The State ex relatione Ed. M'Cready v. B. F. Hunt, Col. 16th Regt. So. Ca. Militia; The State ex relatione James M'Daniel v. Thos. M'Meekin, Brig. Gen. 6th Brigade So. Ca. Militia, 2 Hill 1

The Court took time to consider, and afterwards the Judg. es delivered their opiuions seriatim. O’Neall, J. In these cases, we have been called on to discharge the high trust committed to us by the Slate, of deciding upon the constitutionality of the acts of the Legislature.

This is at all times a duty to be discharged cautiously and tenderly ; but, at the same time, independently and fearlessly.— At a time like the present, when the waves of popular fury and party strife are continually breaking upon the very walls of the Temple of Justice, it is a duty not to be sought; but, at the same time, when it comes unbidden, it is not to be shun. ed. I think it was' the remark of Lord Mansfield, that a popularity which had to be followed, was not worth the pursuit;' and that it was only worth having when it followed us.

This is true, and we know from experience, that a popularity which is based on caprice, and not merit, is like the butterfly of one of our brightest summer days; it m'ay have all the glories of light and life for a time, but its time is but a day, and it is gone forever, never to be resumed. On the other hand, a popularity which results from a fearless discharge of duty in a time of peril, is like the sun; it may be veiled and obscured for a time by clouds; but it will at last dispel them, and shine the more brightly from its past obscuration.

These remarks, I may be told, are the mere flourish of the rhetorician, and not suited to the sober dignity of the Bench, where words should be weighed in the balances.

I shall not dispute about the merit or propriety of these prefatory remarks : if they are so expressed as to be understood, they will have answered my purpose; for I trust, that without any impropriety I may be allowed to refer to them, as the true exponents of an honest heart and firm purpose; if error should be its accompaniment in the discharge of this present duty, it will arise from a defect of judgment and understanding, and not from any want of patriotic devotion to that State, which gave birth to, and to that people, who have showered favors, honors and benefits upon me.

Having said this much as introductory to that legal judgment which I have formed, I shall proceed to state the reasons which have led me to conclude, that the oath contained in, and prescribed by the act of the 19th December, 1833, entitled “An act to provide for the Military Organization of this State,” is unconstitutional. It is first necessary to understand, what is Allegiance in these United States, and to whom it is due. I admit, that in the feudal system it arose out of the tenure by which land was holden from the Lord paramount.

It was the duty of the vassal or liege, to render all the services which might be incident to the estate: they were all summed up in fidelity to the person of the sovereign or King. This was the bond which never could be broken, because it took its origin in the connexion which originally existed between the serf and the soil of his birth. It was hence that allegiance was held to be perpetual: it was the invisible cord which held the subject to the King, and drew him from every portion of the habitable globe to the feet of his master.

Is this the sense in which republicans of the present day desire allegiance to be understood 1 Do we owe a perpetual allegiance to South Carolina, because we happen to be born within her limits ? If we leave her and seek quiet and repose in the wilderness of the New World, do we still owe fidelity to her? and has she the right to drag us from the caves and forests of the far west, even beyond the Rocky Mountains, and compel us to strike in her quarrel, because she bids vs?

If this be the sense in which it is now to be understood, it is very different from the sense in which it was understood by the care-worn pilgrims of Liberty, who brought their offerings to the Temple of the Constitutions of the United States and this State. Because the word allegiance originated out of feudal tenures, is no reason why we should give it the- precise feudal meaning.

Many a noble river may be traced back to some marsh, from which the water scarcely creeps: so, many a noble institution of liberty may be traced, through successive. ages, to some rude notion of individual freedom and protection, bearing, perhaps, no resemblance to that now in use. This is the case with allegiance, as it will, I trust, be seen in the progress of my efforts, humble as they may be, to shed light on this perplexed question. The history of England shews that the word is not even understood in her unchanging government of King, Lords and Commons, m the sense in which it originally was.

In the days of the Conqueror and his descendants and successors, to the time of Charles I, it was the tie of fidelity and obedience to the person of the King. May I be permitted here to say, it was the fidelity and obedience forced upon the Saxon subjects of the Conquoror at the point of the sword, and rivetted upon them as manacles and chains, by the Norman King and his Barons? One of its fruits then was to bid and compel the free spirit of the Saxon to meditate in darkness at the sound of the curfew. Do we claim our notions of allegiance in this free country, as arising from this age-of slavery ?

I would as soon say that darkness was the parent of light, because the latter merges from the former. In the revolution which sent Charles to the scaffold, and his sons and cavaliers into exile, and gave power to the often ridiculed and contemned Roundhead's, to whom was allegiance due ? The protector Cromwell and his generals would have laughed to scorn the idea that it followed their exiled Prince into foreign lands ; and that it was perpetual and indissoluble.

They would have pointed to their bloody swords, and said, “ with these, we cut the Gordian knot, which we could not untie.” They would have said truly, their allegiance was then due to the Parliament, as the representative of the people, in whom “ all power is vested,” and “ from whom it is consequently derived.” The second revolution, which drove forever the tyrant race ^ie ®tewai'ts L°m the throne of England, placed allegiance there, upon the footing, that it was due to the King, not as the Guelph, but as the King of the English people.

It is obedience to him, as, the origin through which their ,iaws emenate, and by which they are also to be executed. It is true, from his fancied divine right, (I suppose) as well as his civil rights, as hereditary Governor of the English people, this allegiance is said to be perpetual — and that it can only be dis. sojyecj jjy jjjs conger. In other words, once a subject, always a subject, is the notion which declares allegiance to be perpetual.

Our forefathers, when they crossed the Atlantic, and sought in the wilderness, among its savages and beasts of prey, that personal security and freedom of opinion which they could not find at home, were still followed by this phantom of allegiance. In the rugged wilds and mountain fastnesses of Arne-rica, the sturdy republican wanderer, clothed in the skins won by his bow and spear, drinking from the bubliug brook and eating the bread produced by the sweat of his brow, was told that he owed allegiance to the King of England, because he was born his subject.

To him there seemed to be no reason in such a requisition; and although for more than a century this was not a disputed point, and obedience was yielded by the Colonies to the English King, yet it was the result of the weak and helpless state of Colonial infancy; it never was recognized to the full extent claimed, by the young and growing States, with in 1776 dared to be free.

In our Revolution and Declaration of Independence, this notion of perpetual allegiance was repudiated and rejected.— It was then said, “We hold these truths to be self-evident; that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness.

That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of Government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute a new government, laying its foundations on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safely and happiness.” From this time and from this instrument, I think that allegiance, in its feudal sense, or in that in which it is understood in the English limited monarchy, became wholly inappropriate to our complex form of Government.

I shall have occasion hereafter to develop'e this idea more fully. We all concede in this country, that all power is originally iu the people; that is, they alone can rightfully authorize persons, as their Governors, to exercise the right to rule over them as a people, and to restrict their liberty of action, which each man in a state of nature may exercise. But does it follow, that Allegiance is due to the People ? It is due to their govern, ment, whatever that may be. If they arc the government, by assembling as in a pure democracy and passing all laws, it is due to them in that assembled character.

