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ARGUMENT

OF

JAMES L. PETIGRU, ESQ.

DELIVERED BEFORE THE

COURT OF APPEALS, AT CHARLESTON,

ON THE

CONSTITUTIONALITY OF AN ACT OF THE Inovas como

PASSED 19TH DECEMBER, 1833.

ENTITLED

AN ACT TO PROVIDE FOR THE MILITARY ORGANIZATION OF THIS STATE.

Charleston:
PUBLISHED BY J. S. BURGES.

1834.

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IN THE COURT OF APPEALS.

MONDAY, MARCH 31, 1834.

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The members of the Legislature, who were elected on giance, and to provide the proper punishment for such the 5th of October, 1832, at an extra session, ou the 26th violation. day of October, passed an Act to provide for the calling By an Act passed on the 19th day of December, 1833, of a Convention of the People of this State, the Pream- entiiled “An Act to provide for the Military organizable and first Clause of wbich are as follows:

tion of this State," it was enacted as follows:- In ad. Whereas, the Congress of the United States hath, on dition to the oaths now required by law, every officer of divers occasions, enactd laws laying duties and imposts the Militia, hereafter elected, shali, before he enters on for the purpose of encouraging and

protecting domestic the duties of his office, take and subscribe, before some or American manufactures, and for other unwarrantable person authorized by law to administer oaths, the followpurposes; which laws, in the opinion of the good people ing oath:-'1, A. B., do solemnly swear, (or affirm, as of this Stāte, and the Legislature thereof, are unauthor. the case may be) that I will be faithful and true alleized by the Constitution of the United States, and are an giance bear to the State of South-Carolina.'” infringement of the rights reserved to the States respec On the 28th of February 1834, Edward M'Crady was tively, and operate to the grievous injury and oppression elected Lieutenant of the Washington Light Infantry; a of the citizens of South-Carolina. And whereas, to the military corps in the city of Charleston, and applied for Stale assembled in Convention, it belongs to determine his cominiosion, which Colonel Hunt, the commanding of the character of such acts, as well as the nature and ex- ficer of the Regiment, refused to grant, unless he would tent of the evil, and the mode and measure of redress: take the above oath; which he refused to do,and applied to

Be it therefore enacted, by the Senate and House Judge Bay, for a rule to shew cause why a Writ of Manof Representatives of the state of South-Carolina, damus should not issue, to require the said Colonel Hunt now met and sitting in General Assembly, and it is to deliver to the plaintiff his commission. hereby ordained by the authority of the same, That His Honor, upon hearing the case, dismissed the rule; a Convention of the People of the said State, shall be as- and from his judgment the Relator appeals, and moves sembled at Columbia, on the third Monday in Novem- the Court of Appeals to reverse the order made by Judge ber next, then and there to take into consideration the Bay, and to make the rule absolute, and takes in support several Acts of the Congress of the United States, im- ofhis motion the following grounds: posing duties on foreign inports for the protection of do First, 'That it is a violation of the Constitution of the mestic manufactures, and for other unauthorized objects; State, to require the appellant to take the oath containto determine on the character thereof, and to devise the ed in the Military Bill. Because the 4th article of the means of redress; and further, in like manner, to take Constitution declares, that “ All persons who shall be into consideration such acts of the said Congress laying chosen or appointed to any office of profit or trust, before duties on imports, as may be passed in amendment of, or entering on the execution thereof, shall take the followsubstitution for, the act or acts aforesaid; and also, all ing oath:-"I do swear or affirm, that I am duly qualiother laws and acts of the Government of the United lied, accoriling to the constitution of this State, to ex. States, which shall be pissed or done, for the purpose of ercise the office to which I have been appointed, and more effectually executing and enforcing the same. will, to the best of my abilities, discharge the duties

