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ARGUMENT
JAMES L. PETIGRU, ESQ.
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90NSTITUTIONALITY OF AN ACT or TIII. I ra... .

PAssel 191H peck M. Beh, 1833.
ENTITLED

AN ACT to PRovide Fort THE MILITARY ORGANIZATION OF THIS STATE.

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PUBLISHED BY J. S. BURGES.

1834.

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The members of the Legislature, who were elected on *}. 5th of October, 1832, at an extra session, on the 26th day of October, passed an Act to provide for the calling of a Convention of the People of this State, the Preamble and first Clause of which are as follows: ..Whereas, the Congress of the United States hath, on divers occasions, enactd laws laying duties and imposts for the purpose of encouraging and protecting domestic or American manufactures, and for other unwarrantable Purposes; which laws, in the opinion of the good people of this State, and the Legislature thereof, are unauthorized by the Constitution of the United States, and are an infringement of the rights reserved to the States respectively, and operate to the grievous injury and oppression of the citizens of South-Carolina. Ånd whereas, to the State assembled in Convention, it belongs to determine the character of such acts, as well as the nature and extent of the evil, and the mode and measure of redress: Re it therefore enacted, by the Senate and House of Representatives of the State of South-Carolina, *ow met and sitting in General Assembly, and it is hereby ordained by the authority of the same, That a Convention of the People of the said State, shall be assembled at Columbia, on the third Monday in November next, then and there to take into consideration the several Acts of the Congress of the United States, imposing duties on foreign imports for the protection of domestic manufactures, and for other unauthorized objects; to determine on the character thereof, and to devise the means of redress; and further, in like manner, to take into consideration such acts of the said Congress laying duties on imports, as may be passed in amendment of, or substitution for, the act or acts aforesaid; and also, all other laws and acts of the Government of the United States, which shall be possed or done, for the purpose of more effectually executing and enforcing the same. The Convention at Columbia, on the 18th March, 1833, passed an Ordinance, entitled An Ordinance to nullify an Act of the Congress of the United States, entitled “An Act further to provide for the collection of duties on imports,” commonly called the Force Bill, containing a separate clause in the following words:—We do further ordain and declare, that the allegiance of the citizens of this State, while they continue such, is due to the said State; and that obedience only, and not allegiance, is due by them to any other power or authority, to whom a control over them has been, or may be delegated by the State; and that the General Assembly of the said State, is hereby empowered, from time to time, when they may deem it proper, to provide for the administration to the citizens and officers of the State, or such of the said officers as they may think fit, of suitable oaths or affirmations, binding then to the observance of such allegiance, and abjuring all other allegiance; and also to define what shall amount to a violation of their alle

giance, and to violation. By an Act passed on the 19th day of December, 1833, entitled “An Act to provide for the Military organization of this State,” it was enacted as follows:– “In addition, to the oaths now required by law, every officer of the Militia, hereafter elected, shall, before he enters on the duties of his office, take and subscribe, before some rson authorized by law to administer oaths, the following oath:—‘I, A. #. do solemnly swear, (or affirm, as the case may be) that I will be faithful and true allegiance bear to the State of South-Carolina.’” On the 28th of February 1834, Edward M'Crady was elected Lieutenant of the '. Light Infantry, a military corps in the city of Charleston, and jo: his commission, which Colonel Hunt, the commanding of: ficer of the Regiment, refused to grant, unless he would take the above oath; which herefused to do,and applied to Judge Bay, for a rule to shew cause why a Writ of Mandamus should not issue, to require the said Colonel Hunt to deliver to the plaintiff his commission. His Honor, upon hearing the case, dismissed the rule; and from his judgment the Relator appeals, and moves the Court of Appeals to reverse the order made by Judge Bay, and to make the rule absolute, and takes in support ofhis motion the following grounds: First, That it is a violation of the Constitution of the State, to require the appellant to take the oath contained in the Military Bill. Because the 4th article of the Constitution declares, 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 swear or affirm, that 1 am duly qualified, according to the constitution of this State, to exercise the office to which I have been appointed, and will, to the best of my abilities, discharge the duties thereof, and preserve, protect and defend the constitution of this State, and of the United States.” And that so much of the Military Bill as goes to add to or alter the foregoing oath, or to impose any other oath of office, is, therefore, unconstitutional and void. Secondly, That the authority of the islature to enact the oath contained in the Military Bill, cannot he derived from the Ordinance of 1833, for the following reasons: 1. That the terms of the Ordinance are not pursued, nor its authority referred to, in the enactment of the said oath; nor does it appear, with certainty, that the oath contained in the Military Bill, is an oath binding the citizen to the observance of such allegiance as the Ordinance defines. 2. Because the Convention did not authorize, and in fact could not authorize, the Legislature to overrule the Constitution, by changing one of its articles, without