It is due to their power, when in exercise and challenging obedience ; but nothing is due to an ultimate right in reversion, which may or may not be exercised. As well might it be said, that Alie-giance is due to a king by possibility, because it is “ the right of the people to alter and abolish the present government,” and in its place to crown a monarch, as it is to claim Allegi anee to the abstract right of revolution. I think one of the counsel said truly, when he asserted that allegiance, in this country, as well as in Europe, was due to the government.

It is then emphatically (if there is any such term in proper use in this country,) Allegiance to the People : for the govern, ment is the administration of the peope, it is their will in the form of paramount law, and it is to that our Allegiance is due. Can there be any thing else, to which the fidelity of tho citizens of this State is due ? Treason at common law is said to be the violation of Allegiance. Can there be any treason, in mere matters of opinion 1 If one should deny the ultimate right of revolution in the people of this state, would it be treason against the State ?

Clearly not. - But if the peoplo should carry the right into execution, and set up a new form of government, a citizen warring against it would be guilty of Treason. What is the reason, I may be asked, of this distinction ? It is because, in the first case, there is no sovereign command, saying to the citizen, do this duty ; there can be therefore no disobedience. In the other, the duty is demand, ed and is commanded to be discharged, and obedience must follow from every one who lives under the government thus set up. But it is said that Allegiance is the duty which the citizen, or subject, owes to the Sovereign.

Let this definition be admitted, and before we can see what will be its effect, we must understand who is the Sovereign to whom Allegiance is due. I am told that it is the People. I admit it. But it is not to the People in a state of nature, it is to the People in their form of government. It is then that their high behest cannot be questioned. We thus come back, and find that Allegiance is due to the government of the People, as their Representatives, or as the People themselves. It is in this character and res-pent, standing for the people and in their place, the sovereign.

But let us test the proposition in another point of view. Break up the government; to whom do we then owe Allegiance Í To the people, is the answer! How are you to fulfil its duties 1 Has one man, more than another, the right to your services ? No ! Can any number short of a majority have the right to control you 1 No! it is only, then, when assem. bled and having given utterance to their will, in the establish, ment of a government, that Allegiance to the people commences. It is the duty of the eitizen to obey, because the people in their government command obedience.

If at the organization of the government, one who had objected to its formation, should peaceably withdraw from it and go beyond its territorial limits, would he incur any crime, or owe it any duty ? Surely not. He has exercised his natural rights as a freeman : rights, which the clear heads and honest hearts of the signers of the Declaration of Independence, recognized, and gave to their posterity, as self-evidently true. In any and every point of view in which I am able to consider the subject, Allegiance, in this country, is due io the government of the people.

I have, heretofore, and I shall use throughout this opinion, the term Allegiance, because it is the one most commonly used to denote the duty of the citizen to the government. But, I apprehend it is wholly misapplied in the land of Washington and Franklin; or to be exclusively Carolinian, in the land of the Rutledges, the Pinckneys, the Middletons, the Hugers, the Heywards, the Draytons, and the Laurenses. Allegiance is properly the duty which the subject owes to the King, and whether personal or derivative, is an unfit garb to clothe the Republican.

It is like putting on the statue of Washington the robe of the Ctesars. Every one knows, that it has no connection with or fitness for republican simplicity. Our duty is obedience to the government of the people : and if there is any other tie existing in this country, I have been unable to discover it; and if I believed there was any other, it would carry with it unimaginable terrors, for the reason that we cannot know our duty, or who has the right to command it. What is to be understood by the government of the people ? I answer, the constitutions of the State and the United States.

They were the government of the people of the State of South Carolina, operating alike, in their respective spheres, silently, but with irresistible authority. To these instruments, as the expressed will of the people in the shape of paramount law, every citizen and officer is bound to yield obedience. Every act of Congress which conflicts with the. Constitution of the United States, is by it annulled and made void: every act of the State Legislature which conflicts with either the Oonsti* tution of the United States or the State, is also void. Why ?

Because they have been enacted without the authority of the people, and are therefore usurpations of power, not law. As long as the government remains, these- Constitutions are the authority by which rule is exercised by each branch ; and they constitute the limits beyond which neither is to go. To them, therefore, as the Sovereign power of the people in exercise, and constituting their government, our allegiance, or obedience, is due. Sovereignty and Allegiance, we are told, is indivisible. Admit the proposition, and what follows ?

Simply, that the two Constitutions are the sovereign, aud that our Allegiance is due to them. They must together be sovereign, for together they constitute the entire will of the people, by which the government is to be administered in the Stat<? and in the United States. Each is sovereign in its particular department of rule, for each can overule every thing which is contrary to its particular provisions. All must obey ■ them, and hence, I apprehend it is, that our notion of Allegiance must be formed in this country.

That every duty, whieh we owe as citizens, is due to one or the other of these branches of this government, considered as one government,'.is undehiable. For the term citizen implies a government existing, to which a duty is owing, as much as the term subject implies a King to whom subjection is yielded.

So far as general reasoning can go, I am hence satisfied that our Allegiance, or obedience, is due and owing to the Constitution of the United States and of the State, and of course to the two governments created by them, and constituting, in a legal point of view, one government in each state, so long as they (the government of the United States and of the State) keep within their respective constitutional limits.

Whether this be divided or single Allegiance, it is exactly our condition in point of fact, and it is in vain, therefore, to assert an abstraction, against positive, certain, existing and real duties, which we daily practice and perform. I will now, I trust, be able to show, from the Legislation of South Carolina, that this is the true doctrine. Before the Constitution of 1787, South Carolina was unquestionably a Sovereign State, and yet, I am satisfied that it was not then doubted that allegiance was due to the United States.

Because for the time being, and so long as the articles of confederation stood, that government was a part of the Government of South Carolina, established and having effect only by her compact with the other States. The oath of allegiance to South Carolina was in effect, then, an oath of Allegiance to the United States. I presume that no citizen of South Carolina could then have levied war against tho United States, and not have been declared guilty of treason against them.

We have heard much of the oath of fidelity and Allegiance, which was in use before the ratification of the Constitution of the United States, and have been pointed to the Chancellors’ oath, P. L. 337, and to the oath to be taken by Attorneys on their admission to plead and practice law, P. L. 563, as fur-¡jibing evidence that the State then claimed the exclusive Ah legiance of her citizens. This might be conceded, without prejudicing my view : but I am unwilling to believe that this controversy was ever dreamed of by the Lloyd, o Rutledge and Grimke of that time.

They had seen too often and too recently the gallant yeomanry of the sister States of South Ca . rolina, fighting the glorious battles of Liberty, on her own soil, to think of any conflict of Sovereignty. Cowpens and Eutaw carried too may united associations of American glory, to permit a thought that no duty, no Allegiance, was due to the Government which was itself the cradle of American Revolution. But that I may not be accused of idle dreaming, and of having departed from the noble principles of ’76, read the oaths of the Governor and Privy-council, as fixed by the act of ’78, P.

L. 297 ; neither of them speak of fidelity to the State, as a separate nation and Sovereignty. The Governor swears, “I, A. B. do solemnly promise and swear 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, maintain and defend the laws of God, the Protestant religion, and the liberties of America..

