
    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.
    The oath of goers'ofthe mt c¡a iíb ^ ?/ean>?at‘°“ ?f unconstitutional son j.'holding that the State Constitution prescr?bedttVthf authorityhatl to m^aifer iVaiS O’Neaii J. that the oath is contrary to tho stitution of the state aiiegianceof the Federal Govcrnt diSútin^heid thS 'repu-nant uor inconsistent tion^of uio^citi-rai Government, and void — John 
    
    
      The Legislature, at an extra session, on the 26th October 1832, passed an Act to provide for the call of a Convention of the people of this State, the preamble and first clause of which are as follows:
    “Whereas, the Congress of the United States hath, on divers occasions, enacted laws laying duties and imposts, for the .purpose of encouraging and protecting domestic or Ame» rican manufactures, and for other unwarrantable purposes ; which laws, in the opinion of the good people of this State, and the Legislature thereof, are unauthorised by the Constitution of the United States, and are an infringement of the rights reserved to the States respectively, and operate to the grievous injury and oppression of the citizens of South Carolina. And whereas, ta the State assembled in Convention, it belongs to determine the character of such acts, as well as the nature and extent of the evil, and the , , _ . mode and measure oi redress r
    
      “Be it therefore enacted by the Senate and House of Re°f ^16 State of South Carolina, now met and sit-^nS *n General Assembly, and it is hereby enacted by the vtáhoñty °f $le same, That a Convention of the people of the said State shall be assembled at Columbia, on the 3d . in November next, then and there to take into con- .... , _ . _ the several acts oi the Congress oi the United States, imposing duties on foreign imports for the protection of domestic manufactures, or for other unauthorized obJects > io determine on the character thereof, and to devise means °f redress; and further, in like manner, to take consideration such acts of the said Congress laying duties on'- imports, as may be passed in amendment of, or substitution for, the act or acts aforesaid; and also all other laws and acts of the Government of the United States, which shall be passed or done, for the purpose of more effectually executing and enforcing the same.”
    A Convention accordingly assembled at Columbia, in November following, and passed an Ordinance “to Nullify certain acts of the Congress of the United States, purporting to be laws laying duties and imposts- on the importation of foreign commodities.” Congress having after-wards, by an act, provided for “such a reduction and modification of the duties on foreign imports, as ultimately to reduce them to the revenue standard,” the Convention again assembled in March, 1833, and repealed their Ordinance of November preceding; but at the same time passed an Ordinance “to Nullify an act of the Congress of the United States, entitled ;An Act further to provide for the collection of duties on imports,’ commonly called the Force Bill.” A separate clause of this Ordinance is in the following words
    
      “We do further Ordain and Declare, That the allegiance of the citizens of this State, while they continue such, is due to the said State; and that obedience only, and not allegiance, is due by them to any other power or authority, to whom a control over them has been, or may be delegated by the State; and the General Assembly of the said State is hereby empowered, from time to time, when they may deem it proper, to provide for the administration to the citizens and officers of the State, or such of the said officers as they may-think fit, of suitable oaths or affirmations, binding them to the observance of such allegiance, and abjuring all other allegiance ; and also to define what shall amount to a violation of their allegiance, and to provide the proper punishment for such violation.”
    By an Act of the Legislature, of December, 1833, entitled “An Act to provide for the military,organization of this State,” it was, amongst other things, enacted, that, “In addition to the oaths now required by law, every officer of the militia here, after 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.”
    On the 28th February, 1834, Edward M’Cready, the relator in the first case, was elected Lieutenant of the Washington Light Infantry, a military corps in Charleston, and applied for his commission. The defendant, Col. Hunt, the commanding officer of the Regiment,'refused to grant it, unless he would take the above oath. This the relator refused to do ; but tendered the oath prescribed in the Constitution of this State, and applied to Mr. Justice Bay, at Chambers, for a rule, to show cause why a writ of mandamus should not issue, commanding the defendant, Col. Hunt, to deliver to the relator his commission.
    His Honor, on hearing the case, delivered the following judgment :
    “The suggestion filed in this case states that the relator, Edward M’Cready, was, on the 28th day of February, 1884, duly elected first Lieut, of the Washington Light Infantry, a Volunteer Company attached to the above named 16th Regiment, in the 4th Brigade of the South Carolina Militia — And that after being thus elected, he applied, on the first day of March, 1834, to the above Benjamin F. Hunt, Col. of the said 16th Regiment of Infantry, for his commission as first Lieutenant of the said Company, which the said Col. Hunt refused to deliver to him, without any just or lawful cause. Wherefore, the relator prays the Court to grant him a Writ of Mandamus, to be directed to the said Colonel Hunt, and all others whom it may concern in refusing to deliver to the relator his commission — and commanding him and them to acknowledge your relator as rightfully entitled to exercise the said office of Lieutenant of the Washington Light Infantry, aforesaid — And the relator further prays for such other and further relief in the premises, as to the Court shall seem meet, &c.
    To this suggestion Col. Hunt, the Respondent, comes in and showeth that he has duly received the returns of the Officers who held the Election for Lieutenant of the Washington Light Infantry, by which it appears that the said Edward M’Cready was duly elected to that office ; and has been requested to commission him accordingly. That the said Edward M’Crea-dy, at the time of his demand for the commission, tendered him an oath, sworn to before a Magistrate, in the form prescribed by the Constitution of this State, which oath is attached to the respondent’s answer to the suggestion. And for cause why he refused to commission the said Edward M’Cready, the respondent sheweth that the authority given to the Colonel of a Regiment, to issue commissions, respondent considers purely executive ; and that he is bound to do what he presumes the Governor would do, if he had acted directly.
    That by the 12th Section of the Act of the Legislature entitled “An Act to provide for the Military Organization of this State,” the officer, whose duty it shall be to issue a commission to any person elected or appointed to any office in the Militia, is bound to require an oath prescribed by the 10th Section of said Act, in addition to the oath tendered by the said Edward M’Cready — and he refusing to tender or take such oath, respondent does not consider himself at liberty to exercise his own judgment on the legality of the requisition, but on the contrary, that he is bound to adhere to the letter of the Act: respondent believing that the power to commission, which is entrusted to Colonels of Regiments, is for convenience only, and that the power of commissioning Officers is in the Governor of the State. Respondent, therefore, shews for cause why he refuses to commission said Edward M’Cready, that the said Edward M’Cready refuses to take the oath prescribed by the Militia Act entitled, “An Act to provide for the Military organization of this State.”
    From the foregoing suggestion on the part of the relator, and the answer of the respondent, it would appear that the only point in this case was M’Cready’s refusal to take the oath required by the late Militia Act — and whether, finally, his refusal was such a good and valid objection as justified Colonel Hunt in refusing to give him his commission.
