6

which alternative is adopted, for either way the Oath is considered as incident to the duties of the office duties bad; but, the objection to the Oath, as being contrary which must be discharged after the party is clothed with to the Constitution, is so palpable from the express pro- the office, and for the neglect of which he may be punvision, that a certain oath shall be taken by all officers ished. But if such oaths be considered as a qualifica as a constitutional qualification-the inference that notion and put on the same footing as the constitutional additional oath can be imposed for the same purpose, is oath, they cannot be supported. A contrary construcso manifest, that I shall leave this part of the case with- tion would make the constitution nugatory-and auout further comment-and proceed to consider whether thorize a latitude in relation to it, which the law does this Oath can be maintained upon the Ordinance. And not allow even in ordinary writings. So much does the we contend that it cannot. 1. When an act may work two ways, the one by an inte- that independent of the Statute of frauds, no addition law favour certainty in the construction of compacts rest, and the other by an authority, and the act is indif- can be made by parol to that which is in writing. We ferent, the law will refer it to the interest and not to the are obliged to compare great things with small, but the authority-Hobart, 159-the case of commendams-analogy is direct and obvious for the application of the Clere's case,6. Co. 291. Maundrell vs. Maundrell, 10 ves. same principles to the constitution, which is a deed of 257-Turner vs. Bradford, 3. Ruf. 354. The rule is, that the most solemn nature, and which must regulate the if the power is not referred to, the subject must be clear- whole subject-or all its provisions may be eluded. ly identified, or it will not pass by the power. But it does not clearly appear in this case, that the Legislature ture have power under the ordinance to impose an Oath But perhaps it may be contended that if the Legislaintended to pursue the ordinance. The word allegiance of absolute allegiance, they may execute the power, by is the only thing that can lead to a supposition that they enacting an Oath of qualified allegiance. In all reahad in view such an oath as the Ordinance contem-sonings ambiguity of language is a fruitful source of erplates. But the nature of allegiance to the State, is a ror-and the object of all discussions which aim at truth, controverted question, and it is on the face of the act am- is to strip off the veil of equivocal words, and to arrive biguous whether the Legislature meant a partial or para- at correct definitions of things. There are different mount allegiance. The rules which prevail in relation meanings attached to the word "allegiance to the State,' to the execution of private powers, are intended for the but qualified allegiance is one thing, and absolute allesafety of the citizen, for the sake of certainty, and to pre- giance is another thing. And the ordinance does not auvent the danger of arbitrary judgment. How much thorize the Legislature to impose an oath of qualified allemore strongly do all those reasons lead to the conclusion, giance, for it denies that the allegiance of the citizen is, or that the act in this case, should be referred to the Con- of right can be qualified. We acknowledge a qualified alstitutional inherent right of the Legislature, and not to legiance to the State, but the ordinance does not call for an extraneous and adventitious power? If it is necessa- an Oath, affirming such allegiance, but for an Oath to ry that men should be secure in their estates, and that put down the supposition of such a thing. It is no less the rule of property should be certain, how much more than absurd to say that the power to do a particular important that their rights and privileges should not be thing, may be well executed, not only by doing a different guessed and conjectured away? Respect for the Legis- thing, but by doing the very reverse. lature, should forbid us to suppose that they meant the tinction of more or less between things of different naThere is no diswords of this oath in a party sense; for, though Test tures-and in the construction of private powers, an auOaths have been the fruits of the worst of times, yet to thority to do a particular Act could never be executed, mpose a test, and to establish the principle of disfran- by doing something else. chisement in this underhand and clandestine manner, would be no license for Saltpetre, nor a contract for any A license to sell gunpowder would be a new and unexampled instance of political particular drug be complied with by the delivery of one profligacy. administered by the Legislature might even be less of the simples of which it is compounded. The Oath objectionable than one in the terms of the ordinance. But this would only show that it is not the same Oath. If the Oath in the Military Bill is not a Test Oath, it amounts to the same thing as the Oath prescribed by the Constitution, to protect and defend the Constitution of this State and of the United Staies, but it is just as far from reason to call it the Oath of the Constitution as the Oath of the Ordinance.

But here it may be said that the Act must be referred o the power contained in the ordinance, because it can ake effect in no other way. In answer to this objecion, it is sufficient to refer to the opinion of his Honor, udge Bay-he supports the Oath on the authority of he Legislature under the constitution; and there is no eason to attribute to the members of the Legislature a igher degree of legal acumen. Is it not a thousand mes better that an Act should be declared unconstituonal, than that the courts should place upon it a conruction and give it a meaning which the Legislature d not intend?