So help me God.” The Privy-counsellors’ oath closes with a promise to keep secret every thing the discovery of which may be prejudicial, “ to the liberties of America, or of this State.” These oaths seem to me to be in effect oaths of Allegiance to the Government, or the People of the United States, considered then as an aggregate community for some purposes. What is a striking fact, is, that the Governor, the acknowledged head of a free and Sovereign State, should have been required to swear to do nothing prejudicial to the liberties of America.

The Privy-counsellor swears to disclose nothing which may be prejudicial to ike liberties of America, or this State, recognizing an existing duty on the part of an officer of the State to an aggregate community of which the State was mw, which might not he identical üvjth his duty to the State. To my niind, it is clear as a sunbeam, that the Legislature of ’78 admitted, by these oaths, allegiance or obedience to be due by-the citizen of South Carolina to the United States.

There is nothing to contradict .this view in the acts of 1784, 1788, and 1788, to admit aliens to citizenship, or denizenship, and to preserve the evidence of such admission. Aliens were then obliged to become citizens of a State before they could have any of the rights or privileges of the several States composing the United States. Aliens now become citizens of the United States, before they can acquire the rights and privileges of citizens of a State.

Their Allegiance before the Constitution of the United States, was promised to the State, and through- the same oath was extended to the United States— now, the Alien., when he is admitted to be a citizen of the United States, swears to support the Constitution of the United States, and renounces all foreign Allegiance. This is an oath of Allegiance to the United States and the State in which he resides. Ex Parte, Granstein, 1 Hill, 143. But where is the oath of fidelity and allegiance to the State (as it is spoken of in the acts to which reference is made) to be found?

Judge Grimke, who might have-said of all these matters “ Magna pars fui,” omits it altogether in his collection of the laws of the State.

For nearly forty years it has been regarded by all as obsolete, or superseded by the oath of office in the Constitution, which is called in many instances the oath of fidelity to the State, and was formerly believed to be so, by all ranks and classes of the community. , - So far as my knowledge extends, the Constitutional oath of office has been administered to Attornies at Law and Solicitors in Equity, on their admission to plead and practice, instead of the Oath of Allegiance prescribed before the adoption of the Constitution.

I have never heard that any other has been administered since 1790 ; and 1 know, that twenty years ago, it was the only oath administered to me when I was admitted to the bar. I presume no Chancellor has taken any other oath than the oath of office required by the Constitution. For this certainly abrogates all former ones. The act of 1799, granting the rights and privileges of de-nizenship to Alien Friends, residing, or intending to remove, within the limits of this State, directs that they shall take and subscribe “ the oath or affirmation of allegiance.” What is meant by the oath or affirmation of allegiance ?

It could not have meant what one of the Judges of the State thought to be obsolete, 1-epealed, or expired, and which he omitted on that, account, to insert in that collection of Public Laws to which ^le Legislature of ’99, and every other since assembled in the State, have been in the daily habit of referring to ascertain the laws of force in the State. It might have meant, possibly, the oath directed by the then Alien Law of the United States, to j,e administered to Aliens, on becoming citizens.

I prefer, however, to give it the construction which it is susceptible of, which is, that- it meant the constitutional Oath of office, which, as ^ ^ave fr°f°re sa^’was regarded as an Oath of fidelity to the state. If there is any other Oath of Allegiance of force in the State, to which it could have reference, I confess that I have yet to learn the fact.

As I have before had occasion to say, an oath to support the Constitution of the United States, with an abjuration of all foreign Allegiance, is the only Oath required by the law of the United States, on admitting an Alien to become a citizen.-— The Legislature of this State, in 1807, expressly recognised as a sufficient guaranty to legalize the title of an Alien to land, the fact of his having conformed to the laws of the United Stales, by giving notice of his intention to become a citizen.

This was in substance giving -the rights of a denizen, to one who had made no exclusive acknowledgement of power or right in South Carolina. It shows that to be a citizen of the United States, or even to be on the way to became one, was once such evidence of fidelity, that it dispensed with all other pledges or assurances. The South Carolinian felt then, that to be an American citizen was bis most enviable title and distinction. It was his right to participate in the glorious triumphs of the Revolution of ’76, and to share the Constitutional inheritance of freedom.

This rapid and desultory glance at the Legislation of the State, shows that she did not formerly question the fact, that Allegiance was due and owing by her citizens to the Constitution of the United States. It is now necessary to look to the Constitution of the United States, to ascertain how far the Government, created by it, is to be regarded as aprimary government entitled to the Allegiance of the people, to the extent of the Constitutional powers conferred on it, and no further.

We have been told in the progress of this argument, that the government of the United States was a mere league between co-States: in other wonds, that the spirit of the old confederation exists in the Federal Constitution, although the former has been superseded and abolished by the latter. We must live in an age of political wonders and m iraeles, if not of natural ones.

I confess that I heard with astonishment the old confederation lauded as the best government in the world, after I had regarded il as settled and given up nearly 50 years ago as a matter of history, that it was an impracticable government: — and that the rescue of the People from anarchy, and misrule, and utter ruin under it, by the adoption of the Federal Constitution, was one of the marvels accomplish, ed in the political world by the heroes and sages of ’76. But praise or censure is- as often the result of prejudice as of judgement.

It seems to me to be perfectly clear, that the government created by the Federal Constitution, is strictly speaking and in every sense, a government of the people ; not of the whole people in the United States, as among themselves, but in this point of view, of the people of each State. As between it and foreign States, or nations, it is a government of all the people of the United States, in one aggregate community. It is a government: for within its prescribed constitutional limits, it acts upon the people, and enforces against them its laws, through its own judiciary, or that of each State.

Within its own Constitutional limits, it is absolute and supreme. By the 2d Sec. of the 6th

article of the Constitution of the United States, it is declared that “ this Constitution and the laws of the United States which shall be made in pursuance thereof, and all the treaties made, or which shall be made, under the authority of the United States, shall .be the Supreme Law of the Land: and the judges in every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding.” Does not this supremacy of Constitutional law, necessarily make the government of the United'States as much the government of the people of this State, as her own immediate government?

It is too clear, to admit of argument that it does. What is the necessary consequence ? Is a government possessing such great powers, without any tie of obedience or allegiance between it and its citizens? — Can it be, that in a time of war, a citizen soldier would be allowed to refuse to shoulder his musket, and say, I owe you no Allegiance, I will wait until my own State has bade me fight ¡ Could he say, I will assist your enemies, and you dare not punish me for treason, because South Carolina has not defined it?

These questions must have an affirmative answer, or we do owe Allegiance to our government, not our agency, under the Federal Constitution. Allegiance is the tie, it is said, which unites the citizen to. his sovereign. It would seem to be clear that the fact of citizenship of the United States would prove the fact of the sovereignty. If instead of a Constitutional free Republic, we had the misfortune to live under a inonarchy, we should aU ways conclude, that when we were spoken of as the tornib employed, would be understood to mean subjects of the King., and that we should owe him Allegiance.

