL. III. ATHENS, GEORGIA, JUNE 28,1834. WO. 15. S. CAROLINA TEST OATH. IN TIIE COURT OF APPEALS. Judge Johnson's Opinion on to* Test Oath, The Stale, ex relatione £ Edward MeCrady, \ V3. ) Col. B. F. Hunt. i It i, provided by an Act, passed at the last session of I damcc ^ principles by which our natural right, are the Legislature, that “ In addition to tlie Oatlis now will never, however, presume to declare an act of the Legislature void upon light and trivial grounds. Respect for the moat necessary and powerful depart, ment of the government, would forbid it; on princi ple too,, an act of the Legislature ought to be suffer, ed to prevail and operate as law, unless it is demon, strably inconsistent with the Constitution. With, out a Constitution, the power of the Legislature would be under no restraint, except those great fun. required by Law, every officer of the militia hereafter elected, shall, before he enters on the duties of bis of. fico, tako and subscribe before some person authorised by Law to administer Oaths, the following Oath : “I, A. B. do solemnly swoar, (or affirm, as the case may be,) that I will be faithful, and truo allegiance bear, to the State of South Carolina.” The Relator, Edward MeCrady, having been elect. c<1 to the office of lieutenant of Militia, subsequently to the parsing of tho Act, declined taking and sub scribing the Oath above recited ; but, notwithstand. ing, claimed to Ire entitled to be commissioned, on the ground that said Oath was enacted in violation of tho State Constitution. The Defendant, the Colonel commanding tho 1 Gth Regiment, to which ho belong, od, declined taking upon himself the responsibility of determining that question, arid refused to grant him a commission; and a motion was made before Mr. Jus. tice Bay, for a rule to show cause why a mandamus should not issuo, to compel him to do so ; and that motion having been dismissed, it is now renewed here, in the form of an appeal from that judgment. Tho Counsel opposed to the motion, without con. ceding that tho said oath is incompatible w ill the l.'un.stilution, have insisted also, that tho authority »f the Legislature is derivable expressly and directly from the Ordinance of the Convention of Delegates of the People, passed on the I8th March, 1833, wherein it is ordained and declared, ‘4That tho Alle giance of the citizens of this State, while they con- tinuc such, is duo to the said State, and that Obedi ence only, and not Allegiance, is due by them to any other power or authority to whom a control over thorn has been or may be delegated, by the State.” And tho Legislature is thereby “ empowered, from time to time, when they may deem it proper, to pro. tide for the administration to the citizens and offi cers of the State, or such of the said officers as they may thin A fit, suitable oaths and affirmations, bind, mg them to the observance of such allegiance, and abjuring ill other Allegiance.” On the other hand, it has been maintained, that the powers of the Convention were, and rightfully might )>c, limited to the duty of taking into consideration *• the several acts of the Congress of the U. States, imposing duties on foreign imports for the protec. lion of domestic manufactures, and for other un. authorized objects, to determine on the character thereof, and to deviso tho means of redress,” &c. and these objects having been attained, the Conven tion h.. ’ no authority to empower the Legislature to prescribe an oath of allegiance in this or any other form—and conceding, for the sake of argument, that tho authority of the Legislature is derived from the ordinance of the Convention, it is further insisted, tint if the term allegiance, used in tho act, is to be understood us defined in the ordinance, to be ex elusively due to the State, the said oatli is void—as being repugnant to the Constitution of the United State:—allegiance being also due to the U. States. Out of this state of the c tse, the following general propositions arise:— 1st. Whether the said oath is or is not consistent with the Constitution of the State ? 2dly. If it is not, whether the Convention had authority to empower the Legislature to enact an oath on the subject of allegiance, 3dly Whether it is not repugnant to the Constitu tion of the United States ? In the language of tho declaration of rights, con tained in our Stale Constitution, “ all power is origi- secured, and which man himself cannot abrogate; the Constitution was intended to restrain those pow ers within prescribed rules, and upon the principle that all delegated power is to be strictly pursued, an instrument intended to restrict general powers, ought to recoive tho same construction. The gene, ral power being conceded, it ought to be rendered certain, that it has been taken away or abridged. I cannot, however, give a willing assent to tho rule laid down by Judgo Watics, (if rule it can bo called) that an aet of the Legislature ough* to prevail, un. less it is bo palpably repugnant to the Constitution, that its inconsistency would bo obvious to any well informed mind—well informed minds might well enough -draw opposite conclusions as to questions which hod not been subjected to the analysis of rea. soning, and yet meet in the same view, when it had been subjected to that process. Truth does not al ways float on the surface, and it is not tho less con. vincing that it has been brought to light at the ex. penso of much toil. Many of tho aphorisms which it would be criminal now to doubt, would have been regarded as heresy in times past. But whatever may bo the process, by which we arrive at it, I am satis, fied upon the principle laid down, that an act of the Legislature passed according to the forms of tho Con. stitution, ought to prevail as a rule of action, unless it is fairly demonstrable to be repugnant to the Con. stitution; and with this rule os a guide, I will pro. cced