    It is true that Colonel Hunt has stated in his answer that Mr. M’Cready had tendered him an oath, sworn to before a Magistrate, in the form prescribed by the Constitution of this State. Upon looking into the State Constitution of 1790, the 4th Article is in the following words :
    “ 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.”
    
      This, then, is the Oath tendered by the relator to Coi. Hunt, to justify him in demanding his commission, and is obviously the oath intended by the Constitution to be administered to the Judges, Chancellors, and all the Public officers of the State, upon entering into and upon the duties of their offices, and has no relation whatever to the Military or Militia Officers of the State; for the preceding article immediately before, to wit, the 3d Article, had just prescribed the manner in which public Officers should be chosen, and their tenure of office, &c. &c. — and immediately following-» the 4th clause prescribes the oath of office, above mentioned.
    It is obvious, therefore, that this was not the oath meant or intended by the Act of 1833, to be administered to the Militia Officers, upon taking commissions in the Military lino; it is, therefore, clear, that although tendered to Col. Hunt, it did not entitle the relator to his commission, as first Lieutenant in the Washington Light Infantry.
    The respondent, in his answer, further states that jthc said Edward M’Cready refused to take the oath mentioned ¡n the 10th section of the late Act providing for the Military organization of this State, and, therefore, for that cause he refused to give him his commission. But although the respondent states in his said answer, that the relator refused to take the said oath, yet he has assigned no reason for his refusal to take it; so that, in common cases, we might well conclude, and stop here, upon the defendant’s refusal, without cause, to take the oath, and dismiss the present application.
    But it has been alleged by the advocates of the relator, that this oath, prescribed by the Act of 1833, is a nullity, because it conflicts with the constitution of the United States, as the supreme law of the land — yet it has not been pointed out how it contravenes the Constitution of the United States, or how and in what manner the laws of South Carolina are to be regulated by the Acts of the United States. We are, therefore, left to the obvious powers of our State Constitution, and civil authorities, to justify the oath prescribed by the act of 1833.
    It will not be denied, but that by the Declaration of Independence, on the 4th July, 1776, the thirteen colonies of Great Britain, from New Hampshire to Georgia, inclusive, became Independent States 5 the words of that celebrated instrument are too clear and forcible to be misunderstood ; they are the following: [after reciting the causes of the separation in the most animated language Jo be found on the page of history] “ We, therefore, the Representatives of the United States of America, in General Congress assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name and by the authority of the good people of these colonies, solemnly publish and declare, that these United Colonies are, and of right ought to be, Free and Independent States. That they are absolved from all allegiance to the British Crown, and that all political connexion between them and the State of Great Britain, is, and ought to be, totally dissolved ; and that, as free and independent States, they have full power to levy war, conclude peace,, contract alliances, establish commerce, and to do all other things which independent States may of right do,”
    By this celebrated declaration, then, South Carolina, with the other colonies, became a free, sovereign and independent State, and from this period all power and sovereign authority became vested in the people of South Carolina, (one of them.) as a free and independent nation.
    The people then, and from thence forward, had the right of establishing a Constitution and form of Government, to suit themselves and their posterity, of forming alliances, and of doing all other things to promote their prosperity and happiness. And they soon after, in consequence of these powers, among other things, formed the present State Constitution and form of Government, consisting of Legislative, Judicial and Executive powers, which, from time to time, have all been occasionally exercised and improved, so as to promote the happiness of the people of South Carolina.
    In the distribution of the powers of this Constitution or Government, the Legislative power was divided into two branches, a Senate and House of Representatives. To these bodies, thus constituted, all powers of Legislation, or the authority of making Laws, was particularly consigned and confided. And to the enactments of these two Houses of the Legislative bodies framed by the Representatives of the -people, the citizens, and all persons coming to, and residing within the limits of, South C arolina, o we due submission and obedience.
    It followed, as a natural consequence, that upon the dissolution of the connexion, the allegiance, which the Colonists of this State owed to the Crown of Great Britain, before the Declaration of Independence, was transferred to the State of South Carolina ; and, from that moment, the State took its citizens, and others, under its protection, and was bound to secure to them the blessings of peace, with the security of life, liberty, and property. In return for which, the citizens became obligated to render their aid and services to the State, for its defence against foreign aggression and domestic insur. rection, whenever required by the State so to do ; and thus the duties of allegiance and protection became reciprocal, and permanent, between the State and its citizens. It may well be assimilated to the parental power of a father over his children, until they arrive at maturity, and of the respectful duties of children to a parent, while under his parental care.
    From these primary and fundamental principles, resulting from the connexion between the citizens and the State, the latter has called upon the former to afford that aid and assis. tance which is due for the common defence of all, in the mode and manner least of all exceptionable to a people bred up in the principles of civil liberty, by the late Act of 1833, entitled “ An Act for the Military organization of this State,” in which the following Oath is required to be taken by the freemen of South Carolina, the defenders of the State, viz:
    “ ‘I, A. B., do solemnly swear, (or affirm, as the case maybe) that I will be faithful, and true allegiance bear to the State of South Carolina. So help me God.”
    This oath is neither more nor less than to do the duty which every individual was bound to perform from the day of Independence — to support and defend the State in that independent state into which it had been elevated among the nations of the world ; and the man who can flinch, or refuse to perform such a duty, does not appear to be well entitled to the blessings of liberty, or the protection of South Carolina.
    
      The situation of the world had not rendered it ne-eessary for the State to call upon the military men of South Carolina to take this oath, until the present period,.when , , . the idea of consolidation had become so prevalent m many portions of the United States.' And since the Presi. dent’s proclamation has held out the doctrine, that the primary allegiance of the citizens was transferred to the United States in the first instance. But although the call has been deferred to the present period, the obligation always existed; and when called upon by law, the duty of the citizen commenced; and this duty appears so reasonable and just, that it appears difficult for any man of cool and calm reflection to refuse his assent to it.
    I have now given briefly my opinion on the powers, as well as the reasons and causes, which led the legislature of South Carolina to require that the present oath should be taken: in seven or eight States, I am informed, this oath of allegiance has been established and taken by the citizens for many years past; but it was reserved for the present day for a portion of the militia officers of the State of South Carolina to refuse to take the requisite Oath ; probably upon the unfounded assumption of power contained in the above Proclamation of the President of the United States.
    I now turn to another branch of this case, to see, or endeavor to find out, how it militates against the Constitution of the United States as the supreme law of the land. The advocates for consolidation have not, however, pointed it out, or shewn how the principles of this Oath of Allegiance, or the Act of the Legislature requiring it, operate against the Constitution of the United States ; or by what authority the latter have a right to interfere with the domestic regulations or internal laws of an independent State in the government of its citizens.