When we speak of citizens, we mean the people of a freo government; and they stand in relation to the government, as incurring in support of the institutions of Freedom all the obligations which the subject owes to his King. It is Allegiance in the dominions of the Autocrat of all the Russias : it is here Constitutional obedience. If there were no such person as a citizen of the United States known to the Constitution, we might come to the conclusion that the government of the United States is no government, and is not entitled to any allegiance.

But the Constitution teems with provisions speaking of citizens of the United States. 2d. par. of the 2nd. sec. ofthe 1st art.; 3d. par. 3d. Sec. 1st. Art. 5th par. 1st see. 2d Art. To whom do they owe allegiance 1 To the State in which they live, or to the government of which they are officers, and of which they swear they are citizens 1 They owe it to both Governments, within their respective Constitutions. Take the President of the United States as an example, and as names are now a days of some importance, let us take Thomas Jefferson, while he was President of the United States.

To whom did he owe Allegiance ? Did he owe it to the State of Virginia, of which ho was a Native born citizen ? Did he owe it to the United States, whose officer and head he was for the time being ? The questions seem to involve such opposite claims, that a stranger to our institutions and government could not answer them ; and yet there was involved no inconsistent duty. He was bound to support, protect and defend the Constitution of the United States ; and in doing so, he was supporting, protecting and defending the Constitution of Virginia, in all her rights as a member of the Union.

It was strongly put by one of the Counsel, to whom does the Allegiance of the people residing within the ten miles square, in which the City of Washingtion is situated, belong? It can’t be, that it is to Maryland and Virginia, for neither have even territorial jurisdiction over them. It would seem, from necessity, that their Allegiance was exclusively due to the United States. But permit me to put another question or two : To whom did the allegiance of the people of Lousiana belong, when the United States bought the soil and territorial jurisdiction from the Emperor of the French ?

Not to any State of the Union ; but to their government under the Federal Constitution! To whom does the allegiance of the people of all the States be • yond the Ohio and the Mississippi belong ? 'Their territorial rights are derived from the United States, and most of the land within their limits is granted by the United States to the occupants. If allegiance depends upon the. tenure by which the citizens of those States hold their lands, they owe Allegiance to the United States, if we do not. But such an absurdity cannot exist, that they owe a duty to the Government of the United States, which we do not.

Treason is a violation of the tie of Allegiance. What says the Constitution of the United States in relation to it? It is defined, “ to consist in levying war against the United States, or in adhering to their enemies, giving them aid and comfort. ” If the Government of the United States, (as we familiarly call it, and as I really think it is) is no Government, but is a mere agency, it is strange that treason can be committed against it. Whoever heard of treason being committed against any of the subordinate parts of a Government? It is one-of the essential attributes of Sovereignty to punish for treason.

Why is it, that in Treason, two witnesses were required by the English law, to prove an overt act ? One of its greatest sages says, that a single witness proving it, would be oath against oath, the oath of the witness against the allegiance of the subject. Our Constitution has adopted this provision of the English law, and it is fair to conclude that our great sages supposed the allegiance of the citizen to equalize and destroy the oath of a single witness.

The power of amendment of the Constitution by three fourths of the States, has been, by more than one great name in South Carolina, held up as the ultimate sovereignty to which allegiance was due. I think there is no duty, no allegiance, to any such ultimate right. But it shews, however, that a government which can be amended against our will, and which will then operate directly upon us, is something more than an agency ; and that it has high sovereign-powers to which obedience must be yielded.

The subject is almost inexhaustible ; and I will only add two or three other views out of the Constitution of the State and the United States. It will be remem-. bered, that before the ratification of the Federal Constitution, we had an oath of fidelity and allegiance to the State. Tho oath of office in our State Constitution was, as I conceive, the substitute for the old Oath of Allegiance t and clearly imports allegiance to the government of the State, within her Constitution, and to the United States’ government, within their Constitution.

When the officer swears to preserve, protect and defend the Constitution of this State and of the United States, is. he not sworn to Ire faithful and true allegiance bear to the government of the United States ? It is impossible that it can have any other sense; for any act which was intended to bo tho overthrow of either constitutional government, would be tho violation of the constitutional oath: and the support of the two governments, or more properly and legally speaking,, the two parts of one government, is the duty which ought to bo enjoined by an Oath of Allegiance, framed in any words.

Again: — the Constitution of the United States requires, that “ the Senators and Representatives in Congress, the members of the several State Legislatures, and all Executive and Judicial Officers, both of the United States and of the several States, shall be bound by oath or affirmation” to support it. This is requiring all who are concerned in the administration of the Federal or State Governments, to swear allegiance to the Constitution of the United States, and, of course, to the government created by it, so long as it acts within the pale of the Constitution.

I am satisfied, from general reasoning, the legislation of South Carolina, the Constitution of the United States, and tho oath of office in the State Constitution, that allegiance and obedience are convertible terms, and that we owe allegiance or obedience to both governments, to the extent of the constitutional powers conferred on each. In this respect neither can claim a paramount allegiance : the duty to either is regulated by the respective Constitutions of each.

Having ascertained the constitutional duty and allegiance of the citizen, it is now necessary, before we discuss and decide the question whether the Oath in the Military Bill conflicts with them, to consider the objection, that the act is passed in conformity to an Ordinance of the Convention, and that the Convention was the people, and was illimitable. In one point of view, a Convention may be illimitable. It is, however, then, a Revolutionary, and not a Constitutional Convention, It is one which assembles to resolve society into its elements, and to which the people necessarily give all power.

I do not understand that this Revolutionary character is claimed for the Convention which ordained the Ordinance now under consideration. It is to be regarded as a Convention assembling under and by authority of the Constitution. It may well be doubted whether such a body would have any power to amend the State Constitution : the words of the 2d paragraph of the 11th

article would , seem to place it in other hands. Be this, however, as it may, a convention assembling under the Constitution, is only the people for the purposes for which it assembles; and if they exceed those purposes, their act is void, unless it is submitted to the people and affimed by them. It is true, the Legislature cannot limit the Convention; hut if the people elect them for the purpose of doing a specific act or duty pointed out by the act of the Legislature, the act would define their powers. For the people elect in reference to that and nothing else.

The Convention was called to consider the acts which were either passed or may be passed by Congress, laying duties on foreign imports, for the protection of Domestic Manufactures ; or for the purpose of enforcing them. The people elected delegates in reference to this call ; it was not contemplated that they should do any act which was not necessary to give effect to the object and purpose of the people. The Convention met in November, 1832, and nullified the laws which they were called on to consider.

These laws were repealed, and another act passed which was satisfactory to the Convention, and in March, 1833, they rescinded the Ordinance of Nullification; but again nullified another act of Congress, entitled “

An Act further to provide for the collection of duties on imports,” commonly called the- “ Force Bill.” Here ended their powers. It is clear that the Convention had no right to pass the ordinance defining allegiance, and to authorize the Legislature to pass laws to carry it into effect. It is hence unnecessary to consider what would have been the result of a conflict between an ordinance of the Convention and the Constitution of the United States. This brings us to the consideration of the oath in the act to provide for the military organization of this State.