to consider the first of the foregoing propo. sitions. Whether the Oath prescribed by the Legislature to be taken by all Militia officers thereafter to be elect, ed, is, or is not consistent with the Constitution of tho Stato. That provision of tho Constitution which this act is supposed to violate, is found in the 5th Article, wherein it is ordained that “ All persons who shall be chosen or appointed to any office of profit or trust, before entering on the execution thereof, shall take the following oath : “ I do swoar (or affirm) that I am duly qualified, according to the Constitution of this State, to exerp ise the office to which I have been appointed, and will to the best of my abilities, dis. charge the duties thereof, and preserve, protect and defend the Constitution of this Stato and of the United States.” It lias not, and I presume will not, be seriously questioned, that a militia office is an office of profit or trust, within the meaning of this article of the Constitution. I cannot conceive of a higher trust than the command of an army in the time of war. It is also an office of profit. The officor may be called into actual service, and in that event provision is made by Law for liis pay and rations—(l Faust 312)—and I shall consider this question, os admitting of no doubt But it is denied that this Article of tlic Constitu tion contains any prohibition which restrains the Legislature from exacting from an officer elected or appointed, any other oath that might be thought ex pedient, and which was not in itself directly incon sistent with that prescribed, and it is insisted, that the oath of allegiance prescribed by the act under consideration, is not inconsistent. There is not, it is true, any thing in the Constitu tion which directly prohibits the legislature from ex acting another oath, in any other form, than that prescribed, to be token by all officers, in the 4th Ar ticle—but, Lord Coke, says, (I Inst. 381) that, the most natural and genuine way of cons! ruing a statute is, to construe one part by another, of the same stat. was, what ought to be the qualifications and ago of I gtance to the United States of America sf» and if tho the members.of the Senate and House of Representa- example proves any thing, it establishes most clear, tives, and of the Governor and Lieutenant Governor I ly what I have before endeavored to maintain, that who ought to command the Army and Navy, and who j the obligation to support the Constitution, is iden. exercise the pardoning power—the conviction is ir- tically and substantially tho same as to be faithful resistible—that the determination of the Convention j and bear true allegiance to the State; ami that this is definitive, and must operate as a negative on the was the sense in which it was understood by Con- powers of the legislature, the intention is qaite as gress, is demonstrable from tho circumstances that manifest as if it had been expressed in the plainest and I in the oath before referred to,- there is no other sub. most familiar terms. The practice ot the govern, j stitutc for the obligation to support the Constitution, ment is in conformity with this view; no one ever This argument is in my judgment conclusive as to yet thought that the legislature could rightfully de- the inapplicability of the example; but I will hero re mand higher or other qualifications for members of the mark, as applicable not only to this, but all other ex. legislature, or Governor or Lieut. Governor; or do- amples of legislation, that, however they may serve privethe Governor of the powers vested in him by the to illustrate a doubtful interpretation of the Constu Constitution: and our whole history furnishes no in. I tution, they will never he' permitted to control its stance of an attempt to do so. j obvious meaning. We know that legislation is not I^t us apply this reasoning to the Article under always conducted with the strictest regard to' the consideration: I Constitution. . The stimulus of immediate interest is All persons who shall be chosen or appointed to I necessary to keep the attention always alive to the any office of profit or trust, tiefore entering on the I nice distinctions which are necessary to tho under, duties thereof, shall take the following oath,” &c. standing of the Constitution and the lawk enacted ; Here, as in the instances bofore put, there are no ( nor can a more satisfactory conclusion be always words restraining, in direct terms, the power of the drawn from even long acquiescence in an enactment legislature in prescribing any other form of oath, but of the Legislature. There may be cases so unim. to ascertain its true meaning we must subject this ar- 1 portant to the individuals afibetod by them, and so tide to the same analysis that we did the preceding. I immaterial in themselves, as not to have excited at. The convention was in tho act of framing a Gov- J tention through a long course of years. The form ernmont for the State upon such principles, and un. J of the oath prescribed by the act of Congress referred dcr such limitations, and restrictions, os in their to, may serve as an example. The officers and sol. judgment, was most conducive to thoir peace, happi. j diersof the army are, from the nature of their-offi. ness and safety,—for the most obvious reasons, its [ ccs, bound to support tho Constitution, and to them administration ought not, in any instance, to be con. it was matter of no importance in what form that ob. tided to any person who was not attached to its priti. ligation was put, and it would be but a poor com. ciples, and willing to give it his entire support—and pUmcnt to the excellencies of that Constitution let it be supposed, that, the question was put .to the I which we now, and 1 trust ever will cherish, os the Convention, what pledge ought to be required of those I palladium of our liberties, to suffer its foundations