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THK CONSTITUTIO N' A N D "V 11
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YolV-XLV...
HIUBOROUGH, C;,. OCTOBER1 25,n860.
Letter from Hon; WA-Graham-
t (
k it
,. . ,( From lbs Ralegh Sentinej
. T II E TEST O AT H, v
As Qualification for 8eat iu Coiifreas, or to holJ
Of&co under tba Uoterament of tbe United1 SliUt,
It has"now become a question f practU
cal'intersst, what is to be tin operation
ami effect of au Act of Congress of July 2d,
1682, which declare that a new oath, i ne
heretofore unknown in our history, shall
be exacted of ever person ' tie ttta or pp
pointed to any office of honor or profit un-
tier the government of tbe United State
" (excepting the President) in the civil, mil
liar and naval departments, before enter
log upon the' duties or receiving the emol
ument ,ol suck office.
The oath, m Tar as regards its new fea
ture!, i in the following words:
I, ' , ! tolemnljr aear, thai I have
nrtrr elaoltriti burnt aim tfaih ibr t'luieJ
bui. ihiet I hat been a riiiaca ibrerof. ibal I bae
toluttiaiily (ir n a tiJ, ccanirnaiuv,eii't or vn
roufagiarni io perna fitgafftd n armrj b-Mj hj
tbrreto; that 1 ha nritber soght aor jiJ n r
ailrmj lrti lo etneiM lb fartrlion 'of ant ffi-c liai
vttflerat aiiihoiilf. er prcViiiird blho't't in
b Willi: t Ibe I'hiJ Oi !; Hml J tu yet -t 1 1
rj vJitiitary opi'Of i lo any prtu-nJtd (jint-Bi'ni.
aulburitt, rf of (J nttitulton ithm ie -J
'ea .ii vf ii!i(iifl tbr trio, Ac.
1 a hat 1 think fir.not bt denied,
thai NmUi CiroiiPa was th leb i e
t! euinmetit i.f the I'nitrd Staua I uHoie u.
ail he '; engaged in the late ar. Vri
it the ;mi iI this act be lileraliv in
tffprMed wiil rnlorced, il Will vneiale a
dialiaiictiiat fffiit of lour f.fil.a .cf her tu.
ia p) wt.n io the extent of eicUdie
them iittA at in t'pi'jrcis, or hoMio
anv, the Ui-i Federal oilier, he cocirib
hied to thi Ci federate armies one hon
ored an J :rutv thnoaand men Of ih-e
ninrtt .tmi iMuand were volontrrrs. No
iaui5, it i premel, could jtu'ifj anv
i( lhrr it lakiu lhi oath; anil of the re-inW-.U
r f.iere aie douhilr nit a few, who,
though tbjecu uf intoluntarv conscrip
liim, Mii' (ioiie hir duij like men,
woa'.d ii' t IrrI afe in rnikirg the denial
rntttracrd in it prutiiiin.
To the fjUrtii'm atunn the men, t
enr fl.ter uf her chiarj, whoe attfiraj
r mul control the deatmiea of the htaie
for at lat one jm'iatitin, n.av be added
hutilfrl. if nt tlaand,f others, mtnc
ler of hti Conveoiion in 1861, tf the I,e
yia'atvres ol 18C0,.'62, Cit of. three sue
ea e Southern Congrce and itheren
I 'vees and private ciliienn, included in
e aiue condetnastion. It may reason- j
uif tw oppieil that a nt Icis etenive
pMuciiptiou will attend enlorreniVnt
l thU act u cm tle people of other States!
Whm cnnirqnencrs u hijhU penal and
lerogitoi t arr tl us l be viited on whole
iommaiuMra, when obviou!r the ternnant
etcepted mav not in in anv localities afford
f eront flr! tor rrpieaenlativef in Con
'e oi to K-rfortii otefullv official fane
iin, when tjiuuand of individuals who
never ihnujht of ramaning fr fUce or
ireferment will fi-el themaelves agrieted
in being made subjects of eulain, it be
c ine a matter of smous concern whether
Ce p..lrjr uf act aJ.ovild ti be aban
doneil bv a re peal and if not, hethr it
(an Uf the tet t contitntiuul rrutinv,
Mr, n.iitaaml Go, 1'irtpnnt of Virginia,
lac in publihrl Irttrt each evpr'ed
the br liel that (nnrea will adhere to this
law, and lint n.. Senator or, Hrpietctitatit e
will be. admitted unlrii h can late the
oadi, bat tint all oihers will be excluded.
vV h4i "rft .J rtfntinftin are in 'the
iKHrt!Mi nf thine ditiiiuilSed 2f.t:e.