Before we can see whether it conflicts with our allegiance to the United States, as I understand and have already explained it, we must see what the Legislature means by the words “ that I will be faithful, and true allegiance bear to the State of South Carolina.” If we were left, as in times long gone by, to judge from history and our Constitutions, we should be apt to conclude that this meant nothing more than the constitutional oath, although it might still be unconstitutional.

The Legislature, in 1832, adopted a resolution declaring that “the primary and paramount allegiance of the citizens of this State, native or adopted, is of right due to this-State.” This is one evidence of the sense which the words in the oath are to bear.

I trust that I have shewn that our allegiance is duo to the Government of the United States as well as that of the State, according to the respective Constitutions of each — and that of course in this respect there is a direct and positive conflict of duties required by the Constitutions of the United States and the State, and the oath of allegiance as explained and understood by this resolution.

So, again, although the ordinance is no authority to the legislature to pass the act in question, yet it may be referred to as matter of history, to shew in what sense the word was used* Reading the oath in connection with the ordinance, and regarding the R'ter as fixing the meaning of the former, there can be no doubt, according to my view of our constitutional duty as citizens, and of the obligation of our allegiance, binding us to both Governments, that the oath is unconstitutional, null and void.

But it is said, it is an ordinary act of legislation imposing no new duties on the citizen : and that the Legislature might constitutionally prescribe an oath of office for a militia officer.— In this point of view the ordinance of 1833, and the resolution of 1832, arc considered as if no such things existed. It is first supposed, and that, too, by the venerable and estimable Judge who heard and refused the. motion in the first ease, that a militia officer is not an officer under the Constifution, to whom the constitutional oath of office is required to bo administered.

This construction is fortified by the fact that the Legislature of ’94 prescribed an oath to be taken by militia officers in substance agreeing with the constitutional oath in some particulars, but omitting others. 1 Faust, 344.

But however venerable the error may be, and however often it may have been repeated, it must fall before the Constitution of the State, which 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 I 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.’ ” Is an office in the militia an office of profit or trust ?

It would seem that there could be no doubt on the subject. The Constitution of the State, 21st

section of the 1st article, shows that the Convention who framed the Constitution, regarded a militia officer as holding an office of profit or trust.

It declares that no person shall be eligible to a seat in the Legislature, whilst he holds any office of profit or trust, under this State, the United States, or either of them, or under any other power, except officers in the militia, army or navy of this State, justices of the peace, or justices of the county courts, while they receive no salaries.” The exception shows that a commission in the militia is embraced by the words an office of profit or trust; and it is con-elusive upon the point under consideration.

But this construe-iion eamiot affect the commissions or acts done by officers of the militia, under the militia law, as it stood prior to the act of the last session of the Legislature. For although the constitutional oath ought to have been taken,' yet there was no law declaring that the commissions of the offipers should be forfeited for not taking it. The legal provision in that respect .related to the oath prescribed by the act of 1794. So that the officers were at least de facto, if not. de jure-, and their acts would be sustained.

I doubt, and have ever .since I was first brought to think about the subject, whether the Legislature eah make any addition to the oath of office in the Constitution. It is true, that I was in the House of Representatives when the law to suppress gaming was enacted, and I am therefore constructively to be considered as voting for the oath contained in it: but no vote in fact was taken upon it; and then and for years after I had not thought of the question arising under the constitution.

It may be, however, that in the discharge of a mere ministerial civil duty, the Legislature would have the right to secure its performance. The inclination of my mind is, however, to the conclusion, that the affirmative here must be regarded as including the negative, and as denying to the Legislature all power over the subject. Be this, however, as it may, I am fully satisfied that the Legislature could not so alter the oath of office as to affect the political relations of the citizen to the Government of the Unitod States and the State.

These are fixed by the two Constitutions and depend upon their construction. The power to define and prescribe these relations is no where committed to the Legislature. Indeed, it would be strange if it was, when the Constitution is itself the power to which the Legislature must bend. If they had the power to define and prescribe the political 3-eIations which ought to exist between the citizen and the Stale and the citizen and the United States, they could remodel the government at pleasure. The Legislature would be thus above all laws, all Constitutions.

The question of allegiance depends upon our political relations to the Government of the United States and the State. An oath requiring the officer to promise to be faithful, and true allegiance bear to the State of South Carolina, is establishing the political relation which he is afterwards to bear to the State and the United States; it either requires something more than to “ preserve, protect and defend the-Constitution of this Stale and of the United States,” or it is the same thing, and in either point of view it is void.

For the people, and not the Legislature, have the right to prescribe the duty of the officer in that respect. They did prescribe it in the Constitution, and the act of the Legislature is unconstitutional and void. I am, therefore, of opinion that the motion should be granted in the case of the State ex relatione E. J. M’Cready v. Col. B. F. Hunt, and dismissed in the case of the State ex relatione James M’Daniel v. Brigadier General Thomas M’Meekin. JOHN B. O’NEALL. Johnson, J. It is provided by

an Act, passed at the last session of the Legislature, that “ 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 person authorized by law to administer oaths, the following oath: “I, A.

B. 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.” The relator, Edward M’Cready, having been elected to the office of Lieutenant of Militia, subsequently to the passing of the act, declined taking and subscring the oath above recited ; but notwithstanding, claimed to be entitled to be commissioned, on the ground that the said oath was enacted in violation of the State Constitution.

The defendant, the Colonel commanding the regiment to which he belonged, declined taking upon himself the responsibility of determining that question, and refused to grant him a commission; and a motion was made, before Mr. Justice Bay, for a rule to show cause why a mandamus should not issue, 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.

The counsel opposed to the motion, without conceding that the said oath is incompatible with the Constitution, have insisted also, that the authority of the Legislature is derivable expressly and directly from the ordinance of the Convention of delegates of the people, passed on the 18th Mareh, 1833, wherein it is ordained and declared “ That the allegiance of the citizens of this State, while they contiuue 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 the Legislature is thereby “ 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 and affirmations, binding them to the observance of such allegiance, and abjuring all other allegiance.” On the other hand, it has been maintained? that the power of the Convention was and rightfully might be limited to the duty of taking into consideration “ the several acts ot 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,” &c. and these objects having been attained, the Convention had no authority to empower the Legislature to prescribe an oath of. allegiance in this or any other form — and conceding, for the salt-s; of argument, that the authority of the Legislature is derivable from the ordinance of the Convention, it is further insisted, that if the term allegiance, used in the act, is to be understood as defined in the ordinance, to be exclusively due to the State, the said oath, is void — as being repugnant to the Constitution of the United States — allegiance being also due to the United States.

Out of this state of the case, 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 th.e Legislature to enact an oath on the subject of allegiance ? 3dly. Whether it is-not repugnant to the Constitution of the United States?

In the language of the' declaration of rights, contained in our State Constitution, “ all power is originally vested in the people, and all free governments are founded on their authority, and are instituted for their peace, safety and happiness,” and the Constitution is an emanation from this high authority.