The Conventionat Columbia, on the 18th March, 1833, thereof, and preserve, protect and defend the constitupassed an Ordinance, entitled An Ordinance to nullify lion of this state, and of the United States." And that an Act of the Congress of the United States, entitled so much of the Military Bill as goes to add to or alter “An Act further to provide for the collection of duties the foregoing oath, or to inpose any other oath of office, 'on imports,” commonly called the Force Bili, containing is, therefore, unconstitutional and void. a separate clause in the following words:-We do fur Secondly, That the authority of the Legislature to ther ordain and declare, that the allegiance of the citi- enact the oath contained in the Military Bill, cannot be zens of this State, while they continue such, is due to the derived from the Ordinance of 1833, for the following said State; and that obedience only, and not allegiance, reasons: is due by them to any other power or authority, to whom 1. That the terms of the Ordinance are not pursued, a control over them has been, or may be delegated by nor its authority referred to, in tlre enactment of the said the State; and that the General Assembly of the said oath; nor does it appear, with certainty, that the oath State, is hereby empowered, from time to time, when contained in the Military Bill, is an oath' binding the cithey may deem it proper, to provide for the administra- tizen to the observance of such allegiance as the Ordition to the citizens and officers of the State, or such of nance defines. the said officers as they may think fit, of suitable oathe 2. Because the Conrention did not authorize, and in or affirmations, binding thein to the observance of such fact could not authorize, the Legislature to overrule the allegiance, and abjuring all other allegiance; and also Constitution, by changing one of its articles, without to define what shall amount to a violation of their alle-conforming to the rule, bę which all amen:\ments to the

Constitution must take place. And for this proposi-, we must look for its proper signification. Fortunately tion, the appellant has the authority of the same Legis- we are at no loss for the most ample information conlature, who, by bringing in and passing a Bill to change cerning the character of allegiance in the monarchy the Constitution in this behalf, have confirmed and rati- which is its native soil. In Calvin's case 7 Co 1., it fled this construction.

forms the subject of one of the most curious and elabo3. Because the Convention, in undertaking to define rate arguments among the judicial discussions of that peallegiance, and to establish a Test Oath, exceeded their riod. It is called the Bond of Subjection between the powers, as those matters are not within the objects for Prince and his subject; the tie by which the monarch which they were called.

holds his vassal, and by which he draws him from the 4. Because the Ordinance itself is clearly repugnant remotest corner to which lie can retreat. chain which to the Constitution of the United States, and therefore none but the royal hand can hold, and which the subdoll and void.

ject can never shake off. It is the same in effect with

liege homage, an abject ceremony which furnishes a MR. PETIGRU'S ARGUMENT. striking illustration of the feudal origin of allegiance, A case that has excited so deeply the attention of the and the profound subjection which it implies. “For community, will no doubt receive the most serious consi- when the tenant shall make homage to his Lord, he shall deration of this Court. To say that it is a Consitution- be ungirt and his head uncovered, and his Lord shall sit, al question, is enough to make it understood that the and the tenant shall kneel before him on both his knees, subject is one of the highest concern and inter- and hold his hands jointly together between the hands of est; for a question of constitutional law exceeds in his Lord, and shall say thus, " I become your man from importance the discussion of a private right, as much as this day forward of life and limb, and of earthly worship, a general rule is of more importance than a particular and unto you shall be true and faithful.” And then the decision. And if there is any thing of which we may be Lord so sitting shall kiss him." In simple homage, justly proud as an improvement in the science of Go- there is a reservation; as thus,"saving the faith, I owe vernment, it is that American innovation, by which the our Sovereign Lord the King.". But in liege homage, Judiciary is made co-ordinate with the Legislature, and which differs only in this, that it is performed to none but the injured are authorized to appeal from the Law to the the Sovereign, there is no such saving. (Co. Lit. 64b. Constitution. Nor can any case be imagined more wor- 1 H. H. 65.) From Calvin's case and the common law thy of the exercise of this high and solemn duty, of the authorities, we learn that the qualities of allegiance, are: Judiciary than this, in which the decision must affect, that it is natural, universal and perpetual—and due exnot merely the freedom of an individual, but the right of clusively to the King in his natural person. So intiinany thousands of the people of this country to be ac-mately is the original idea of allegiance connected with counted free-in which not the inheritance of a few acres royaliy, that it is said by Lord Coke to belong to the only, but the birthright and portion of every man who King as an attribute proprium quarto modo—that is does not subscribe to the prevailing creed, are at stake. to the King, and to the King always : to every King, The parties to the Record are Mr. M'Crady and Colonel and to none but the King—omni solo semper7 Co. Hunt-and the office about which the dispute arises is 12a. one of minor importance; an office, not only of small ac In strict propriety of language, allegiance to the State, count in itself, but in the eyes of the parties perfectly in-like citizen King, 'is nothing more than a misnomer. significant, in comparison with the principles which are No phrase can be less apt to express the duty of a citi. involved. Between the parties to the Record there is in zen, whose obedience belongs to the law, than a word fact no dispute. Col. Hunt consents to make the ques- which implies most strongly and emphatically, reverence tion for the sake of all who have an interest in common and subjection to the person of the sovereign. We can with the plaintiff : and Mr. M'Crady pursues his right easily conceive why our ancestors excluded from the in behalf of thousands of his fellow citizens, for the pur- Constitution of the United States, as well as from that pose of testing the validity of a law, which incapacitates of South-Carolina, a word connected with so many lietthena from office. This civil incapacity with which we erogeneous asscciations as allegiance; the wonder is that are menaced, extends not merely to offices in the militia the noble example of plain dealing and simplicity which but to all places of power and trust under the authority of they have left us, should be lost on their successors; and the State; and not to the right of holding office merely, that we should see at the present day, such an anxiety but to every constitutional and civil privilege. For by on the part of some people to put on the cast off' finery of the Ordinance of 1833, the principle of disfranchise- the Royal Livery. ment is adopted in the broadest terms of tyranny-and There is no doubt, however, that when terms which though the disability in question applies in this instance express the relation between King and Subject, are to military office only, there is nothing to prevent the ex- adopted into the laws of a Republic, they must be retension of the principle to all civil rights and immunities ceived in new sense, with a modification of meaning whatever.