(Judge Harper. On this part of the case I would row out for your consideration that the words of the nstitution are affirmative not negative-Sheriffs have en required to take an Oath to execute the Act against ambling, and the constitutionality of such oaths has ver been drawn in question.)

When an instrument contains the complete sense of parties, there is no difference between adding to it taking away. All interpolations are equally forden, whether the words of the instrument be positive negative. In fact negative words are unnecessary en the positive expressions are clear. An estate for , is the same whether the words and no longer, be ed or not. The constitution says Sheriffs shall hold ir offices 4 years-the Legislature could not extend term to six. The Oaths alluded to may perhaps be

very cause that it is ambiguous. Is it to be endured that But in fact, this oath is doubly objectionable, for the a man shall be called on claration? Among all the abuses of power, a certain to swear to an ambiguous deenormity of the wretch who caused the laws to be propre-eminence is due to the singular wickedness and mulgated in such a way as to be purposely unintelligible. And if there was no other objection against the oath which our present rules have prescribed to be taken by honorable men, are sufficient to entitle it to the condemnation of all under pain of disfranchisement, the ambiguity and equivocation which lurk in its meaning, mankind.

In these circumstances, the duty of the Court is plain. Court is sworn to administer, favors liberty. The warThe free and generous principles of the law, which the rant which deprives the humblest citizen of his liberty. must be clear-much less can it be endured that such a sweeping disfranchisement should be sustained by a doubtful interpretation-and as the Legislature have not thought fit to refer to the Ordinance, the Court will take

the law as they find it, and if it does not conform to the constitution, declare it null and void.

Should we be so unfortunate however, as not to be supported by the Court in the preceeding grounds, we contend that even if this act be passed in pursuance of the power given by the Ordinance, it is not an execution of that power-inasmuch as the Legislature could only carry the proposed change into effect by an alteration of

the constitution.

7

land. The allegiance of the citizen, in the only sense in which the word can be tolerated in a republic, is due to the law. What idea other men may have of a law higher than the supreme law, I know not. Like the notion of the Stoics concerning Fate, it is perfectly incomprehensible.

But again, treason against the United States consists in levying war against them or adhering to their enemies. But, in the language of the law, treason and the violation of allegiance are convertible terms. Every indictment for treason, concludes contra Ligeantia sua debitum 1. H. H. 58. Fos. 183.

ment.

It will be less necessary to dilate upon this head because we have the contemporaneous exposition of the Legislature in our favor. It is unnecessary for us to contend that the convention could not alter the constitution. It is Unless a contradiction in terms, as direct as an issue sufficient for our purpose that they have not in fact done so —and all that it is necessary for us to prove is, that they of repugnance to the Constitution can be imagined, than in fact, be required,no stronger or more palpable example could not delegate their authority over the constitution (if they have it) to the Legislature. A member of the Legisla- is afforded by the ordinance, which declares that no alture cannot act by deputy-neither can the whole Legisla-legiance is due to the United States. I shall merely call lature. The reason is obvious, the trust which is reposed the attention of the Court to the decision in the cases of in them is a personal confidence. And the reason which Jansen, Williams, and The Charming Betsey, which I prevails in every case, applies in the highest degree to shall do by briefly referring to Kent's Commentaries vol. the convention collectively, which was invested with the 2. page 42. In fact the Ordinance is not only repugmost important trust. These remarks are in strict connant to the Constitution, but in direct collision with it. formity with the opinions of Judge Nott in the case of I have no inclination, nor strength to pursue the arguPinckney vs. the City Council.* It is repugnant to reaIn 1788, Mr. Madison warned the people of the son that the convention should delegate its supremacy inconsistency committed, in the old articles of confederaover the constitution to a body like the Legislature, which tion. "of endeavouring to accomplish impossibilities; to is subordinate to the constitution: If they had abolish-reconcile a partial Sovereignty in the Union, with comed the 4th article of the constitution, and left it to the plete Sovereignty in the States; to subvert a mathematLegislature to Act without restriction, the objection ical axiom, by taking away a part and letting the whole might not apply-but they have left it to the Legislature remain." But the blindness that could overlook a matheto alter the constitution or not in their discretion, which matical truth is nothing in comparison with the halluis against first principles. Again, the power of the con- cination that goes back, in 1834, to the Articles of the vention itself was limited to one year-and every tyro Confederacy for the Constitution. knows, that whatever is done under a power, is referred by the law to the principal, or to the instrument containing the power. But the Military Bill was passed after the expiration of the year, which proves to demonstration that the Act of December, 1833, could not derive its authority from the convention.

NOTE.