    It will be admitted on all hands, I presume, that the different States, after the Declaration of Independence, had a right to form alliances, and do all Other acts which Indepen-deiit States of right ought to do. In consequence of these iights in the Great Charter of American. Independence, the <ftff'eren*: States of America did form an alliance, and coi^ federated together, for the purposes of offence and defence, by what was called the Old Confederation, which kept them united together for several years. But this act of confederation proving defective in many important particulars, the Present Constitution of the United States was formed by the S8VeraI States, for the more perfect Union of the States, establish justice, insure domestic tranquility, to provide for the common defence, promote the general welfare, and secure the blessings of liberty to the citizens of the Union, and their posterity.
    By this grand, national compact, the powers vested in it are all specifically defined ; and all laws made, or to be made, must be regulated by the powers thus delegated by the States to Congress, before they can be considered as the supreme law of the land ; and any law not made in conformity to, the powers thus given by the States, is, « ipsa fació,” null and void.
    But this Constitution leaves the respective States in full possession of the powers of independent Nations, except those given by the States to Congress ; and this instrument, which may well be assimilated to a well drawn Power of Attorney, in which the Principals making it are empowered to give authorities, to perform acts, or to exercise rights, which the agents are empowered to do, or perform ; but if such agent travels out of his powers, to do acts not autho" rized in his power, such acts are not authorized, but become null and void. — Now I know of mo Act of Congress, or any article in the Constitution, which operates against the late Act of 1833, or contravenes the Oath of Allegiance which it requires: certainly none is expressly given.
    The only express power which this Constitution gives over the Militia of the States, is that contained in the 8th Section of the first Article of the Constitution, which, among other things mentioned, declares that Congress may provide for the calling forth the Militia to execute the laws of the Union, suppress Insurrections, and repel Invasions.
    To provide for organizing, arming, and disciplining the Militia, and for governing such part of them, as may be em* ployed in the service of the United States '; 'reserving to the States, respectively, the appointment of the officers, and the authority of training the Militia -according to the discipline prescribed by Congress.
    This authority given to Congress, only authorizes for the calling out of the Militia in times of peril and danger, and of arming and exercising of such parts of them as may be employed by the United States, conformably to the rules of Congress ; but every thing else is reserved to, and left with, the States respectively, according to. the laws of the same.
    Upon the whole of this case, therefore, I am of opinion that Col. Hunt was well warranted in refusing the relator his commission in the Washington Light Infantry, as he had refused to take the oath prescribed in the 10th section of the Militia Act.
    
    The motion for the Mandamus is therefore dismissed.”
    The relator appealed, and moved this Court to reverse the decision below: and to make the rule absolute, on the following grounds:
    First, That it is a violation of the Constitution of this State, to require the appellant to take the oath contained in the Military Bill; because the 4th Article of the Constitution declares, that “ All persons who shall be chosen or appointed to any office of profit or trust, before entering on the execution thereof, shall take the following oath:—
    ‘T do swear or affirm, that I am duly qualified, according to the Constitution of this State, to. exercise the office to which 1 have been appointed, and will, to the best of my abilities, discharge the duties thereof, and preserve, protect and defend the Constitution of this State, and of the United States.” And that so much of the Military Bill as goes to add to or alter the foregoing oath, or to impose any other oath of office, is, therefore, unconstitutional and void.
    Secondly, -hat the authority of the Legislature to enact the oath contained in the Military Bill, cannot be derived from the Ordinance of 1833, for the following reasons:
    1. That the terms of the Ordinance are not pursued, nor its authority referred to, in the enactment of the said oath; nor does it appear with certainty, that the oath contained -Military Bill, is an oath binding the citizens to the observance of such allegiance as the Ordinance defines.
    2. Because the Convention did not authorize, and in fact could not authorize, the Legislature to overrule the Constitution, by changing one of its articles, without conforming *-° *be rubi by which all amendments to the Constitution must take place. And for this proposition, the appellant. bas *-he authority of the same Legislature, who, by bringing in and passing a bill to change the Constitution ia this behalf, have confirmed and ratified this construction.
    3. Because the Convention, in undertaking to define allegiance, and to establish a Test Oath, exceeded their powers, as those matters are not within the objects for which they were called.
    4. Because the Ordinance itself is clearly repugnant to the Constitution of the United States, and therefore null and void.
    On the 11th April last, James M’Daniel, the relator in the second case, was elected Colonel of the 27th Regiment, and applied for a commission. The defendant,. G.en. M’-Meekin, the commanding officer of the Brigade, tendered him the oath required by the late Military Act, and on his refusal to take it, refused to grant the commission; and therefore the relator obtained a rule to show cause why a mandamus should not issue.
    The case was heard at Lancaster, Spring Term, 1884, before Mr. Justice RichaRD.sow, who held, that the oath required by the Act was unconstitutional, and made the rule absolute.
    The defendant appealed, and moved this Court to reverse that order, on the following grounds:
    1. Because the relator refused to take the oath required by the 10th sec. of the Act entitled “An Act to provide for the military organization of this State,” to be taken by every officer of the Militia to be elected after the 19th December, 1833 — - which oath was a mere acknowledgment of the peculiar and exclusive obligation which he owed to the government of the State, in its character of original and ultimate proprietary of the soil: and not in virtue of any supposed political supremacy, either in reference to its own citizens or any other power; and which oath it was competent to the Legislature to. require.
    2. Because, admitting the incompetence of the Legislature, in its ordinary forms, and under ordinary sanctions, to require such an oath, it was rendered competent, by the authority of an ordinance of a Convention of the people of this State, entitled “An Ordinance to nullify an Act of the Congress of the United States, entitled “An- Act further to provide for the the collection of duties on imports,” commonly called the Force Bill,” passed in Convention, on the 18th March, 1833.
    3. Because the authority of a State Court, as a department of government established by the Constitution to interpret and enforce the laws of the State, is incompetent to supersede or annul an ordinance of the Convention of the people of the State, the power of which is paramount to the Constitution, and to all departments of its government; and that no such Court can use “the name and authority” of “the process of the State of South Carolina,” to arrest, delay, or hinder the execution of a law passed in pursuance of the authority of the Convention of the people of the State of South Carolina. Constitution of South Carolina, Act 3, sec. 2.
    4. Because, admitting the jurisdiction of the Court over the Ordinance, the oath prescribed by the Act passed in pursuance of it, is consistent with the Constitution of South Carolina, and not repugnant to the relations which the State or its officers bear to any other government or power.