corresponding to the altered character of the GovernThe Oath which Mr. M'Crady is required to take is in ment.' And so in fact we find the term allegiance used the following terms : “I swear that I will be faithful and in some of the States. Neither do we deny that the true allegiance bear to the State of South-Carolina," State may require an Oath of Allegiance from her citi. and he refuses to take it, because he acknowledges alle- zens. At least there is as much propriety in speaking giance to the United States, as well as to the State of S. of allegiance to the State, as of allegiauce to the UniCarolina, and the authors of this oath, by their authorita- ted States. No one supposes that the government of the tive construction, have declared that allegiance to the United States is supreme, beyond the sphere plainly deStae, is and shall be equivalent to abjuration of allegi- fined by the constitution : Neither does any one deny ance to the United Staies. The terms of the Oath it. that the State is supreme within its proper sphere of acself may not suggest the objection. The text may be tion. As to the boundaries of power between the Fed. ambiguous, but the commentary removes all doubt. Be-eral anthorities and the State authorities, men have dis. hold then the alternative to disfranchisement, which is puted from the dawn of the constitution to the present submitted to the citizen—to subscribe to a party test, or day: and from the assumption of the State delts, in 1790, to swallow an ambiguous oath.

to the last debate on the incorporation of the Bank of the Allegiance is derived froin the barbarous latin word United States, the acts of the General Government have ligeantiamit is peculiar to the English law, and there been assailed and defended on the same grounds; and

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truth requires us to add, that South Carolina has been tiers of Charles the Second had previously said, that on every side of the same question. But that the States, public safety requires the Oath; and that no one sho in the language of Mr. Madison, retaiu a residuary and complain of being excluded by it; because no one i inviolable sovereignty over all objects, not embraced to be trusted, that is not willing to swear to truth within the powers of the General Government, has nev- plain, and to principles so clear. Yet the verdict of er been denied, amidst the changes and contentions of terity has stamped the age of Charles the Second party; at least not by any men or set of men, considera- its lasting reprobation; and those who, upon a sn ble enough to obtain for their opinions any general at- scale, are now making a similar use of power, may tention. If the oath in question, therefore, stood alone well to bear in mind that they are copying an exam or upon the words of the Military Bill only, we should, from the worst of men, and the worst of times. without hesitation, construe the obligation which it im In looking to the Ordinance of 1833, we find that poses, as an oath of fidelity to the State, commensurate legiance to the State is expressly declared to be inc with its reserved sovereignty, and consistent with an sistent with allegiance to ihe United States. The equal fidelity to the United States, within the sphere of dience due to the Constitution of the United State the constitution. But if the State authorities have set declared to be a subordinate duty, subject to the reg their own definition on this term “allegiance," we are tion of the Legislature, so that a citizen may actu not at liberty, in the oath under consideration, 'to con- incur punishment as a criminal for acting in obedie strue it in any other way; and no honest man can take to the Constitution of the United States and to cro the oath in any other sense than that which it would bear the whole, ample provision is made, by an unlimi if this word was omitted, and the corresponding terms of power, of punishing offences against allegiance, for op the definition inserted in its place. Now the fact is, ing those detested sources of oppression, the laws that the authors of this measure have set a definition on gainst treason, and re-enacting liere the bloody traged the word allegiance, which makes it to all intents and of Scrogges & Jeffries. purposes, a term of art, to express certain controverted It is not wonderful that a new Oath, speaking a opinions concerning the nature of the constitution of the guage unknown to our Constitution, should excite in United States, and renders the oath in question a com ry. Men are not to be blamed for asking what it plete criterion of party-in one word, a Test Oath. they are required to swear to.