to who arc to be chosen or appointed to administer it— be undermined by such means, and let it be kept in mind, that the answer is given by The act of the Legislature of this State of Qec. the delegates of tho people, who, as a community, arc 1793, j Faust, 354, is an example of tho applica. demanding it, and the answer given, in the language t ion of tho principle of the oath prescribed by the of tho constitution : “ I do swear, or affirm, that I Constitution of the State, expressed in terms digr am duly qualified, according to the Constitution, to ent from those used in the ..Constitution—that act excrciso the offico to which I have been appointed, provides that every officer of militia shall take the and will, to tlic best of my abilities, discharge the du- j following oath before som tics thereof, and will preserve, protoct and defend the | certify the same on the back nallj’ vested in the people, and all free governments I u * c > ti* r » Ibis l 1 ® 8 * expresseth the meaning of the ma un, founded on their authority, and arc instituted for kera * a » d 8Uch construction, is ex visc.erebus actus. their pctico, safety and happiness,” and the Consti- This rule is alike applicable to all writings, constitu- tution is un emanation from this high authority. Its I tions compacts—aird it is well remarked, by design was to establish rules for the government of ^ u ^g c Nott, in Cohen v. IIofT, (2 i red. Rep. 661) the state, and to that end it has provided for the or-1 that sometimes, affirmative words necessarily imply ganization of Legislative, Executive and Judicial Departments ; and assigned to each, their appropri ate duties, with such limitations and restrictions on their powers, as were deemed necessary to the general good. To the Judiciary has been confided, (and whether wisely or not, it is unnecessary now to on. quire,) io exposition of the laws ; and indirectly, iu cases involving tho right of individuals, the super, vision of the other Departments—the Judges, them, selves, Ik ing responsible to the immediate representa- tives of the people. Under any circumstances, the exercise of this pow- Constitution does not exclude the Legislature from imposing other oaths of office, and these I propose to notice particularly, to show that so far from sus taining that position, they lead irresistibly to tho conclusion that the ground occupied by that Const:, tution was held sacred and inviolable, and that all the oaths referred to relate to the particular duties of the office, and ore within the rule before laid.down I will- begin by referring v to that Constitution: It provides “ that all persons who shall be chosen and appointed to any office, or to any place of trust, civ il or military, before entering upon tho execution of office, shall take the following oath : I do acknowl. edge the Stato of South Carolina to be a free, inde- pendent and sovereign State; and that tho~ people thereof owe no allegianco or obedience to George the III, King of Great Britain, and 1 do renounce, yeftise, and abjure all allegiance or obedience to him. And I do swear or affirm (as tho case may lie) that I will, to tho utmost of my power; support, maintain, and defend the said Stato against the said King George the III, and his heirs and successors and his or their abettors, assistants or adherents, end will serve the State in tbe office of —with fidelity, and honor and according to the best of my skill and understanding—so help me God.” This Constitution was adopted on the 19th March, 1778, and on the 28th of tho same month, only nine days after, an examplo of Legislation under it is found in the oaths prescribed to the Governor and members of the privy council. That prescribed to tho Governor ip in the following form, viz : “ I, A. B. do solemnly promise and sweur 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 cause law and justice in mercy to be executed, and to the utmost of my power main, tain and defend the laws of God and the protestant religion and tho liberties of America." That prescri bed to the members of the privy council is that he will “ well and faithfully execute tho duty ol mem. ber of the privy council according to the Constitu tion or form of government established therein and that he wiH keep secret all matters and things some magistrate who shali l which sha11 come to his knowledge, the discovery „ . j jack of his commission : “I, j of which ,na y to prejudicial to the liberties of Constitution of this Stato and of tho United States.” n\. jj. solemnly swear, (or affirm, as tho case* America, or-of the State, &c. (Pub. Laws 297.) Those of us who may be selected to fill the offices of may y, a t j w yj support and maintain to tho ut- I l k° October of tho same year the form of tho the Government, are willing to give this pledge of fi- most 0 f my ability, (lie laws and constitution of this l oilh of officc of jnstice of the peace is prescribed delity to the Government; and this pledge, we the state and of the United States." In this act, tho people, speaking through their delegates, especially word ma i n tain is substituted for protect and defend, appointed for the purpose, are willing to accept: and I an d expresses precisely "the same idea, and I have does not a negative, on the power of the legislature, no doubt was intended to have beoir expressed in the over this subject, as necessarily arise as the cases be- umo terms." and it is precisely one of those loose fore put? As well might the legislature undertake I acts of legislation about a matter which no one was Jo add to the qualifications of a member of the Iegis. I interested to investigate. As the substance was pre. lature, that he should be of a particular stature, or I served, no one was interested to enquire whether tho double tho age, required by the Constitution, as to de. | f orm bad been preserved or not. Generally speaking, mere