    The first case, (M’Gready v. Hunt) came before this Court at Charleston, in March; and after being argued there, by Mr. Grimke and Mr. Pettigru, for the.' relator, and the Attorney General and Mr. Finley, for the defendant, it was adjourned to Columbia, May Term, when the argument was continued by Mr. Blanding and Mr. M’Willie, on the part of the relator, and the Attorney General and Mr. Finley, contra. The last case was argued at Columbia, in connexion with the first, by Solicitors Player and Thompson, for the defendant, and Mr. Williams, for the relator: both cases de« Pen&ng 011 the same principles, and making the same questions, were argued and adjudged together. As the questions involved in the consideration of these cases are of great public interest, and the principles brought into discussion, of paramount importance, the Reporter has presented tbe argument of each of the counsel in extenso, except that ^1'- Solicitor Thompson, which he regrets he has not been able t0 obtain.
    MR. GRIMKE’S ARGUMENT.
    
    I deeply feel the responsibility of my station. I feel that it is not only my friend, the relator, who summons me here, but that I come to speak in behalf of all who think with him. I feel that 1 represent not them only, but even those of our fellow-citizens who differ from us; and I know there is not one of them who does not rejoice, that this subject is to be discussed calmly, fearlessly. I feel that I stand not here in a private, but in a public cause; not in the name of a citizen, but of my country. I feel that my country is my client; that I come, as it were, by her command, to examin the acts of her Representa-tivs, and vindicate her institutions. May I speak as becomes the patriot, not the lawyer; the counsel of my country, not the advocate of private rights. The questions which I am to discuss, are of the deepest interest to the whole community. All acknowledge their delicacy, magnitude and difficulty. They involve not merely the rights of a few, but the rights of all. They arc the property of every fellow-citizen throughout our whole country. They concern each State, considerd separately, and all, con-siderd as the United States. We cannot meditate on such matters, even in the closet, without seriousness and respect; shall we then discuss them in public, but with solemn feelings and deep veneration 1 Let me then proceed in this spirit, to examin those questions, which concern us all, as men, as citizéns, as patriots.
    Our subject divides itself into two great branches. The FIRST considers the Oath in the Military Bill, apart from the Ordinance, as though this had never existed, and subjects that Oath to the test of the State Constitution. The SECOND connects the Oath with the Ordinance, and this branch subdivides itself into two parts, the first of which proceeds on the supposition that the-Ordinance is valid, the second affirms that it is invalid. This second subdivision arianges itself under two heads, both of which deny the validity of the Ordinance ; first, because it exceeded the limits prescribed in the Act calling the Convention; and Second, 'because it is repugnant to the Constitution of the United States.
    1. Let us then, first subject the Oath to the test of the State Constitution. And first, here -we are met by the allegation that ail-Legislativ authority is vested in the General Assembly, by the 1st Sec. of the 1st Art. This we deny in one sense, whilst we concede it in another. Legislativ power in Europe, and originally in this country, under the Constitutions of 1776 and 1778, embraced two great departments, the ‘political and civil. That is the permanent and fundamental late, this the fluctuating and subordinate. The establishment of a Constitution is with a view to ascertain and fix the first; the creation of a Legislature is to provide for the last. Political legislation is, then, according to our distribution of power, the peculiar ■ province of the People. Civil legislation is the appropriate ofiice of the General Assembly. The ordainment of a Constitution, under our improved systems of Government, is, therefore, of itself a withdrawal of political power, by the act of the people themselves, from the ju. risdiction of the General Assembly, and an appropriation of it exclusively to themselves. Can it be denied that the beauty and harmony of our system, theoreticaly considerd, ’justify and require this construction? And who can doubt that it is equaly indispensable, in point of expediency, to the strength and success of its practical operations ? All Legislativ authority is not then vested in the General Assembly, for they are confined to the civil department, while the political is reserved to the People.
    
    Let us next enquire, what is the character of Alegiance?— Shall we assign it to the department of political or of civil jurisdiction ? No one, I apprehend, can hesitate in deciding, that it belongs to the former, and not to the latter The relation subsisting between the individual and the community of which he is a member, belongs to the fundamental law of every Society. It is an individual, not an official relation. The Oath is identically the same, in form and character, whether taken by an individual or an officer. The addition of an Oath of office to the Oath of Alegiance, is eonclusiv on the point. No European statesman, whether of antiquity or of modern times, would doubt an instant. And how can we doubt, when under our systems, that relation involves so much more of dignity and duty in the government, of right and authority in the individual? Beyond all question, it belongs not to the branch of civil jurisprudence, but is separated from it forever by the landmarks of a Constitution, as distinguished from a law. The Constitution, then, contains the whole will of the people, on the subject of political jurisdiction, so far as they have chosen to declare it: and where they are silent, the Legislature have no authority to declare that will. — ■ Is not the very act of the Convention a striking ilustration of it ? Have not they supplied what they regarded as a defect in the Constitution, by defining Alegiance ? And have they not provided for what they must be understood to acknowledge as a deficiency in the legislativ authority, subsisting under the Constitution, by granting express power to the Legislature on the subject of Ale-giance? A~d is not this still further ilustrated by the fact, that they have conoiderd Alogiance as so appropriately belonging to the department of fundamental or political law, that they themselves have declared the will of the people, as to what Alegiance is; whilst they have only entrusted to the Legislature, the subordinate authority of framing the Oath, and providitig for its vio1a~ tion? Do not all the State Constitutions, which have been referred to, confirm, by their express enactments on the subject of Alegiance, my position, that it belongs to the department of political, as distinguished from - civil, legislation? -
    I trust, then, I may consider the principle establishd, that Ale-giance is not within the province of the Legislature. We are now prepard to examin the bearing of the different Acts of Assembly, that have been relied on, as irefragable proofs of the contrary. And first, as to Chose which were passed under the Constitution of 1778. They are not authority upon the question in its present fbrm, in our day, The Constitution of 1778 was itself but an act of Assembly. Such is its very stile. "An act for establishing the Constitution of the State of South Carolina:." The very same power, then, which ordaind the Constitution, enacted all the oaths that have been relied on in the public Laws, before 1790. They were all constitutionaly enacted; because there was no separation then, between the political and civil departments of legislation. It will be rcmarkd, that I have adduced no authority for this distinc-tiv, and in my opinion, all important feature, in the organization of our system; because the political common sense of every American, is my witness. Nor let it be forgotten, that so far as these oaths belong to the exercise of political power, they correspond exactly to the Constitution of 1778; and require no more than what is plainly warranted by that instrument. The Legislature having power over the subject, might, then, with propriety, have adopted these oaths. And this, let me request the Court to observ, is the test for which I contend, power over the subject. This, at a single glance, disposes of all the instances that have occurred, since the Constitution of 1790. The Legislature had authority to prescribe the duties of sheriffb, justices and constables. They might, therefore, lawfuly require oaths conformable to those duties. So with any other office. If the Legislature can appoint the du~ ies, they can require a correspondent oath. On the same principle, where the Constitution has established the office and declared its general character, as, for example, that of a Chancelor, as distinguished from that of a Judge; the Legislature may appoint the details of duty, being themselves civil, not political in their character; and may exact suitable oaths. In like manner, the Legislature may annex to each office, so far as the Constitution is silent,. whatever is peculiar or appropriate to each, as a measure of expediency, such as the giving of security, the amount of the bond, the number of securities, additional securities, &c. all such details belonging even to the subordinate department of civil legislation, and not at all to the political. -