Its design was to establish rules for the government of the State, and to that end it has provided for the organization of a Legislative, Executive and Judicial departments; and assigned to each their appropriate 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 enquire) the exposition of the laws ; and indirectly, in cases involving the right of individuals,, the supervision of the other departments..

The Judges themselves being responsible to the immediate representatives of the people. Under any circumstances, the exercise of this power- is one of great delicacy ; and no combination of circumstances could better illustrate its great importance, and the vast amount of responsibility incident to. its discharge, than those which enter into this case.

The delegates of the people convened for the purpose of 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 the allegiance of the citizens of this State, while they continue such, is due to the State, and that obedience only, and not allegiance, is due by them to any other power.” The Le» gislature, which convened after the promulgation of this decía-ration, have, by a resolution, solemnly affirmed the correctness of the principle contained in that declaration, and by

an act, provided that every officer of militia hereafter to be elected, should take an oath of allegiance to the State.

On the other hand, a large and very respectable minority of the people have, in public meetings and through the public journals, denounced the principle of the declaration of the Convention and the act of the Legislature, as subversive of the rights of conscience, and contrary to both the State and Federal Constitutions ; ancl in the angry discussion which has grown out of this controversy, and which is still continued with increasing animosity, all the bad passions of the human heart have been excited to the highest pitch, and want nothing but an exciting cause to call them into action.

It is a question about which the parties have eeased to reason, and have settled down upon opposite conclusions, as aphorisms admitting of no discussion, and it is impossible to approach it without a full sense of the great responsibility which it imposes.' But it is a duly imposed on the Court by the Constitution — and if there be any duty more sacred than all others, it is that which devolves on the Court to preserve that Constitution from violation — except as the people may in their wisdom think proper to change, amend or alter it.

It is the sentinel which the Constitution has placed as a guard upon the other departments of the government, as the best security for the rights and liberties of the people — and I approach the questions now submitted, with a consciousness that I shall have discharged that duty, whatever may be the consequences. The authority of the Court to declare

an act of the Legislature unconstitutional, has never been questioned. It results necessarily from that general power which the Court possesses to expound the law. The Constitution is the paramount law, and all acts of the Legislature or of other departments of the government, repugnant to, or inconsistent with it, are necessarily inoperative and void. The Court will never, however, presume to declare

an act of the Legislature void, upon light and trivial grounds. Respect for the most necessary and powerful department of the government would forbid it; on principle, too,

an act of the Legislature ought to be suffered to prevail and operate as law, unless it is demonstrably inconsistent with the Constitution. Without a Constitution, the power of the Legislature would be under no restraint, except those great fundamental principles by which our natural rights are secured, and which man himself can’t abrogate; the Constitution was intended to restrain those powers 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 receive the same rigid construction.

The general power being conceded, it ought to be rendered certain that it has been taken away or abridged.' I can’t, however, give a willing assent to the rule laid down by Judge Waties, (if rule it ean be called) that

an act of the Legislature ought to prevail, unless it is so palpably repugnant to the Constitution, that its inconsistency would be obvious to any well informed mind. — Well informed minds might well enough draw opposite conclusions, as to questions which had not been subjected to the analysis of reasoning, and yet meet in the same view, when it had been subjected to that analysis. Truth does not always float on the surface, and is not the less convincing that it has been brought to light at the expense of much toil.

Many of the aphorisms which it would be criminal now to doubt, would have been regarded as heresy in times past. But whatever may be the process by which we arrive at it, I am satisfied upon the principle laid down, that

an act of the Legislature passed according to the forms of the Constitution, ought to prevail as a rule of action, unless it is fairly demonstrable to be repugnant to the Constitution ; and with this rule as a guide, I will proceed to consider the first of the foregoing propositions : Whether the oath prescribed by the Legislature to be taken by all militia officers hereafter to be elected, is or is not consistent with the Constitution of the State.

That provision of the 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 swear (or affirm) that I 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.’ ” It has 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 can’t conceive of an higher trust than the command of an army in the time-of war. It is also an office of profit. The officer may be called into actual service, and in that event provision is made by law for bis pay and rations — (1 Faust, 312) — and I shall consider this question as admitting of no doubt. But it is denied that this

Article of the Constitution contains any prohibition which restrains the Legislature from exacting from an officer elected or appointed, any other oath that might be thought expedient, and which was not in itself directly inconsistent 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 Constitution which directly prohibts the Legislature from exacting another oath, in any other form, than that prescribed, to be taken by all officers, in the 4th

Article — but Lord Coke says, (1 Inst. 381) that the most natural and genuine way of construing a statute, is to construe one part by another, of the same statute; for this best expresseth the meaning of the makers, and such construction is ex viscerebus actus. This rule is alike applicable to all writings, constitutions and compacts — and it is well remarked, by Judge Nott, in Cohen v. Hoff, (2 Tread. Rep. 671) that sometimes affirmative words necessarily imply a negative of what is not affirmed, as strongly as. if expressed. That remark was applied to the question, whether

an act of the Legislature, authorizing the Governor, in case of the sickness of the Judge on circuit, so as to be unable to hold the Courts, to appoint a person to perform his duty, was or was not constitutional — and to see its full force, it will be necessary to remark, that the 6th Art. of the Constitution declares that the Judges of the Superior Courts shall be elected by both branches of the Legislature — and although negative terms are not introduced to restrain the appointment of Judges, in a different- manner, that learned and able Judge came to the conclusion 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 executes 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 Constitution with the o-thors. Without a Constitution, the Legislature, like the British Parliament, would have been supreme, and without any other rule for its government than its will.

The only purpose of a constitution was, therefore, to limit this power by prescribed rules; and on looking through the Constitution, it will be found that there is no grant of the law-making power, for that was unne. eessary.

Every provision in the Constitution affecting the power of the Legislature, must, therefore, necessarily be understood as limitting that power, unless it is otherwise express, ed — and I take, it, that in every instance in which the Constitution has prescribed a rule in affirmative terms, without other qualification, the negative arises by necessary implication; unless the terms in which the oath of office prescribed in the 4th Art., and before recited, constitutes an exception. For example — the 6th

section of the 1st Art. provides, that “no person shall be eligible to a seat in the House of Representatives unless he is a free white man, of the age of twenty-one years, and hath been a citizen and resident of this State three years previous to his election ” — nor unless he possess certain property qualifications. The 8th

section contains the' same provision, expressed in the same terms, with respect to the qualifications of Senators, varying only as to the age, residence and property qualifications — and so .of the age, residence and property qualifications of the Governor and Lieutenant Governor, provided fo.r in the 2d Art. The Governor shall be commander of the Army and navy of the State. He shall have power to grant reprieves and pardons. He shall take care that the laws are faithfully executed in mercy, &c.

In all these instances, and many more that might be referred to, the rules are expressed in affirmative terms — nor is there any thing in the terms themselves which directly imply a negative to the power of the Legislature, in prescribing a greater age, a longer residence, or higher property qualification of the members of the House of Representatives and Senate, and of the Governor and Lieutenant Governor — or that that thoy shall not supersede the Governor in the command of the army and navy, or vest the pardoning power some where else.