matters of form ought not to be regarded if the substance is preserved; but it must bo recollected, that the subjeqt to which this rule is to be here applied, is an oath intendod to bind mahd of a citizen other pledges of devotion and fidel ity to the government, than those prescribed by the constitution. I am mot, however, with tlie objection, that the nii! 1 of a ! le S‘ anco ™. d fidelity, imports somothing . the c<mscienc * of raellf * prescribed by the supreme axpre , 8scd “ ‘ h0 F re ? cr, * d b y /he ^ state, the people themselves, and no Constitution and conceding that the Legislature P no e , 8e has theauthority to aller or change it-form o au on y o superadd any thing to the same therefore becomes matter of substance—we are not subject matter, or to vary the terms of that oath : thea ^ rmittcd to 6ubfiti tute other terms than these it is contended, that the subject of alJegianee not be- re^'.bed, for. peradventure, they import some- mg embraced in it, the Legislature, in virtue of their e lse-tho obligation to be faithful and true ol. general powers, have authority to prescribe an oath i egiancc bear to the State, imports, according to my of allegiance and fidelity. - .. I understanding of it, precisely tbe same as on obiiga. It is not my purpose, here, to enter into an inqui. I tion to preserve, protoct and defend the Constitu. ry asto the nature of allegianco and fidelity; that I tion ; but tlie very foundation of the authority to more properly belongs to another branch of this case; I impose that obligation, is, that it imports something but I will passingly remark, that the government else. I have no doubt about tho authority of the may, under the authority of the Constitution, demand j Convention who framed tho Constitution, to have of the citizen the surrender of .the lust dollar which ho possesses, and to peril his life in its defence, if the public good requires; and if fidelity and allegiance has still higher claims upon him, I cannot perceive ip what way they are to be satisfied. But let it be con. ceded, that fidelity and allegiance import something more than is expressed in the obligation to support required on oatli of fidelity to the government, by which they are protected both from officers and citi zens, and that they had the right to put it in the form they did, or in tho form of an oath of fidelity and allegianco as prescribed , in the act; but when an oath is prescribed, differing in terms from that re- quired by the Constitution, and abont tho import of by an act by which ho is required to swear that he will truly demean himself in the officejof justice of peace, and will conduct himself impartially according to the best of bis skill or knowledge, and the laws, usuages and customs of the State," &c.—(Pub. Laws 301)—and so of the oath of office of Commissioner of Locations, that he “ will well and faithfully exe cute the office of commissioner-of Locations, &.c. “ without giving a preference to any through favor, fear or reward.” (Pub. Laws 325.) And the fol lowing is the form of the oath appointed to be taken by the Chancellors by the act of 1784. (Pub. Laws 337.) “ I, A. B. dp swear that I will well and tru. ly serve the people of this Stato in the office of the Judge of the Court of Chancery, and. that I will do equal right to all manner of people, great and small, high and low, rich and poor, according to equity and good conscience and the laws and usages of South Carolina, without respect of persons, accor ding to tho best of my knowledge, skill and ability —so help me God.” Now, in all these instances it will be perceived calculated to secure fidelity to the government of the State and the faithful discharge of the duties of the officer. Wo may perhaps find in Georgia other examples worthy of imitation. By an act of tho Legislature of that State membora of the Legislature are required to take an oath that they have not been concerned in a duel, and I have recently understood from a gentleman, highly distinguished In that State for his legal attainments, that instances have occur- red in which members returned have refused to take that oath, and that by common consent it is conceded that the constitution having prescribed the fbimof tho oath, tho act was void. I have thus demonstrated satisfactorily at least to my own mind, that the oath prescribed by the con- stitution to bo taken by all persons chosen or appoin. ted to any office of profit or trust, that they would “ support, protect and defend tho Constitution of this State,” is all the plodge that tho people of this State Were witling to give, or disposed to accept of fidelity and allegiance to_lho Stato—and that tho peoplo themselves having In tho constitution proscri bed the form, the Legislature had no authority to odd to, vary, or alter it, although. tho terms used might import the same thing, and "consequently, that so much of tho act of tlie Legislature of tho last ses sion as prescribes the form of an oath of allegiance anti fidelity to the State is repugnant to the Constitution. This brings me to the next general proposition, whether tho convention (of March, 1833) hod author* ity to empower the legislature to enact on oath on the subject of allegianco. That Convention was holden under the authority of an act of the Legislature, (passed on the 25tli Oct, 1832) wherein it is recited that “Whereas, the Con. gress of the United States, bath, on divers occasions, enacted laws laying duties and imposts for tlie pur. pose ofencourag ing and protecting domestic or Amer ican manufactures, and for other unwarrantable par. poses, which laws, in the opiuion of the good peoplo of this State, and the legislature thereof are unau. thorised by tho constitution of the U. States, and ore an infringement of the rights reservod to the States respectively, and operate to tho grievous injuiy and oppression of the citizens of South