    Let me, however, examin the only oaths of any consequence, since the Constitution of 1790. The oath in the Militia Act of 1794, is nothing but the oath of the Constitution ; (4th Art.) except that it adds, “the laws.” All, I presume, will acknowledge, that the obligation to obey the Constitution, includes obedience to all Ipws enacted in pursuance thereof. The Act of 1829, which compels all district officers to take an oath, that they are under no promise to share the profits of their offices with any one else, is purely civil in its character. The last oath which I shall notice, is that required of denizens, by the act of 21st Dec. 1799, 2 Faust, 273. By this law, aliens may become denizens, on tailing the oath of alegiance before a Judge. Now, to confer the rights of denizenship, is clearly within the province of ordinary legislation; because it only vests civil privileges. This, let it be remarkd, is the only act, that I am aware of since the Constitution of 1790, in which the word Alegiance is found. None other certainly has been adduced on the opposit side. And, not only is denizenship, civil in its character; but the alegiance of a denizen, like that of an alien, is local and temporary, and therefore purely civil not political. The oath, then, exacted of a denizen, under the act of 1799, is the exercise of civil not political power; and, therefore, is appropriate to the Legislature.
    mow turn to the ~cond view of the unconstitutionality of the ~atb, when tested by the State Constitution. I have denied, that the Legislature have jurisdiction over the suhject of Alegiance.-I. now grant, for the purpose of the argument, that the Legislature still retain this branch of political power. My position then is, that where the same power is vested in two tribunals, the one superior, the ~o1her inferior, if the former occupy the common ground first, this amounts to a prohibition to the latter, to interfere with it. Now, even as to independent and equal jurisdictions, this is an admitted rule. How much more authority must it then be acknowledged to have when the question is between two jurisdictions, the one independent, the creator-the other dependent, the creature. Such are the Constitution and the begisi~ture. The Constitution has occupied the ground in the mode and to the extent, which the people approved. Thenceforth it became sacred, and must be regarded as their pi'culiar province. The oath provided by the Military Bill, must therefore be rejected. "The doe-trin of the Court" in Houston v. Moore, 5 Wheat. 1, says Chan-celor Kent, in his Commentaries, 1 Vol. p 389, "was that when Congiess exercised their powers on any given subject, the &ates could not enter upon the same ground, and provide for the same objects. The will of Congress may be discovered, as well by what they have not declared, as by what they have expressed. Two distinct wills cannot, at the same time, be exercised~ in relation to the same subject, effectually, and at the same time be compatible with each other. If they correspond in every respect, then the latt& is idle and inoperativ. If they differ, they must, in the nature of things, oppose each other, so far as they d~fer." Let me add, that the Legislature cannot be sanctiond in acts of superfluous Legislation. If two acts, passd at different times, ordain the same thing, the latter, ipso facto, annuls the first; but if an act provides for the same thing for which the Constitution pro. ~`i~es, the act isr~ected as surplusagc. Acts of idle, euperfluous legislation, are nullities. If then, the Oath in the Military j,e identical with the Oath in the Constitution, this must be discarded as idle, and therefore inoperativ.
    Nor is it within the province of the Legislature, to interpret the Constitution. If the Constitution be clear, and what can be more clear than the Oath in the 4th Art., the Legislature can neither a¿d nor substitute their exposition. If, on the other hand, the Constitution be not clear, they cannot subjoin their construction; because interpretation is not within the province of tiie Legis-iaiure' They may enact laws, but cannot expound the Constitution. I know but one exception, and that under the 11th see. of Art. 1, which empowers each House to judge of the elections, returns and qualifications of their own members. But this is the exercise of the separate power of organization, not the^oini power of legislation.
    
    I now, therefore, proceed to show, that the Oath in the Constitution is not only equivalent to, and is the Constitutional substitute for the Oath of Alegiance, but is actualy of larger import. Alegiance is the tie which binds the subject to the King in a Monarchy, the citizen to the State in a Republic. In it are involvd the. obligation to obey, the duty to protect. Now, under the Feudal system, the oath is to the Feudal Lord personaly, because, for the most part, Ms will was the law. Quod principi placuit le-gis hdbet vigorem, was the,language of the civil law, and origin-aly, with very few exceptions, was equaly the rule of the Feudal Law. The service due was to him, not to the community. The social compact was between Mm on the one side, and the whole community on the other. But in our system, the compact is between all the individuals of the community, each being pledged to all the rest, and all the rest to each. The will of the community, as expressd in the Constitution, is the Law. With them Alo» giance is the tie which binds the inferwr to the superior: with us the equal to his co-equals; with them, to obey the will of the Lord, was to discharge the obligation of Alegiance: with us, to obey the will of the people, is to perform the duties of Alegiance. Hence, the Oath to “preserve, protect, and defend the Constitution,” is an Oath of Alegiance, in the most suitable form for a Republic. Is it not indeed actually more comprehensiv than the Oath of Ale. giancel The breach of this constitutes treason; but, in how many ways might the Oath in the Constitution be violated by acts inferior to treason? And we can say, with the strictest propriety and truth, in the admirable language of Lord Somers, “thejirst and highest treason is that which is committed against the Constitution.” And does not the admitted uncertainty of the crime of treason at common law, ilústrate my position, that the oath was personal to the Lord, because, for the most part his will was the law ? He, therefore, or his judges, the creatures of his will, extended it to whatever act it suited his caprice or resentment to condemn. But now that the crime of treason is so restricted in its limits, the original co-extensivness of Alegiance and treason has been exceedingly narrowd; while with us, offences against the Constitution are co-extensiv with that instrument, and even with the laws passd in puisuanee thereof. The Constitutional Oath, then. embraces all that an Oath of Alegiance can embrace ; and much more. Now upon the principles already insisted on, the Legislature cannot lawfuly put Constitutional provisions into the form of a statute, because such would be an idle, useless enactment. The Oath in the Military Bill must then be rejected as surplusage ; because the whole subject is already provided for by the Oath in the 4th Art. The direction that the Oath prescribed in the Bill shall be taken, in addition to the Oaths now prescribed by law, is as much an act of supererogation as to provide an Oath «to "obey andvindi-cate the Constitution,” or “ to do the duties required by the Constitution,” or “ that I possess the qualifications demanded by the Constitution.” All such legislativ Oaths, in addition to the constitutional Oath, would be declared nullities, as synonymous and therefore idle, or as legislativ expositions, and therefore inadmissible. If the Militia Officer were not embraced by the description (4th Art.) of persons appointed or chosen to any office of “profit or trust,” my argument would be unavailing ; because in such case, the Legislativ would not cover the same ground,, as the Constitutional Oath. But who can doubt, that every Militia Officer as such, does hold an office of trust, and some certainly as such hold offices of profit. Besides, the 21st J of the 1st Art. puts it beyond all question, by declaring, that no person shall be eligible to a seat in the Legislature while he holds any office of profit or trust under this Stale, &c. except officers of the Militia, &c. The Legislativ Oath is-then idle, and, must-be rejected as inoperativ.