But when it is Recollected that the question before the Convention, was, what ought to be the qualifications and age of the members of the Senate and House of Representatives and of the Governor and Lieutenant Governor, who ought to command the army and navy, and who exercise the pardoning power, the conviction is irresistible, that the determination of the Convention is definitive, and must operate as a negative on the powers of the Legislature. The intention is quite as manifest as if it had been expressed in the plainest and most familiar terms.

The practice of the government is in conformity with this view; no one ever yet thought that .the Legislature could rightfully demand higher or other qualifications for members of the Legislature, or Governor, or Lieutenant Governor; or deprive the Governor of the powers vested in him by the Constitution — and our whole history furnishes no instance of an attempt to do so. Let us apply this reasoning to tho

article under considera* tion. “ All persons who shall bo chosen or appointed to any office of profit or trust, before entering on the duties thereof shall take the following oath,” &c. Here, as in the instances before put, there are no words restraining, in direct terms, the power of the Legislature in prescribing any other form of oath; but to ascertain its true meaning we must subject this

article to the same analysis that we did the preceding. The Convention was in the act of framing a Government for the State, upon such principles, and under such limitations and restrictions, as in their judgment was most conducive to their peace, happiness and safety — for the most obvious reasons its administration ought not, in any instance, to be confided to any person who was not attached to its principles, and willing to give it his entire support.

Let it be supposed, that the question was put to the Convention, what pledge ought to bo required of those who are to be chosen or appointed to admin, ister it — and let it be kept in mind, that the answer is given by the delegates of the people, who, as a community, are deman. ding it, and the answer given in the language of the Constitution : “ I do swear, or affirm, that I am duly qualified, accord, ing to the Constitution, to exercise the office to which I have been appointed, and will, to the best of my abilities, discharge the duties thereof, and will preservo, protect and defend the Constitution of this State and of the United States.” Those of us who may be selected to fill the offices of the Govern, ment, are willing to give this pledge of fidelity to the Government ; and this pledge we, the people, speaking through their delegates, especially appointed for the purpose, are willing to accept — and does not a negative, on the power of the Legisla, ture over this subject, as necessarily arise as in the cases before put?

As well might the Legislature undertake to add to the qualifications of a member of the Legislature, that he should be of a particular stature, or double the age required by the Constitution, as to demand of a citizen other pledges of devotion and fidelity to the Government, than to those prescribed by the Constitution.

I am met, however, with the objection, that the oath of Allegiance and fidelity imports something else than is expressed in the oath prescribed by the Convention — and conceding that the Legislature have no authority to superadd any thing to the same subject matter, or to vary the terms of that oath, it is contended, that the subject of allegiance not being embraced in it, the Iegislaturé, in virture of their general powers, have authority to prescribe an oath of allegiance and fidelity, It is not my purpose, here, to enter into an inquiry as to the nature of allegiance and fidelity ; that more properly belongs to another branch of this case : but I will passingly remark that the government may, under the authority of the Constitution, demand of the citizen the surrender of the last • dollar which he 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 can’t perceive in what way they are to be satisfied: — But let it be conceded, that fidelity and allegiance import something more than is expressed in the obligation to support and defend the Constitution — it is still but a pledge of fidelity to the government — and so is. the oath prescribed by the constitution — the form in which it should be put, and the extent to which it should be demanded, would necessarily have entered 'into the consideration of the convention in framing the Constitution — and there is nothing unreasonable in supposing, that the question whether it should be put in the form adopted by the constitution or in the form of an oath of fidelity and allegiance as prescribed by the act, was distinctly before the convention — if it had, I can suppose very satisfac - tory reasons why the former would have been — and in my judgement ought still tobe preferred — Allegiance, in its technical feudal sense, was intended to express the obligations of the vassal to his Lord, and of the Subject to his Prince, founded upon the right to govern, and the duty to obey.

The men who framed that Constitution were tile representatives of a people, who, by an eventful struggle, and at the expense of much blood and treasure, had thrown off their vassalage to the British crown, and assumed the right of self-government — they met in convention, feeling for themselves and their constituents that proud independence which their situation was so well calculated to inspire — they felt that all were upon a footing of equality: the humblest individual would have disdained to bend the servile knee to any being on earth, and it is not surprising that whilst all individuals were willing to give the most solemnly pledges to support the government of their choice, the greatest repugnance should have been felt to associating with it an obligation applicable to the degrading relations of vassal and Lord, Subject and Prince.

It is true that the term-allegiance is not unfrequently used to express the relations existing between the citizen and the government, and when so understood is void of offence ; but at the time the Constitution was framed it is no matter of surprise if it should have been rejected on account of the degrading associations connected with it; nor would it excite wonder if even at this dav the mode of expression adopted in the Constitution; by which all the objects are attained, should be preferred, if the public mind could be brought to deliberate on the subject dispassionately.

The 3rd sec. of the 6th art. of the constitution of the United States provides that members of Congress “ and members of the several State Legislatures, and all executive and judicial officers both of the United States and of the several states, shall be bound by oath or affirmation to support this constitution and an example that this provision in the constitution is not regarded as prohibiting Congress from superadding other obligations, is drawn from the act of Congress of March 1802 : Ingersol’s Dig. 38, by which the officers and soldiers of the army are required to take and subscribe an oath that he “ will bear true faith and allegiance to the United States of America,” &c, But the cases are not analagous — the constitution of the United States does not profess to prescribe the form of the oath as in the State constitution, but merely to state the principle on which it is to be framed, leaving it to the states, so far as it is applicable to them, to prescribe the form, and to Congress to do the same so far as it is applicable to the subjects under their control — 'the principle laid down in the constitution imposes an obligation to support the constitution, and the form in which it is applied in our state constitutions is that the officer shall swear that he will “ support, protect and defend the constitution” — and in the act that he will “ bear true faith and allegiance to the United States of America and if the example proves any thing, it establishes most clearly what I have before endeavored to maintain, that the obligation to support the constitution, is identically and substantially the same as to be faithful and bear true allegiance to the State; and that this was the sense in which it was understood by Congress, is demonstrable from the circumstance that in the oath before referred to, there is no other substitute for the obligation to support the constitution.

This argument is in my judgment conclusive as to the inapplicability of the example, but I \yill here remark, as applicable not only to this but all other examples of Legislation, that however they may serve to illustrate a doubtful

interpretation of the constitution, they will never be permitted to control its obvious meaning. We know that legislation is not always conducted with the strictest regard to the constitution. The stimulus of immediate interest is necessary to keep the attention always alive to the nice distinctions which are necessary to the perfect understanding of the constitution and the laws enacted — nor can a more satisfactory conclusion be always drawn from even long acquiescence in an enactment of the. Legislature.

There may be cases so unimportant to the individuals affected by them, and so immaterial in themselves, as not to have excited attention through a long course of years. The form of the oath prescribed by the act of Congress referred to, may serve as an example.

The officers and soldiers of the army are, from the nature of their offices, bound to support the constitution, and to them it was matter of no importance in what form that obligation was put; and it would be but a poor compliment to the excellencies of that constitution which we now, and I trust ever will cherish, as the palladium of our liberties, to suffer its foundations to be undermined by such means.