Carolina: And whereas, to the State, assembled in Convention, it be. longs to determine tho character of such acts, os well as tho nature and extent of the evil, and the mode and measure of redress.” “ Be it, therefore, enacted,” &c. “ that a Convention of the peoplo of this State shall bo assembled at Columbia on the third Monday in November next, then and there to take into consi. deration tlie several acts of the Congress of the Uni. ted States, imposing duties on foreign imports for the protection of domestic manufactures, and for other unauthorised objects, to determine on the character thereof, and to devise the means of redress, und fur- ther, in like manner, to take into considcratian eucli acts of tho said Congress, laying duties on imposts, as may bo passed in amendment of, or substitution for, the act or acts aforesaid, and also all other lt.ws and acts of the government of tho United States, which shall be passed or done for the purposo of more effec tually executing and onforcing tho same.” Tho act then goes on to provide for tho election of delegates and their qualifications, and to prescribe the tirno and places of holding the election. In pursuance cf this act, the people proceeded to the election of delegates who assembled at the tiras and place appointed, and by an Ordinance ratified on the 24th of November of the same year, proceeded to that the oaths prescribed refer exclusively to the par. doclarc and ordain, that certain acts of the Congress ticular duties which the officer might be called on J of the United States; purporting to be laws for tho a negative of what is not affirmed, as strongly as if expressed. That remark was applied to tho question, whether, an act of the legislature, authorizing the Gov rnor, in case of the sickness of' the Judge on circuit, so as to bo unable to hold the Courts, to ap point a person to perform his duty, was or was not constitutional—and to see its full force, it will be no. ccssary to remark, that the fith Art. of the constitu tion, declarcirihal the Judges of tho Superior Courts shall bo elected by both branches of the Legislature— and ultlio’ negative terms are not introduced to re. strain the appointment of Judges, in a different man or is one of great delicacy, and no combination of n ® r > *kat learned and able Judge came to the conclu- and defend the Constitution—it is still but a pledge I which there is so much diversity of opinion, there is of fidelity to the government—and so is the oath at least some danger that the conscience may be in prescribed by the Constitution—the form in which I peril of moral poijury. If tho import be different, it should be put, and the extent to which it should I the citizen or officors may be required under the bo demanded, would necessarily have entered into | Constitution, to discharge duties inconsistent with the consideration of tho Convention in framing the I the obligation which the oath imposes, and that con- Constitution—and there is nothing unreasonable in stitutes an insuperable objection, to the superaddi. supposing that the question whether it should bo put I tion of any other obligation than that imposed by in the form adopted by the Constitution, nr in the form the Constitution. of an oath oi fidelity and allegiance -is prescribed by The oath required of sheriffs, justices of the peace the act, was distinctly before the. Convention—if it and quorum, by the act of 1816, In' addition to tho had, 1 can suppose very satisfactory reasons why J usual oath of office, to enforce and carry into effect the former would have been—and in my judgment I the act against gambling, has been relied on as ought still to be preferred—allegiance in its tcchni-1 an instance in which the Legislature lias super, cal feudal sense, was intended to express the obiiga. I added other.obligations in tho form of an oath, than tions of tho vassal to his Lord, and of the subject to I those imposed by the Constitution* and as another his Prince, founded jipon the right to govern, and | instance of the Legislative interpretation of the Con- circunntanccs, could better illnstrate its great im portance, and the vast amount of responsibility inci dent to A* discharge, than thoso which enter into this case. The Delegates of the people convened for the purpose cf providing a remedy for evils arising out of certain acts of Congress, which are supposed to be unconstitutional and oppressive, have, upon full deliberation, solemnly declared, “ that tho allegi once of the citizens of this State, while they conti nue such, is due to the Stato, and that obedience only, and not allegiance, is duo by them to any other power.” The Legislature, which convened after the promulgation of this declaration, have, by eion that the constitution must be so understood. If one having authority, prescribe the mode in which a particular act is to be done, can the agent who exe cutes it substitute any other ? Does not the act of prescribing the mode necessarily imply a prohibition to all other modes ? But let us test this construction, according to Lord Coke’s rule, by construing this part of the constitu tion with the others— Without a Constitution, tho Legislature like the British Parliament, would have been supreme, and without any other rale for its government, then its will. The only purposo of a constitution was, there- a resolution, solemnly affirmed tlie correctness of I for®, to limit this power by prescribed rules, and on the principle contained in that declaration, and by I looking through tho Constitution it will bo found, an act, provided that every officer of militia thoreaf. tha * there is no grant of the law making power, for ter to be elected, should tako an oath r»f allegiance that was unnecessary. Every provision in the consti- to the S tate. On the other hand, a large and veiy tution, affecting the power of the legislature, must, rcspccti.Mo minority