    I proceed now to offer the clearest and strongest proofs that tho Oath in the Constitution is an Oath of Alegiance. I have already establishd it, I think, by reasoning: let me now strengthen that reasoning, by the testimony of our own history. The Constitution of 1776, Art. 33d, neither required an Oath of Alegiance in form to South Carolina, nor the abjuration of Alegiance to the British King, but required the Officer to swear that he would “ support, maintain and defend the Constitution,” until an accommodation should take place, or he should be released from the Oath “by the Legislature of the Colony.” Nor can it be doubted, that for all the purposes of a Revolutionary Congress and Constitution, this was intended to be and actualy was an Oath of Alegiance. Had not that Congress taken all the power of King and Parliament into-their own hands, and would they not have hung any man, who after taking the Oath, should have borne arms against them 1 Would they not reciprocaly have protected any one who, having taken it, and been faithful, should have been proceeded against by George the 3d, as a traitor to him ? Can any one doubt an instant the truth of either position? Again, the Constitution of 1778, Art. 36th, though it requires abjuration of Alegiance to George the 3d, and a declaration that the People of South Carolina owe him no Alegiance; yet it requires no Oath of Alegiance to them or the State, or the Constitution, but simply an Oath to “ support, maintain and defend the said State against the said King,” &c. Now, both people and officer, I speak of inhabitants on the 4th of July, 1776, owed Alegiance before this to George. They owed it not as a community, ealld a Colony; but individualy as subjects. To whom then was the Alegiance, formerly due to the King and now abjured, transferrd by the Revolution? Did it exist no where? Was it due tono one? Do we doubt, that on the principles already explaind, it was transferrd to the State : and was due by ea°h one People t° oil die rest of the People ? Our State political history teaches us, then, that the form of the Oath, “ to protect the Constitution,” “ to protect the State,” is, ex vi termini. an Oath of Alegiance.
    Let us now ilústrate our position by the political history of the union. The Congress of the Revolution, on the 21st of October, 1776, required of all officers in the service of the Continent a declaration on oath, that the thirteen United States were free, independent and sovereign Stales, that the people thereof owed no Alegfance to George third ; that they abjured all Alegiance to him, and that they would defend them against him, &c. See 2d vol. Journals of the old Congress, p. 40Q-. Now, take the case of a British subject coming over after 1776, receiving a commission in the Army of the United States, and taking this Oath. All will agree, that if he had taken a purely voluntary ex parte oath, not prescribed by any law, it would have amounted to nothing. But the Oath in question, as far as this country, was concernd, was not such. It was a contract between the United Slates and the officer, binding them to protect him as much as a nativ, binding- him to serve them as much as though he had been born in one of the colonies. His abjuration of Alegiance took effect, because there was a substitute, the United States, capable of receiving it. He forfeited the protection of the British King, and became, at the instant of abjuration and transfer, entitled to the protection of the United States. Did he not then, by virtue of the Oath, owe as perfect an Alegiance to the United States as ho had formerly owed to the King? Was he not, by virtue of the same Oath, entitled to as perfect a protection ? On the 3d of February, 1778, Congress, as appears in the Journals, 4th vol. p. 49, 50, substituted for the Oath of October, 1776, another, identical with it, in all the particulars above noticed. Thus the political history of the Union concurs with that of South Carolina in proving that the Oath in the Constitution of 1790, has all the force and virtue of an Oath of Alegiance. If South Carolina has only the merit of giving the second written Constitution, 'heps being dated 26th March, 1776, and that of New-Hampshire, 5th January, 1776) yet she has the high merit of having set the example of this truly republican and comprehen-siv form of the Oath. In all probability, to that example and to her influence in the counsels of the Union, must be ascribed the adoption of the congressional form of 1776 and 1778. And if the example of the States of antiquity, so often appeald to on questions respecting liberty and popular institutions, be of any avail, we may refer to them as sanctioning the Carolina and the Federal, as dis-tinguishd from the practice of feudal times, and of many of the other States m the Union. Under the institutions of Solon, the Athenian Archqns took an Oath “ to observe the laws,” and all the Roman Magistrates were required to swear, “that they would observe the laws.”