Thev act of the Legislature of this State of Dec. 1794, 1 Faust, 454, is an example of the application of the principles of the oath prescribed by the constitution of the state expressed in terms different from those used in the constitution — that act provides that every officer of militia shall take the following oath before some magistrate who shall certify the same on the back of his commission, "I, A.

B. do solemnly swear (or affirm as the case may be) that I will support and maintain to the utmost of my ability, the laws and constitution of this State and of the United States.” In this act the word maintain is substituted for protect and defend, and expresses precisely the same idea, and I have no doubt was intended to have been expressed in the same terms, and it is precisely one of those loose acts of legislation about a matter which no one was interested to investigate. As the substance was preserved, no one was interested to inquire whether the form had been preserved or not.

Generally speaking, mere matters of form ought not to be regarded if the substance is preserved, but it must be recollected that the subject to which this rule is to be here applied, is an oath intended to bind the consciences of men, and is prescribed by the supreme power in the state, the people themselves, and no one else has the authority to alter or change it — < form therefore becomes matter of substance — we are not then permitted to substitute other terms than those prescribed, for, peradventure, they import something else — the obligation to be faithful and true allegiance bear to the State, imports, according to my understanding of it, precisely the same as an obligation to preserve, protect and defend the constitution; but the very foundation of. the authority to impose that obligation, is that it imports something else.

I have no doubt about the authority of the Convention who framed the constitution, to have required an oath of fidelity to the government by which they are protected, both from officers and citizens, and that they had the right to put it in the form they did, or in the form of an oath of fidelity and allegiance as prescribed in tlio act ; bui-when an oath is prescribed differing in terras from that required by the constitution, and about the import of which there is so much diversity of opinion, there is at least some danger that the conscience may be in peril of moral.perjury.

If the import be different, the citizen or officer may be required under the constitution to discharge duties inconsistent with the obligations which the oath imposes, and that constitutes an insuperable objection to- the su-peraddition of any other obligation than that imposed by the constitution.

The oath required of sheriffs, justices of the peace and quorum, by the act of 1816, in addition to the usual oath of office, to enforce and carry into effect the act against gambling, has been relied on as an instance in which the Legislature has superadded other obligations in the form of an oath, than those imposed by the Constitution, and as another instance of the Legislative

interpretation of the Constitution. I have before remarked that the leading object of the oath prescribed by the Constitution, was to exact a pledge of fidelity from those concerned in the administration of the' government. But the oath imposed by this act refers to a different class of duties. The act was intended to suppress the practice of gaming, and it was made the duty of these officers to carry it into effect; and there is nothing in the nature of the oath, which, by any possible construction, can render the obligation which it imposes, inconsistent with the oath prescribed by the Constitution.

The Legislature had assigned to these officers a particular duty, and they had the right to require any security that might bo deemed necessary for its faithful performance, not inconsistent with the Constitution ; and it is upon this principle that bonds for the faithful discharge of (he duties of office are required of most or all ministerial officers. The Constitution, in the

article before recited, does, it is true, require that all officers shall take an 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 the power to require any other — but I am satisfied that the exercise, of the power is in strict conformity with the Constitution.

As before remarked, so much of the oath prescribed in the Constitution as relates to the duties of office, is expressed in general terms, and intended to cover all duties, and cannot be construed to exclude appropriate obligations to discharge a particular duty which the Legislature might assign, and is precisely the case supposed in a dictum of chief justice Marshall, in McCollough v.

Maryland, 4th Wheat. 416, which is relied on by the counsel opposed to the motion: when he says, “that ho would be charged with insanity who should contend that the Legislature might not supperadd to the oath directed by the Constitution such other oath of office as its wisdom might suggest.” The chief justice was maintaining the proposition that when the Constitution has designated a particular end, without having prescribed the means of attaining it, Congress were at liberty to select such as they should deem the most appropriate ; and he illustrates it by the oath of fidelity required by the Constitution, and concludes with the expression above recited, and surely that cannot be taken as authority in a case like this, when the end, the fidelity of the officer to the government, and the means, the oath prescribed by the Constitution, are distinctly and specifically designated.

The counsel opposed to the motion have referred to a long list of the acts of the Legislature following the Constitution of 1778, for the purpose of shewing that an oath of office, prescribed by the Constitution, does not conclude the Legislature from imposing other oaths of office, and these I propose to notice particularly, to show that so far from sustaining that position, they lead irresistably to the conclusion that the ground occupied by that Constitution was held sacred and inviolable, and that all the oaths 'referred to relate to the particular duties of the office, and are within the rule before laid down — I will begin by refering to that Constitution.

It provides “ that all persons who shall be chosen and appointed to any office, or to any place of- trust, civil or militaiy, before entering upon the execution of office, shall take the following oath: “Ido acknowledge the State of South Carolina "to be a free, independent and sovereign State ,• and that the people thereof owe no allegiance or obedience to George the III, King of Great Britain, and 1 do renounce, refuse and abjure all allegiance or obedience to him.

And I do swear (or affirm as the case may be) that I will, to the utmost of my power, support, maintain and defend the said State against the said King George the Third, and his heirs and successors and his or their abettors, assistants or adherents, and will serve the State in the 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 the same month, only nine days after, an example of legislation under it is found in the oaths prescribed to the Governor and members of the privy council.

That prescribed to the Governor is in the following form, viz: «I, A.

B. do solemnly promise and swear 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 causo law and justice in mercy to be executed, and to the utmost of my power, maintain and defend the laws of God and the protestant religion and the liberties of America.” That prescribed to the members of the privy council is that he will “ well and faithfully execute the duty of member of the privy council, according to the Constitution or form of Government established therein and that he will keep secret all matters and things which shall come to his knowledge, the discovery of which may be prejudicial to the liberties of America, or of the State, &e. (P.

L. 297.) In the October of the same year, the form of the oath of office of justice of the peace is prescribed by act, by which he is required to swear that he “will truly demean himself in the office of justice of the peace, and will conduct himself impartially, according to the best of his skill and knowledge, and the laws, usages and customs of the State,” &c. (P. L. 301.) and so of the oath of office of Commissioners of Locations, that he “ will well and faithfully execute the office of Commissioner of Locations,” (fee. “ without giving a preference to any through favor, fear or. reward.”— (P.

L. 335.) and the following is the form of the oath appointed to be taken by the Chancellors by the act of 1784. — • (P. L. 337.) “I, A.

B. do swear that I will well and truly serve the people of this State 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, according to the best of my knowledge, skill and ability — so help me God.” Now, in all these instances, it will be perceived that the oaths prescribed refer exclusively to the particular duties which the officer might be called on to discharge, and were evidently intended to secure their faithful execution — and further examples of the same sort may be found in the oaths prescribed to the judges, clerks and sheriffs of the county courts by the act of 1785. (P.

L. 367.) In that prescribed by the act of 1785, to Justices of the Court of Caveats, (P. L. 384) and in that prescribed by the act of 1787, to be taken by Escheaters — (P. L. 429,) and I have no doubt a further examination of the acts of- the Legislature would bring to light many other examples of the same character — and what does all this prove ? Why,

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