provide the proper punishment for such

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conforming to the rule, by which all amendments to the Cónstitution must take place. And for this proposition, the appellant has the authority of the same Legislature, who, by bringing in and passing a Bill to change the Constitution in this behalf, have confirmed and ratifled this construction.

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3. Because the Convention, in undertaking to define allegiance, and to establish a Test Oath, exceeded their powers, as those matters are not within the objects for which they were called. -

4. Because the Ordinance itself is clearly repugnant to the Constitution of the United States, and therefore null and void. ,

IWIFE. PETIGRU2S ARGUMIENT.

A case that has excited so deeply the attention of the community, will no doubt receive the most serious consideration of this Court. To say that it is a Consitutional question, is enough to make it understood that the subject is one of the highest concern and interest; for a question of constitutional law exceeds in importance the discussion of a private right, as much as a general rule is of more importance than a particular decision. And if there is any thing of which we may be justly proud as an improvement in the science of Government, it is that American innovation, by which the Judiciary is made co-ordinate with the Legislature, and the injured are authorized to appeal from #. Law to the Constitution. Nor can any case be imagined more worthy of the exercise of this o and solemn duty of the Judiciary than this, in which the decision must affect, not merely the freedom of an individual, but the right of many thousands of the people of this country to be accounted free—in which not the inheritance of a few acres only, but the birthright and portion of every man who does not subscribe to the prevailing creed, are at stake. The parties to the Record are Mr. M'Crady and Colonel Hunt—and the office about which the dispute arises is one of minor importance; an office, not only of small account in itself, but in the eyes of the parties perfectly insignificant, in comparison with the principles which are involved. Between the parties to the Record there is in fact no dispute. Col. Hunt consents to make the question for the sake of all who have an interest in common with the Plaintiff; and Mr. M'Crady pursues his right in behalf of thousands of his fellow citizens, for the purpose of testing the validity of a law, which incapacitates them from office. This civil incapacity with which we are menaced, extends not merely to offices in the militia but to all places of power and trust under the authority of the State; and not to the right of holding office merely, but to every constitutional and civil privilege. For by the Ordinance of 1833, the principle of disfranchisement is adopted in the broadest terms of tyranny—and though the disability in question applies in this instance to military office only, there is nothing to prevent the extension of the principle to all civil rights and immunities whatever. - -

The Oath which Mr. M'Crady is required to take is in the following terms: “I swear that I will be faithful and true allegiance bear to the State of South-Carolina,”— and he refuses to take it, because he acknowledges allegiance to the United States, as well as to the State of S. Carolina, and the authors of this oath,by their authoritative construction, have declared that allegiance to the Stae, is and shall be equivalent to abjuration of allegiance to the United States. The terms of the Oath itself may not suggest the objection. The text may be ambiguous, but the commentary removes all doubt. Behold then the alternative to ão. which is submitted to the citizen—to subscribe to a party test, or to swallow an ambiguous oath.

Allegiance is derived from the barbarous latin word

higeantia—it is peculiar to the English law, and there!