    
      I have thus presented the argument under tho Constitution of the State ; and have insisted that the Oath in the Military Bill was repugnant to it; because the Legislature had no power over the subject, or if they had power, still that the jPeople had executed the identical power in the form and to the extent, that they judged advisable — and this of itself excluded any interference by the Legislature. Let us now grant, however, that both of these positions are incorrect: that is, for the sake of pursuing the argument, let us grant that the Legislature had the power, and that the action of the Convention of 1790, on the same subject, in the 4th Article ot the State Constitution, did not amount to a prohibition of any Legislate interference — still I contend that the Oath, in question, must be referrd for its meaning and force to the Ordinance or March, 1833. This position is easily demonstrated. We find the word Alegiance in the Act of December, 1833, for the first time in the legislation of South Carolina, since the Constitution of 1790, with the single exception of the use of it in the Denizen Acts. In these we have already demonstrated, that it means only a local, temporary Alegiance, and this, it will be conceded, is not the sense in -which the word is used in the Military Bill. We must then seek the interpretation of the term either in the English law or in the Ordinance. But Alegiance in the English law is the relation of subject and King; it is a personal relation- to the Monarch, not to the Government or State; it is a relation that supplies all the deficiency’s of an unwritten uncertain Constitution, not the relation that springs out of, and is subordinate to, a jixd written Constitution. Nothing therefore but the total silence of our own law on the subject, could justify a reference to the law of Alegiance in England. Let us put a case, not as strong as the one in question. Suppose a former Act of Assembly had defined the sense in which any particular term in the law was to be understood, and that a subsequent Act, even without any allusion to the previous statute, had used the same term, would any judge or lawyer doubt, that the meaning of the word, in the second law, must be sought in the definition enacted by the first ? And if the word wore familiar to British jurisprudence, yet it is clear that we could not resort to English books to determin its sense, for if the signification settled by our statute were either more or less than the meaning found in English writers, we must of course, be governd by our statute ; and if both coincided, still we should refer to our own Act, as of higher authority than British text books. Now, if the Ordinance were but an act of assembly, all must agree, on the principles thus ex-plamd, that we must be governd by its interpretation, more espe-cialy too, as all will acknowlege, that the Ordinance is not identical on this subject with British law. But the Ordinance of a Convention is of higher authority than a mere Act, for all must agree, that whether it is above or co-ordinate with, or even inferior to the Constitution, still it is superior to a mere statute. Is it not then still more manifest, that we are constraind to seek for the meaning of the word Alegiance, in the Ordinance, and only there? Have we not, on this subject, a case so remarkably paralel, that wo rely on it as conclusive Treason is defined in the Constitu- ■ tiou of tho United States. It is aftewards used in acts of Con-, gress. Does any one question that we must determin what shall amount to treason under the act, by the Constitution ? If, indeed, the Constitution had employd the term, but without defining it, we must have resorte.d to the English Law to fix it, on the same principle that the Supreme Court, in 22a; pane Bollman and Swart-wout, 4 Granch, p. 93-4, referrd to English law, for the meaning of the term Habeas Corpus, used in, but not defined by the Constitution of the United States. Assuredly, if Alegiance had been defined in our State Constitution, we should not doubt a moment. How then can we doubt, since the Ordinance is undoubtedly superior to an Act of Assembly, whatever may be its rank compared with the Constitution itself. If, then, the oath in tho Military Bill be adjudged on my first ground, not to be repugnant to the Constitution of South Carolina, nor to be overruled by it on my second, still we must compare it with the definition or description of alegiance in the act of tho Convention, and this, of necessity, opens to us the whole subject of the Ordinance, as a warrant for the enactment of the oath in the M litary Bill.
    II. 1 proceed now, therefore, to examin the Ordinance; and shall, in the first place, under this second grand division of our subject, admit, for the sake of the argument, that the Ordinance is valid. This concession gives rise to the enquiry- — Is the Ordinance an authority for the oath? Í deny that it is, on two grounds — first, because the 10th section of the Military Bill, containing the oath, is not an execution of the power conferrd by the Ordinance: and second, because the Military Bill is actualy the execution of a totaly different power.
    First. I deny, then, that the tenth clause of the Bill, “ to provide for the Military Organization of the State,” is an execution of the power conferrd by the Ordinance. Our first inquiry is, what is the power conferrd? and next, whether any discretion is given in the exercise of the power? It is conceded, that the power given, refers to an Oath of Alegiance. It cannot be doubted, that the Convention intended to determin the character of, Alegiance. They did not mean to leave the question unsettled— “what alegiance is due to the State of South Carolina?” They meant to settle the question as far as- State authority could settle it. The true character of the alegiance due to the State, as declared by the Ordinance, will be Best considerd in a subsequent part of my argument. I shall now assume, for the sake of the argument on this branch of the subject, and the opposit counsel themselves contend for it, that the Ordinance means to declare, and does declare, that all the alegiance of the citizen is due to the State, and that none is due to the United States. Nor is this all ; the Convention knew, and every one knows, for it is a part of the history of the times, that great numbers in South Carolina held that they owed alegiance to the United States, as well as to the State. Hence, the last part of the Ordinance, which provides for the abjuration of all other alegiance. The Convention then had two objects to be executed. 1st. To exact of each officer and citizen, an oath of exclusiv undivided alegiance to the Slate, 2d. To exact of each an abjuration of any alegiance to the United States. These two objects realy constitute but one complete object or plan. Have they not executed them, so far as depends on themselves: and could they have meant to leave the Legislature at liberty to defeat their object, by giving them power over the nature, character and extent of alegiance 1 Could they have intended to say to the General Assembly — “we think one thing, and that we mean to insist upon and enforce; and yet, you may judge for yourselves, whether you will or will not conform to our opinion, and carry it into effect by a legislativ enactment”!— Does any one believ this! Assuredly no one. The power con-ferrd to make laws, must be referrd to the undoubted object and meaning of the Convention; and the laws must execute that intention, and correspond to that object. I do not contend for any formalities in the execution of the power, nor yet for any recital of,_ or reference to the power. But I insist on a compliance, in spirit and substance, not m letter and form. Now, without even looking into the Ordinance, we should conclude, from the history of the times and the known object of the Convention, that they would not have entrusted the Legislature with any discretion at all over the subject of alegiance, still less over its character, nature and extent. And when we turn to the Ordinance, it seems to me impossible to doubt, that they meant to give and did give to the General Assembly only the subordinate power of providing the form. It will be observd that they did not even confer on the Legislature the power'of selecting the mode or means of attaining the object; for they themselves expressly declared that it should be by oath. They accordingly ordained as follows — “ that the General Assembly of the said State is hereby empowered from time to time, when they may deem it proper, to provide for the administration to the citizens and officers of the State, or such of the said officers as they may think fit, of suitable oaths or affirmations, b.nding Ihem to the observance of such allegiance.” The Oath to be prescribed by the Legislature, is then to be an Oath of such alegiance as the Ordinance declares to be due to the State, viz. exclusiv alegiance; for the force of the word' such, requires that we should understand it to supply the place of what had gone before on the subject of alegiance. Is it not then plainly the same, as though the Ordinance had said — “binding each one to declare on oath, that his alegiance is due only to the State, and that he owes no alegiance, but only obedience, to the United States.” Would not such an Oath be admitted to be a substantial compliance 1 Is the Oath in the Military Bill any thing like it ? But this is not all. The Oath in the act is no execution of this part of the Ordinance; because the Ordinance is so particular and decisiv ; while the Military Bill is so general and uncertain. The Ordinance declares that the alegiance of the citizen is due to South Carolina; but the Oath merely binds the citizen to bear true alegiance. Now, the alegiance means, by the very force of the definit article, “the”, all — the whole alegiance ; but, to bear alegiance, is perfectly indeterminate — and leaves the very question of divided alegiance open, when the Con-rontion intended to settle, and thought they had settled it forever. But, besides these proofs, that the act does not execute the Ordinances as to the nature and extent of alegiance, there is another fatal ob-jeetion. The Legislature is cropoiverd to provide the Oath, but it must be an Oath, binding them “ to the observance of such allegiance, and abjuring all other alegiance.” The Oath, therefore, must be affirmativ, as declaring exclusiv alegiance due to the State, and negativ, as denying that any is due to any other power. Now, the negativ is inseparable from the- affirmativ declaration. The two together make up’ the one object of the Convention. Both must be executed, or nothing is done. But the act does not attempt to touch the subject of abjuration, and is, therefore, no execution of the one single object of the Convention.