The IV. article was evidently designed as a bar3. But we contend in the third place, that in this par-rier against all Tests. It was by the constitution of ticular, the Convention exceeded their powers delegated 1790 that they were first removed. Even the conto them by the people. The act which called the Convention, was passed in the forms of the Constitution. The stitution of 1778 left the disabilities of Jews and Convention was therefore, a constitutional body, and it is Catholics in full force. The Oath of office in the preposterous to speak of constitutional power as unlimit- constitution is entirely misplaced if it sets no bonnds ed. As long as the distribution of power between the to Legislative power-which is clearly the end and three Departments of Government exists, there can be in aim of all constitutional instruments. But if the fact no such thing as absolute power. The only way in Legislature can annex new qualifications and new which a convention can become absolute is by usurpa- Oaths to the conditions of office, this article of the tion-their power would then be unlimited in the same constitution is without meaning or utility—the condegree in which it is unlawful. But whatever they might stitution requires every officer to be sworn to suphave done, they did not in fact, seize all power into their own hands, and having met and deliberated under port the constitution of the State and the United the authority of the acts which called them together, it States, the Act adds that he must be further sworn is too late now to deny that they were limited by its pro- to bear true allegiance to the State. The last provisions. But this question may be settled with perfect vision is neither more nor less than an amendment certainty. If this court should decide, that the Con- of the former, and if both be equally obligatory vention exceeded their power. can any one doubt that the the difference between an Act and a Constitution in Ordinance becomes immediately a dead letter. Yet if point of authority is idle and delusive. The rethe Convention was not unlimited, it is impossible to de-marks of Mr. Leigh, on a similar occasion are eny that the duty of defining allegiance, and devising qually distinguished by truth and eloquence. Test Oaths, formed no part of the subject committed to their charge. Indeed, the matter of the present dispute is so alien from the purpose of their proceedings, that it is not referred to even in the title of the Ordinance in which it is found.

Lastly. The Ordinance of March, 1833, in this particular, at least, is repugnant to the Constitution of the United States.

The Constitution, and the laws of the United States made in pursuance thereof, are the supreme law of the

* 1 Tread. 49.

"Of the doubt as to the constitutionality of this law (the Virginia Aet requiring an Oath_against duelling from all officers) the more he pondered on it, the deeper impression it had made on his mind. Our Constitution, Art. 14, provided that certain officers shall have fixed and adequate salaries and toall Ministers of the Gospel of every denomination, gether with all others holding lucrative offices, and be incapable of being elected members of either house, or the Privy Council." Now these beine

the only constitutional qualifications, the strong im- would learn to handle; weapons the more odious, plication was that there should be NO OTHER.— since though barbed and poisoned, neither strength And there would be no doubting it, but for another nor courage was requisite to wield them. Should provision of the constitution, "that Delegates and we rely on public virtue to keep us from the use Senators shall be chosen of such men as actually and extension of this system of Tests? In no age reside in, and are freeholders of the county, or du- nor clime nor Nation, had ever virtue wholly swayly qualified according to law. As to which Mr. ed the human bosom and actions; man was univerL. remarked, that these very words were plainly sally liable to be transported with passion, blinded meant to fix a qualification; otherwise the whole with folly, corrupted with vice, and yet more with passage had as well been omitted and the subject power; maddened with faction, and fired with the left entirely to Legislative discretion, whence the lust of domination: let us not flatter ourselves. We phrase duly qualified according to law, must re- were not exempt from the common lot; and although fer to some pre-existent or coeval, not future laws, the wise exposition of the Bill of Rights by the act &c. But if the words of the constitution were to establish religious freedom, might for a time sedoubtful, its spirit could not be mistaken. If the cure us from a Religious Test, a Political one, was Legislature might add one qualification they might certainly a possible, perhaps a probable, and not add many; multiply disabilities without end; dis- very remote event. Sir, I am possessed with a qualify whole districts or classes of men by perso strange delusion, if this very law in question does nal or local description, make an academical de- not appoint a Political Test. Such are the BEgree, or even a previous service in one of its own GINNINGS. The end of all these things is death. bodies a necessary qualification, and thus convert A free Constitution cannot co-exist with this danthe government into an oligarchy. If this tremen-gerous and paricidial power in the hands of the ordous power existed at all, it was boundless and untrammelled as the winds, and dissipated at once all our fond notions of a written Constitution, late the glory of American politics. The Test Laws parAicularly, were the first weapons, young oppression

dinary Legislature. I recur therefore to the fundamental principle of the Revolution, which I take to be obsta principiis, and directly submit the Constitutionality of this Law, to the judgment of the Court."