we must look for its proper signification. Fortunately we are at no loss for the most ample information concerning the character of allegiance in the monarchy which is its native soil. In Calvin’s case 7 Co 1., it forms the subject of one of the most curious and elaborate arguments among the judicial discussions of that period. § is called the Bond of Subjection between the Prince and his subject; the tie by which the monarch holds his vassal, and by which he draws him from the remotest corner to which lie can retreat. A chain which none but the royal hand can hold, and which the sub#. can never shake off. It is the same in effect, with iege homage, an abject ceremony which furnishes a striking illustration of the feudal origin of allegiance, and the profound subjection which it implies. “For when the tenant shall make homage to his Lord, he shall be ungirt and his head uncovered, and his Lord shall sit, and #. tenant shall kneel before him on both his knees, and hold his hands jointly together between the hands of his Lord, and shall say thus, “I become your man from this day forward of life and limb, and of earthly worship, and unto you shall be true and faithful.”. And then the Lord so sitting shall kiss him.” In simple homage, there is a reservation; as thus, “saving the faith, I owe our Sovereign Lord the King.”. But in liege homage, which differs only in this,that it is performed to none but the Sovereign, there is no such saving. (Co. Lit. 64b.— 1 H. H. 65.) From Calvin's case and the common law authorities, we learn that the qualities of allegiance, are: that it is natural, universal and perpetual—and due exclusively to the King in his natural person. So intimately is the original idea of allegiance connected with royalty, that it is said by Lord Coke to belong to the King as an attribute proprium quarto modo—that is— to the King, and to the King always : to every King, #. to none but the King—omni solo semper—7 Co. 12a. In strict propriety of language, allegiance to the State, like citizen King, is nothing more than a misnomer. No phrase can be less apt to express the duty of a citizen, whose obedience belongs to the law, than a word which implies most strongly and emphatically, reverence and subjection to the person of the sovereign. We can easily conceive why our ancestors excluded from the Constitution of the United States, as well as from that of South-Carolina, a word connected with so many heterogeneous associations as allegiance; the wonder is that the noble example of plain dealing and simplicity which they have left us, should be lost on their successors; and that we should see at the present day, such an anxiety on the part of some people to put on the cast off finery of the Royal Livery. There is no doubt, however, that when terms which express the relation between King and Subject, are adopted into the laws of a Republic, they must be received in a new sense, with a modification of meaning corresponding to the altered character of the Government. And so in fact we find the term allegiance used in some of the States. Neither do we deny that the State may require an Oath of Allegiance from her citizens. At least there is as much propriety in speaking of allegiance to the State, as of allegiauce to the United States. No one supposes that the government of the United States is supreme, beyond the sphere plainly defined by the constitution : Neither does any one deny that the State is supreme within its proper sphere of action. As to the boundaries of power between the Federal authorities and the State authorities, men have disputed from the dawn of the constitution to the present day: and from the assumption of the State debts, in 1790, to the last debate on the incorporation of the Bank of the United States, the acts of the General Government have been assailed and defended on the same grounds; and

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truth requires us to add, that South Carolina has been on every side of the same question. But that the States, in the language of Mr. Madison, retain a residuary and inviolable sovereignty over all objects, not embraced within the powers of the General Government, has never been denied, amidst the changes and contentions of party; at least not by any men or set of men, considerable enough to obtain for their opinions any general, attention. If the oath in question, therefore, stood alone or upon the words of the Military Bill only, we should, without hesitation, construe the obligation which it imposes, as an oath of fidelity to the State, commensurate with its reserved sovereignty, and consistent with an equal fidelity to the United States, within the sphere of the constitution. But if the State authorities have set their own definition on this term “allegiance,” we are not at liberty, in the oath under consideration, to construe it in any other way; and no honest man can take the oath in any other sense than that which it would bear if this word was omitted, and the corresponding terms of the definition inserted in its place. Now the fact is, that the authors of this measure have set a definition on the word allegiance, which makes it to all intents and purposes, a term of art, to express certain controverted opinions concerning the nature of the constitution of the nited States, and renders the oath in question a complete criterion of party—in one word, a Test Oath. There is, I apprehend,a mistake that some o are very liable to fall into, in speaking on this subject, by confounding test oaths with religious persecution; for many persons seem to imagine that the new oath, is not a test oath, because it does not interfere with religious liberty. But in fact, all test oaths are political, not religious, in

their objects; and if Test Acts do sometimes put the

principle of exclusion on religious opinions, it is not against such opinions as offensive to Heaven, but as dangerous to the state that they are directed. In the age of persecution, a sincerebut misguided zeal for the honor of God and for the salvation of man, led to the punish