M.en, in rr'rrence to the nr.biW? adon of
. a t a
a puuue own nhue members !iv ncirr
vtt convened, ur whcthcr.the; apeak.mete
If from conjecture, we are nut adviaed.
The Preaidenf f the United States in rt
cpone, ta an inqtiirj on the same'fopicre
plies, through his AUofnev (lenertl, that
he has no more ineaoi nf knowing what
Curjress may do in regard to that oalli
thvh an other citixea, but it It hit tamest
,ih that lojal and frue men, to whom lio
- oNjection can be widemaj be elected to
Congreit. Unitin most corditll? in this
. f tinu ityUd.'4 . '
des'.re of the President, and adopNnj his
appropriate'mndetif dealing with this grave'
3uestion whicirius,6een as '"(? but little
iscussed, I pffUmrot'tii, prrdirt with
cptiftdeBce, what actifn Ongres mav take
in regard to it. I can onl y judge of what
tbejr will dn from what I believe in reason
and justice the? 'ought' to do.' I cannot
suppose thai after sther surrender ,)ol vthe
Southern armies,, lhernk. n
knowledgement uf deleat and of the failure
of the revolution, and after the steps that
have been taken to restore not nnljr con
stitutional but kind rrlaiions' between the
State, latelj in , fcbetli and the Federal
government, that anj feejiRg of vindictive
ness or revenge, will sway th determina
tions of either bianch of Congress; f
If then it Can be ilemohitraied '.hat the
ct under consideration has served its pur
pose, is no longer nrcesVarjr or jut, and is
withal in palpable cutflict, with the provi
sions of the Canstitatioo.Ml assume that
there will be no heiation In its repeal r
abandonment'. There wer; doubtless rn'a
ni'acts of Congress and othertneakurea
dopted by earh of the beligereiit wh,ile
the war raged, to which il.e Latin adage
may be applied, Furor viinistrat armu
meaaurcs adopted, in the he't of revolu
tiooaiy phrensy as means of asgresaive hos
tility, and supposed safety Ynd necessity,
for the time Icing, bot listing n tiew to
a state of peace. Of this cUm was the act
It bears date in Jlv. 1662.
hen there tas no member itmig or ex
pected to take a seat in either JIoue fram
all the Snutl ern States; immediately after
the dvltat ol the etpedition id Ljoneral Mc
C'leibn in a seven days battle in the ti
cinitr of Hichnmnd ; at a period the most
diatrou to the aroia vf ibe I'niteil State
of tliVwITole war; uhen the mott strineni
ajpl.ance may well have been deemed in
difenab!e ta guard aant treachery in
public Otlieem loth i f the army and navv,
and evrn in the citd service ; and it can-
rot be rea-onally' iu'ened that it waa de
signed ti be applied after the ciMidaMon
of peace lo ,eion who had returned to
their loyally and duty, and had sealed
their fidelity with a n" path of allegiance
or amnesty s a punishment for iluir of
fru.e fr taking part in the war. This would
be tweontert a pn cautionary ami prevent
ive expedient of war into a tirw, unuual
and setere puniUient in time of peace;
and that in a cue where the condemn 4ti:i
is without trial, and the pjrtv is compell
ed to give evidence hinself., The
act according t tho excloive operation
propoied to be given ta it, i nwthing more
tr lc than a deerre 'of dUab'tUtv ever
ihcrea'tcr 'to lioM'nfiice .under the g'vent
mentof the United Stat, agninst any c i t
lcn, J t. wi n ever tolutiUniy bt
iigiHot the United SUte;
that there will be any serious attempt to
g'ne to a purely precautionary and tempo
rary measure, a punitory ind permanent
effect.' tTuhthis course of reasoning there
will be a more j-eadyiissrnt .when it is re
membered how sweeping and indiscrimi
nate will be .thevfrvacrption entailed by
the contrary deciMonKerebi acjng:nealy all
of the ttalentintel,lige.nce,, tnrgyfpint
and 'nanhood jwholelistrictv nlcountryi
and this among tat.eand people, many of
whnm never .dened Jheltr'ue'theorr of the
c o n k t j t u tj o n , , , !i a t ( i ta cr ea t ,r a a go ve r n m e n t
not a mere cnmpact,,were "opposed to se
cession in the out'eet, and are of undoubt
ed loyalty Vow ; ,but ,became in vol ved In
the support f the war by necessities which
thev belioved themselrea nnahU tn' irnn.
trol. but being in, bore themselves as brave
soldiers and troe men.