of the people have, in public therefore, necessarily be understood, as limiting that meetings and through the public journals, denounced power unless it is otherwise expressed—and I tako it, the principle of tho declaration of the Convention that in every instance in which the Constitution has and the act of tho Legislature as subversive of tho prescribed a retie, in affirmative terms, without oth- rights of conscience, and contraiy to both the State ®* qualification, tho negative arises by necessary inl and Federal Constitutions; and in the angry discus- plication, unless tbe terms in which the oath of office sion which has grown out of this controversy, and prescribed in tho 4th Art. and before recited, consti- which is still continued with increasing animosity, tutcs an exception, all the bad passions of the human heart, have been For examplo:—The 6th Sec. of the 1st Art. pro- excited to the highest pitch, and want nothing bat video that, “ no person shall be eligible to a scat in an exciting cause to call them into action. the House of Representatives unless be is a free white It is a question, about which the parties have I man, of the age of twenty one years, and bath been ceased So reason, and have settled down upon oppo-1 a citizen and resident of this State throe years, previ- site con elusions,as aphorisms, admitting of no discus. | ous to his election"—nor unless he possess certain sion, and it is impossible to approach it without a property qualifications. The 8th Sec. contains tbe full semis of the great responsibility which it imposes. I same provision, expressed in the seme terms, with res. But, it in a duty imposed on tho Court by tho Con-1 pect to the qualification of Senators,'varying only as atitutio a—and if there be any duty more sacred than | to tho age, residence and property qualification*— ail others, it ia that which devolves on the Court to and, so of the age, residence and property qualifica- preserve that Constitution from violation—except as tions of the Governor, and Lieutenant Governor, pro- tho people may, in their wisdom, think proper to 1 vided for in the 2d Art.—the Governor shall be Com. change, amend, or alter it. It is the sentinel which mander of the Army and Navy of tho State. He the Constitution has placed, me a guard upon the I shall have power to grant reprieves and pardons, other departments of the government, as the best He shall take care that the laws are faithfully cxecu- sccurity for the rights and liberties of tho people— ted in mercy, &c. In all these instances and many and I approach the questions now submitted, with a more that might be referred to, the rules are expres- consciousness that I shall have discharged that duty, I sed in affirmative terms—nor is there any thing in the whatever may be tbe consequences. terms themselves which directly imply a negative to Tho uithority of the Court to declare an act of the I the power of the legislature, in prescribing a greater Legislature unconstitutional, has never been ques- age, a longer residence, or higher property qualifica tion^. It results necessarily from that general tion of the members of the House of Representatives, power, which the Coart possesses to expound the and Senate, and of the Governor and Lieutenant Gov- law. The Constitution is the paramount law, and ernor—or that-they shall not supersede the Gover. nil acts of the Legislature or of other departments of nor in the connnand of the Atmy and Navy, or vest the government, repugnant to, or inconsistent with tho pardoning power some where eleo. But when it it, are necessarily inoperative and void. Tho Court j is recollected, that the question before tho Convention the duty to obey. Tho men who framed that Con-1 stitution. stitution were tho representatives of a people, who, I I have before remarked, that the leading object of by an eventful struggle, and at the expense of much I the oath' prescribed by the Constitution, was to exact blood and treasure, had thrown off their vassall igo I a pledge of fidelity - from those concerned in the ad. to the British crown, and assumed the right of self, miuistration of the government. But the oatli im- govemment—they met in convention, feeling for I posed by this act, refers to a different class of du, themselves and their constituents that proud indepen. ties. The act was intended to suppress the practice dence which their situation was so well calculated I of gaming, and it was made the duty of those offi- to inspire—they felt that all were upon a footing of cers to carry it into effect; and there is nothing in equality: the humblest individual would have disdain, the nature of the oath, which by any possihle con- ed to bend the servile knee to any being on earth, and j struction, can render the obligation which it imposes, it is not surprising that whilst every individual was I inconsistent with the oath prescribed by the Const! willing to give the most solemn pledges to support I ration. The Legislature had assigned to these offi- the government of their choice, tho greatest repug. I ce rs a particular duty, and they had a right to re- nance should have been felt to associating with it an I quire any security that might be deemed necessary obligation applicable to the degrading relations of f 0 r its faithful performance, not incousistent with Vassal and Lord, Subject and Prince. It is true that the Constitution; and it is upon this principle that the term allegiance is not unfrequently used to ex. bonds for thefaithfiil discharge of the duties of office press the relations existing bet wen tbe citizen and | are required of most or all ministerial officers. the government, and when 60 understood is void of offence ; but at the time the Constitution was framed, it is no matter of surprise if it should have been re. jeeted on account of the degrading associations con. I m eted with it, nor would