ment of the heretic, whether he outwardly conformed or

openly dissented. But Test Oaths were the growth of a later age; they were not exacted pro salute animifor the spiritual welfare of people in office; but had their rise, as well as whatever justification was ever attempted of them, in considerations of public safety. The Union of Church and State, and the King’s supremacy, sufficiently account for the connexion, real or supposed, between the security of the State and the exclusion from office of those whose religious opinions were at variance with the majority. The Dissenters and the Catholic were against the Church, and the Church was part of the State. It was in vain that they were willing to give any and every assurance of their j to the State as distinguished from the Church—for their interests were inseparably connected, and the distinction could not be admitted. In like manner, the Union Party are willing to give any satisfaction of their devotion to the State within its constitutional sphere, but the difficulty lies, in acknowledging an absolute supremacy—in subscribing to a declaration that Gov. Hayne is supreme head of the Church uponearth. In Mr. Locke’s Works, we find an account of the Test Oath of 1675, by a masterly hand. It runs in these words —“I do declare that it is not lawful, under any pretence whatever, to take up arms against the King—and that I do abhor that traitorous position of taking arms by his authority against ilis person, or against those who are commissioned by him, in pursuance to such commission; and I do swear that I will not at any time endeavor the alteration of the Government in Church or State.” This Oath would suit the present times without any alteration besides that of putting State for King: And the authors of our Test Oath only repeat, what the Cour

tiers of Charles the Second had previously said, that the public safety requires the Oath; and that no one should complain o. excluded by it; because no one is fit to be trusted, that is not willing to swear to truths so plain, and to principles so clear. Yet the verdict of posterity has stamped the age of Charles the Second with its lasting reprobation; and those who, upon a small scale, are now making a similar use of power, may do well to bearin mind that they are copying an example from the worst of men, and the worst of times. In looking to the Ordinance of 1833, we find that allegiance to the State is expressly declared to be inconsistent with allegiance to the United States. The obedience due to the Constitution of the United States is declared to be a subordinate duty, subject to the regulation of the Legislature, so that a citizen may actually incur punishment as a criminal for acting in obedience to the Constitution of the United States—and to crown the whole, ample provision is made, by an unlimited power, of punishing offences against allegiance, for opening those detested sources of oppression, the laws against treason, and re-enacting here the bloody tragedies of Scrogges & Jeffries, It is not wonderful that a new Oath, speaking a language unknown to our Constitution, should excite inquio Men are not to be blamed for asking what it is they are required to swear to. . But where shall they search for the meaning of allegiance, as used in this Oath? Not in the common law, nor in the Constitution, but in the Ordinance of 1838—and there they will find allegiance, explained in a sense which renders it the symbol of a party—a sense, in which it never was defined before, and which nothing but the necessity of having a conventional term to designate certain peculiar views of the Constitution, could ever have suggested. Allegiance which is absolute without being perpetual, is a perfect anomaly. Yet, the ordinance, while it makes allegiance to the State paramount to all other obligations, confines its existence to actual residence: for, I know not what else can be made of the words, “so long as "they continue citizens thereos,” unless they mean that o: begins whenever any citizen of the United States enters Carolina, and ends when he crosses the line. And what can be made of those words, that speak of “obedience to any power to whom a control over the citizens of this State, has been, or may be del egated,” unless they mean that the laws of the United States are binding, until the State interposes and set them aside? In one word, allegiance as used in the or dinance, is only another word for the right to nullify and, that such is the real intent and meaning of it, m one having a regard for his reputation, out of his ow sect or party should venture to deny—and no one wh values his character, can take this Oath, unless his min be clearly satisfied of the creed which it is intended enforce. The ordinance having thus established a party tes and authorized the Legislature to carry it into effect I suitable oaths, the next Legislature passed an act to ganize the Militia of this State; the 10th section which, provides, that every officer hereafter elected, fore entering on the duties of his office, shall take a ce tain oath. And in order to determine upon the validi of that oath, it is necessary to consider the subject in ference to the State Constitution, as well as to the Or mance. Bat the Constitution has fixed the oath of offi and the Legislature have no right, under the Consti tion, to Legislate on the subject. Their authority th must be derived from the Ordinance, or the oath is vo The supporters of the Bill are placed in this dilemm if the oath is passed in pursuance of the Ordinance, i a test oath—and, if not passed in pursuance of the dinance, it is unconstitutional. It is indifferent to

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