Nnr can assent to the recommendation
of Messrs. Bolts and Pierpont, endorsed
wy some hi me papers or mis atate, tna
we hnull take it for granted hat a ma
jority of Congress will insist on libera
enfoicemnit of, this act and avoid the dis
C,us-ion of the: question by jhe election o
representatie;i who can take he oath wi(h
out a violation ot conaience; no matter
how contrary to he. popular choice or unfit
for repreentative duties. ..Representative
goternment implies fit representation! The
ship ol Mite never sails under tury-maMS
Kerry representative no matter from what
State or district is in the halls of Congress
the peer nt every other; ana to bo useful
and respectable -each should feel and know
that he is there bv no spurious or doubt fu
title, and in sympathy and accord with a
real constituency according to the course
v iuw vvuriiiuin'iii audi ituiaiua in
changed by the war. a
l.ie war was mace I t it conservation;
and its line and plummet should determine
cverT step iu uur renewed union. A wie
policy also suggests, th.it it is no time to
weaken the public counsels when mea
uresare tobr grappled w ith as momentous
as any in our hutory. Is it expected that
in the next two or six year (theid are the
terms of Lonsresional service) and for au
indefinite, period beyond, that the ,whole
Jegtlatiti:i ol Uongn-ss is to be shaped by
the leading minus of one, section, while
trrse ol ill- Mth-r are deb tried fiotn cn-
S iltatior.. and the pace which ty the nop
ular confidence thev would fill, are uccu-
pieu ur memt.er who are onlv present "to
iee prucyed'ngs or is it noi desirable that
' every section altooM contribute to the com-
moft stock of wisdom anl knowledge for
the interests and honor of a common coon
trv? . - ,
The Southern members all told, are but
about mielourt'i of the Houe of lie pre
entlitf, and after the pjrs.U-rial pro
re nru
who Jus cess throug'i which lhoe Sluts are r.o.v
voUnUrily given aid, cointei4nee..couit- being pasetl a ' consequeuce ol' the war.
el or enjrouragcinrnt. ta pi-riM in anntd j t!ere i- little .danger of the tetun of crn
hostility thereto; 3rd, , who cter suitt, 1 individual me:n'er histile to nc Ctnsti
accrptrd or ait m:ud to exercise the func-i tuti in a i l th Uninn aid a trie rco"iPi'f
tivtia ol anv office whatevrr under any au
thorny or pretended aut i iiity m" hostility
m the United Slates 4th, who has yield
ed a voluntary supput to any pretended
xoteinmeiit, authority, puwer nr ronstitu
(ion within the United State hostile or in
io.ical thereto; and tie ot)i is ifi.Jtmi
onlv a a means of com nulling Vie iiartt to
dicoter hit own goifl bv a reU-at a guilt j
ineiit in feeling uJ int?rco'irp. A tc
gvernmnt should never frget tfiat mag
nanimity in victory is true jodicy ; ' that
tiieiv is no surer method of miig men
your eninies than to tieat. t'l m as if ym
tonidered them such; and t!ut nhni a
quirrel is really settled, mu'iiil c i?i lence
ami kind icss atTird tlicto.i!t ss trance of
l.iii(ig l.rfnno . ,
hie otaincaiii ot be wah-d out by a I pass over as -not worth- of refutation
PiesUlcnt.al .paidun, which, atvordng io th r- irk soin-ttiues heard, t'uivou are
the constitution ai d the law Vlratises ih under the p iwer of the North, and must
otftiuler in all ce. except where he l.asi submit to whitevcr appear to be demand
; ta ....
been convicted by iinpekchiueiil. An ar
guraent is liatdly r.ciessaiy tu pn to that
exclusion from the right to hold office i a
iiumsonirnt .under our svateut of rovein
men!, since " rcmoal fioin ofllce and dis
qualification to hold and eijojf any' office
of honor, trust or pioSt,' i the penalty
prescribed iu the great offences triable by
impeachment. Now I cannot believe, when
Una act is viewed in its true light, and it
perceived that the policy which dictated
it has passed away, that Congress or an
other authority of ;he government will fail
to yield its assent, to so obvious a maxim
as that when tho reason of the law ceases,
the law itself should ceare to operate; or
cd, or your noncompliance will be coast I
errd as roniuitMcyi .This is to suppose
that other motives thin reason, justice and
kindness will sway the judgment of a ma
jority of Congress", in wnich I do not agree.