it excite wonder if even at I this day the mode of expression adopted in the Con- stitution, by which ail the objects ore attained, should The Constitution in the article before recited does, it is true, require that all officers shall tako un oath faithfully to discharge the duties thereof, and as a general provision, covering all duties, there is perhaps room to doubt whether the -Legislature have tho pow. er to require any oihor—but I am satisfied that the exercise of tho. power is in strict conformity with be preferred it the public mind could be brought to I the Constitution. As before remarked, so roUeh deliberate on the subject dispassionately. I of the oath -proscribed in the Constitution as relates |The 3d.sec. of the 6th art. of the Constitution of] to the duties of office, is expressed in general terms, the United States provides that members of Congress I and intended to cover all duties, and cannot be con- “ and members of the several Stole Legislatures, ( strued to exclude appropriate obligations to discharge and all executive and judicial officers, both of the Q. a particular duty which tho Legialature might as- Slates and of the several States, shall be bound by 1 sign, and is precisely the case supposed in a dictum oath or affirmation to support this Constitution ;” of chief justice Marshall in McCullough, vs. Mary- and an example that 4his provision in the Gonstitu. I land, 4th Wheat. 416, which is relied on by tbe tion ia not regarded as prohibiting Congress from I counsel opposed to the motion ; when he says, “ that snperadding other obligations, is drawn from the act he would to .charged with insanity who should con| of Congress of March 1802: Ingersol’s Dig. 38, by tend that the Legislature might not superadd to the which the officers and soldiers of the army are re- I oath directed by the Constitution, such other oath of quired to take and subscribe an oath that ho “ will office as its wisdom might suggest.” The chief j® 8 * bear truo faith and allegiance to the United States of tice was maintaining the proposition that when the America,” &c. But the cases are not analogous I Constitution has designated -a particular end, with. the Constitution of the United States doos not pro- j out hiving prescribed the means of attaining it, fess to prescribe the form of tlie oath as is done in Congress were at liberty to select such as they should the State Constitution, bat merely to state tbe prin- j deem tho most appropriate, and ho illustrates it by ciple on which it is to bo framed, leaving it to the I the oath of fidofity-required by the Cpnstitution, and States, so far as it is applicable to them, to pre- concludes with the expresrion above recited, and sento tho form; end to Congress to do the same so surely that cannot be taken ■'as authority in a case far as it is applicable to tho-subjects under their con- like this, when the end, the fidelity of the officer to trol—the principle laid down in tho Constitution the government, and the means, the oath prescribed limposea an obligation to support the Constitution; by tho Constitution, are distinctly and specially de- and tho form in which it' is applied in our State Con- rignated. The counsel opposed to the motion have stitntions ia, that the officer shall swear that he will I referred to a long list of tho acts of iho Legislature “rapport, protect and defend tho Constitution"— following the Constitution of 1778, for the purpose and in the act that he will “ bear trie faith and alio- j of shcwingthxt an oath of office, prescribed by tho to discharge, and were evidently intended to secure their faithful execution—and further examples of the same sort may to found in the oaths prescribed to the Judges, Clerks and Sheriffs of the county Courts, by the act of 1785; (Pub. Laws 367.) In that pre. scribed by the act of 1785, to Justices of tho Court of Caveats, (Pub. Laws 334) and in that prescribed by the act of1787, to to taken by.Eschcators; (Pub, Laws 429) end I have no doubt a further examination of tbe acts of Legislature would bring to light many other examples of tho same character—and what does oil .this prove ? why most incontestibly that that Constitution was considered os having prescri. bed an oath on the subject of fidelity or allegiance to the State in such terms as were thought tost calcu. lated to secure that object, and that the Legislature did not think themselves authorized to iuterpolatc any thing into it, for in all the examples before enu. uieraled, there is no instance of the most distant al lusion to the subject, but on tho contrary the oaths of office prescribed in these acts are confined to the ap. preprints duties of tho office. The Constitution of 1778, like the Constitution of 1799, contains a general oath of office faithfully to discharge the duties thereof—and the practice of the Legislature, under both Constitutions, furnishes a most conclusive argument in support of the position which I have before advanced, that this general provision was not understood to exclude tbe Legis lature from exacting the plndgo of an oath from the officer to discharge tlie particular duties assigned him, in the instance of the act of 1816, on the subject of gaming. I will notice only one other instance of Legisla tion under the Constitution of 1778, and which has been put in requisition on the argument. It is that of the act of 1785—(Pub Laws 863)—that an attorney, at tho time of his admission to practice, shall “take tho oath of allegiance and fidelity to tlie State.” What oath 1 Whynecosaarily the oath pre. scribed by that Constitution, by the use of the defin-' ito article the same known oath is necessarily refer- .red to, and we know of no other than that prescribed in tho Constitution. There is another reason which is equally satisfactory on this subject: The office of an attorney is not an office of profit or trust with, in the