But where shall t There is, I apprehend, a mistake that some people are very search for the meaning of allegiance, as used in liable to fall into, in speaking on this subject, by con- Oath? Not in the common law, nor in the Constituti founding test oaths with religious persecution; for many but in the Ordinance of 1833—and there they will persons seem to imagine that the new oath is not a test | allegiance, explained in a sense which renders it oath, because it does not interfere with religious liberty. symbol of a party-a sense, in which it never was But in fact, all test oaths are political, not religious, in fined before, and which nothing but the necessity of b their objects; and if Test Acts do sometimes put the ing a conventional term to designate certain pecu principle of exclusion on religious opinions, it is not a- views of the Constitution, could ever have suggest gainst such opinions as offensive to Heaven, but as dan- Allegiance which is absolute without being perpetual gerous to the state that they are directed. In the age of a perfect anomaly. Yet, the ordinance, while it ma persecution, a sincere but misguided zeal for the honor allegiance to the State Paramount to all other obli of God and for the salvation of man, led to the punish- tions, confines its existence to actual residence: for ment of the heretic, whether he outwardly conformed or know not what else can be made of the words, “so! openly dissented. But Test Oaths were the growth of as "they continue citizens thereof,” unless they m a later age; they were not exacted pro salute animi- that allegiance begins whenever any citizen of the U for the spiritual welfare of people in office; but had their ted States enters Carolina, and ends when he cros rise, as well as whaterer justification was ever attempt the line. And what can be made of those words, t ed of them, in considerations of public safety. The Un- speak of "obedience to any power to whom a con ion of Church and State, and the King's supremacy, over the citizens of this State, has been, or may be sufficiently account for the connexion, real or supposed, egated," unless they mean that the laws of the Uni between the security of the State and the exclusion from States are binding, until the State interposes and office of those whose religious opinions were at variance them aside? In one word, allegiance as used in the with the majority. The Dissenters and the Catholic dinance, is only another word for the right to nulli were against the Church, and the Church was part of the and, that such is the real intent and meaning of it, State. It was in vain that hey were willing to give any one having a regard for his reputation, out of his and every assurance of their fidelity to the State as dis- sect or party should venture to deny—and no one v tinguished from the Church—for their interests were in- values his character, can take this Oath, unless his m separably connected, and the distinction could not be ad- be clearly satisfied of the creed which it is intended mitted. In like manner, the Union Party are willing to enforce. give any satisfaction of their devotion to the State within The ordinance having thus established a party tits constitutional sphere, but the difficulty lies in ac- and authorized the Legislature to carry it into effect knowledging an absolute supremacy-in subscribing to suitable oaths, the next Legislature passed an act to a declaration that Gov. Hayne is supreme head of the ganize the Militia of this State; the 10th section Church uponearth.

which, provides, that every officer hereafter elected, In Mr. Locke's Works, we find an account of the Test fore entering on the duties of bis office, shall take a Oath of 1675, by a masterly band. It runs in these words tain oath. And in order to determine upon the valid "I do declare that it is not lawful, under any pretence of that oath, it is necessary to consider the subject in whatever, to take up arms against the King and that ference to the State Constitution, as well as to the Or I do abhor that traitorous position of taking arms by his nance. Bat the Constitution has fixed the oath of off authority against his person, or against those who are and the Legislature have no right, under the Const commissioned by him, in pursuance to such commission; tion, to Legislate on the subject. Their authority th and I do swear that I will not at any time endeavor the al musí be derived from the Ordivance, or the oath is ve teration of the Government in Church or State.” This The supporters of the Bill are placed in this dilemn Qath would suit the present times without any altera- if the oath is passed in pursuance of the Ordinance, i tion besides that of putting State for King: And the a test oath and, if not passed in pursuance of the authors of our Test Dath only repeat, what the Cour. | dinance, it is unconstitutional. It is indifferent to

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