But I further submit that either House
ol Congress will decline at enforcement of
this law when they come to test it by the
constitution.' 'This requires as an oath of
fidelity to the government M That Senators
and .Representatives and members of the
several State Legislature's, and. all other
Executive and Judicial officers both of 'he
Uoitel, States and of the several States,
shall be bound by oath or aflirm.il ion to
support the constitution." " Anil the quel-
' t i ' Hi i. 1 . c ... .
tion at once presents itself whether aor
other oath of fidelity, can, be Required ac
cording to the maxim, expressurn Mtf Ve
tare taciturn. The oath baingVjhas pre
scribesl b the.ceDstitution, can Congress
add to it or dispense with, it or modify it ?
An eminent Judge in a'judiciaj opinWde
clarcs that f. sometimes affirmative words
necessarily imply a negative of what is not
affirmed as strongly as if expressed." vThe
constitution of North. Carolina; directs th
Judges of the Sapreme Court to be elected
by the Legislature. ;Upon the esfablish
nient.of. that court, in I9I8, ,the law, pro
vided that in every case .where a Judge of
the court had been concerned, as 1 counsel
in any cause previous to Jiis election, the
HiiTernor. should, deiigqafe SQme Jode pf
the Superior; Courts ,to sit in hVstead in
such cause. But after, the lapse of vine or
two .terms in hicb the law, was allowed
operation, the objection was. taken and sus
tained, that the affirmative prescription of
a mode of appointment in the. constitution
negatived any other mode of appointment.
' Test oaths are a, common esnrf, tq 1 revo
lutions. The conMitut'in":of. South Caro
liaa in the days of her Ptnkneys an'd'p.:t
ledges, hsd.req'iirrdhat any person cii 's
en or app-iinted t .oface before entering
on its duties should take oath atTirming that
he w ould, " to the,b st o his abilities dis
charge'the, dunes thereof,' and. preserve,
protect and defend the constitution of 'this
State and or the United States." f
Her nullification Convention 'in , 1633,
adopted the theory " that the !.Vgiance of
the citizens of thfs.Slate, whilv they con
tinue such, is due to the said Sa?ej nd o
bedience onland oot allegiance iBdue bv
them to any other power 4f,.-.tithority to
whom I control over them ffas" been dele
gated by the said State," and un ordinance
empowered the legislature to provide for
the administration of. oaths to Hie citizen
and officers f the State, " binding them to
the observance of such alle'unfe, aud ab
juring all other allegiance." And the Le
gislature, to carry out the theory, enacted,
" that every officer of .militia hereafter e
lectd, before he enters od tKe "duties jof
his office Khali, in addition to the uli eovr
required by law, tke and subscribe' the
following oath : I - do swear that
I will be hithful, and true allegiance bear
to the State of South Carolina., Mr. Mc
C rady was elected a Lieutenant of militia.
ami titi"; rciueu a commission unless he
wouM tike this oath, brought his writ cf
mvt lamus to compel its delivery, because
the req iirf ment of ihe oath was unconsti
tutional and t oid being incompatible with
tbe coc;iuit:on of the State above recited.
a writ wj;n Wat; ot the United Mites.
And JjiUi-s Johnson and 0Nea1,.(Uniou
men, lUrper, nullinrr, slissenting,) held
with the applicant on both points. Th
actof the Legislature was declared .vrid
uj on thi gn uiol, that it undertook to add
to the 01th of fidelity to the government of
the State preset ibed by the constitution.
Jhis the .Legislature could not do, be
cause the prescription in the organic law
of an onth of fidelity to government was
equivalent to forbidding any other oath of
tnat na'ure, or of adding to or varying it:
tht unh ti t Legislature hvuhl and usual!
did, in addition to this, tequire an oath for
the raithluJ performance of the duto;i ofof
fice.. I hev also decided that the ordinance
of the Contention (it befng a body of lim
ited powers called only to act on the rev
enue laws of the United States,) gave no
authority to the Lrgishtuie to exact the
oath refused by the applicant. So that the
coniruission was oirecieu 10 oe issueu 10
McCradr without taking the oath impon-d
by the law. , Can human ingenuity discov
er any difference between this case and
that presented unfler the law oi tongreftr
Can Conztess add to or detract from the
oath tn support the constitution of the Lot-
ted states any more than a me i.rgi na
ture in regard to that prescribed by the
Constitution of the Sta'? , V
. The Legislature of Virginia by act onco
rc'iired her public functioturies, extend
ing to adtocates at the bar, f take an o.ih
that they had not engaged atd would not
engage in'an dajeli ilr courts proceed-