meaning of the Constitution, no more so than the profession of medicine or divinity, and the legis lature were at liberty to prescribe any form of oath that they might think expedient and proper. Examples from tho Legislation of other States, in relation to this subject, have been relied on to show that oaths of allegiance are the subject of I^gisla. live regulations, tot on referring to them it will to found that in all tlie States where this license is al. lowed, ii is predicated on constitutional provisions, or where tho Constitution contains Mo provision on the subject. The Constitution of Massachusetts may be put as an example of the first description. In the general oath of office, in tho 1st article of the 6th chapter, an oath of allegiance is incorporated in the following terms : “ And I do swear I will bear true faith and allegiance to tho said Comroonwoalth”-and tho same form is substantially pursued in nn amend- ment to that Constitution and the requisition of an oath of allegiance in that form is not only consistent with the Constitution, bnt expressly enjoined by it. Tbe constitution of Georgia contains no general provision on the subject of allegiance, bat the 19th sec. of the 3d art. requires that the members of the Legislature slut)! take an oath that he has not obtain- his election “by bribing, treats, canvassing,” &c. that he considers himself constitutionally qualifi ed,” &c. and that ho “ will bear true faith and alle giance to the Stato,” &.C and the 5th sec. of the 2nd art. prescribes the form of the oath of office lo be taken by the Governor. But no form of on oath of office for any other officer nor any principlo directo ry of the manner in which they should bo framed, has struck my eye on looking over that constitu ion, and consequently tho Legislature were at liber y o adopt that "form which in their judgment was Dost imposing ol duties and imposts on tbe importation of foreign commodities,' &o, ‘ are unauthorised by the Constitution of the United States, and violate the true meaning and intent thereof, aqd are null, void and no law, nor binding upon this Stato, its officers or citi zens;’ and they thereupon proceeded to provido.ways and means to provent the operation and enforcement of the raid acts of Congress witliiu the State. Not long after this the Congress of tho United States passed an act remodelling the duties and im. posts on foreign importations, and thereupon the convention was again convened, and by an Ordi nance ratified on tjio 15th of Maroh, 1833, in which it is recited that Congress had recently passed an act which had provided for such a reduction and modifi. cation of the duties on foreign imports as would ulti. mately reduce them to the revenue standard—It to ordained and declared that the ordinance above re-' cited, and ail acts passed in pursnanco thereof, should from thenceforth be deemed and held to have no force or effect. The convention proceeded, notwith standing by the ordinance before recited three days after, to declare “ that the allegiance of the citizens of this State while they continue sneh, is due to tho said State, and that obedience only and not allegi. ance is due by them to any other power or authori ty,” &c. and they thereupon authorize and empower the legislature to provide for the administration of suitable oaths binding the citizens and officers of tho State to the observance of such allegiance and abjuring all other allegiance, and this authority is claimed ou abrogating the Constitution, and as conferring on the Legislature tbe power to enact tlie oath contain^ ed in the act under consideration. - I have tbits presented, in -a connected view, tho whole ground of this question, and it is apparent that the evil which was supposed to render the calling of the Convention necessary, was the unconstitutional, ity of the acts of Congress, imposing duties on tho importation of foreign commodities, lor the protec tion of domestic manufactures, and the object to rab. uiit that matter to tbe consideration of delegates ap pointed by the people for that especial purpose, and that they mig-.t adopt such measures as the Cxigen. pies jf the case mightin ttoir judgment demand. In Iho appointment of delegates to that Convention, thet people acted upon the faith that they were to to charged with those duties and no others, and tho as. sumption of any other powers.than those necessary to the attainment of the objects in view, would have been a violation of tlie trust reposed in them, and an usurpation of the rights of the people. The idea to, that the Convention possessed ail the powers of tlie people, and might rightfully exercise, it in relation to oil subjects,’and in any manner they might think fit. - Can it to supposed, that tbe good people of this State thought that in tho appointment of delegates to that convention, they were conferring on them tho authority to transfer their allegianco to tho grand Turk, or the Emperor of Russia ; or to rndtilgo in any other caprice thoy might think proper ? No such thing. They had been invited by the legislature injurious to tho interest of the citizens of the State— thev accepted the invitation and elected their dole, irates. and upon the common place principle that tho authority of the agent is limited by the powers con- ferred on him by the principal,tho powers of the del- e galea were limited to tho objects designated by tho a d-under which the convention was called. . Now the preamble to the ordinance of the 15th of March, befopeirecited, shows that all the objects of calling the Convention, had been attained, the offcm sivc acts of Congress had been repealed, ox so modi fied as to be acceptable to tho Convention; and on the faith of it the former ordinance of the Convention and the acts cf tho Legislature passed in, pursuance of it, and intended to provide a remedy agamst the evil, wore annulled and repealed.