    But the argument stops not here. The Ordinance haa vested a discretion in the General Assembly as to some matters: and that fact, together with the nature of the subjects, over which the discretion is granted, proves conclusivly, that no discretion whatever was intended to be granted over the princpal matter, the nature and extent of Alegiance to the Stale, and the abjuration of all other Alegiance. Discretion is given in three particulars. 1st, as to the lime, the Oaths may be admmisterd, “from time to time, when they may deem it proper.” 2d, as to the officers, “ or such of the said officers as they may think fit.” 3d, as'to the form, they are to provide suitable Oaths, i. e. clearly in any shape the Legislature may approve; but still they must he suitable to the attainment of the one single object, consisting of two parts, the negativ and affirmativ declarations already noticed. Now, observ that these are subordinate things, mere matters of detail. The grant of discretion as to inferior matters, is one of the clearest and strongest modes of with-.olding discretion, as to superior matters. The 10th Sec. of the Military Bill is then demonstrated not to be an execution of the power conferrd by the Ordinance, either in letter, or spirit, in form or substance.
    I pass on now to the second subdivision of the argument against the Oath, as an execution of the Ordinance. I have shown, I trust, that it does not correspond either in form or substance, in letter or spirit, to the requisitions of the Ordinance. I shall now endeavor to show, that it is the execution of a lotaly different power. Under the Constitution of the United States, Art. 1, Sec. 8, Clause 15, Congress have power to organize, arm and disciplin the Militia, and to govern them, when in the service of the United States, but to the States is reservd the power of appointing the officers and of training the Militia, according to the disciplin prescribed by Congress. The States have also, by virtue of their general legislativ authority, ali power over the Militia, not granted to Congress, and, according to the opinion of the Supreme Court, in Houston vs. Moore, 5 Wheaton, 1, they have a right to exercise the very powers granted fo Congress, until Congress shall have actualy exercised them. Now the Oath is but a small part of the Act.; a very minute portion of an entire system. The system, viz. the Military Organization of tho State, is to be referrd to the ordinary legislativ power over the Militia, and to the Constitution of the United States, coupled with the Act of Congress of May, 1792. This is the more apparent, because the Acts of May and December, 1794,1 Faust, p. 305 and 347, are expressly referrd to the Act; of Congress. Now the Act of December, 1833, for the Military organization of the State, is little more than a re-enactment of the Acts of 1794, with modifications suited to the present state of things, and to the éxisting State policy. If the Oath had been in a separate Act, and 'the xmly thing in the Act, it might have been referrd to the Ordinance, but it is undeniably a part of a system, and must be re-ferrd, if it can be, to the same source of power as the system itself. The precedent for making the Oath a part of the system, is found in the Act of December, 1794, which prescribes an Oath to Militia officers. The exercise of this power was thus known to the law before, and therefore without the Ordinance, we can readily account for the Oath. The 10th Sec. of the Military Bill requires the officer to take the Oath following: — “I, A: B. do 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.” 1 have found no other Oath for Militia officers provided by law, and the fact of providing this Oath, with its contents, seems to intimate very clearly, that the General Assembly of 1794, did not consider officers of the Militia, as embraced by the 4th Article of the Constitution of South Carolina, otherwise they would scarcely have provided such an Oath for that class of persons.
    It seems hardly necesary to notice an argument on the other side, in favor of the Oath as an execution of the Ordinance. It is said that the partial execution of a power is good. Grant it — yet this is not a case of partial execution, but a substitution of one thing for another; of general Alegiance for exclusiv Alegiance ; and Ale-giance without, for Alegiance with abjuration. To select a particular class of Officers, as Justices, Constables, &c. would be a case of partial execution ; to have required the Oath for one year would have been another instance. But an Oath mihout qualification is not equivalent to an Oath with. So fair from being a partial execution of a general power, it is as far as such a thing can exist, a general execution of a specific power. But let us grant for the sake of the argument, that this Oath is an execution of the power con-ferrd by the Ordinance, and that the Act itself is not to be referrd exclusivly to the power of the Legislature over the Militia, still we áre carried back inevitably to the 'character of Alegiance under the Ordinance, and to the constitutionality of the Ordinance itself, under the Constitution of the United States.
    Let us now take up the second subdivision of our subject, as to the Ordinance. The first admitting it to be valid, but denying the Act to be any execution of it, we have just examined. The second, upon which we now enter, denies its validity on two grounds. 1st, because it exceeded the limits prescribed in the call of the Convention. And 2d, because it conflicts with the Constitution of the United States.
    First. The Ordinance exceeded the power conferrd by the call of the Convention. Let me here dispose of the preliminary objection, that the Convention was unlimited in power. I am reminded that all power, according to the political systems of America, is in the people, and it is affirmd, that the Convention must be regarded as the people. I deny that the people possess unlimited power. I deny that the Convention was or can be regarded as the people.
    First. The people are not invested with unlimited power. It is impossible that this can be true of the people ; when-it is not true of the individuals, who form the people. Take a single man on a desert island. Is he-unlimited in power? that is to say — not—has he ihfinit power? but is he under no restraint, as to the exercise of his moral and physical powers? Can he lawfuly commit suicide? Can he lawfuly curse 'his maker, for permitting him to be cast-away ? Can he lawfuly swear eternal hatred against the captain or pilot, Whose carelessness caused his shipwreck, or who wilfuly abandoned him on the island ? If another man be left, or east away there, can he lawfuly rob, wound and imprison the second comer ? If he sees him perishing, can he lawfuly leave him to die of hunger or thirst, or to be devourd by wild beasts ? Again, is he not to consult his own good and the good of that other ? Can he lawfuly ruin his own health, or that of the other! Can he lawfuly break his, own limbs, destroy his own senses, or lop off his own hand or foot ? Or can ho do the like to the stranger ? The individual then is bound to consult his own good and to do good to another ; to preserv and improve his own faculties and senses ; to love and fear, to worship and serve God, according tp his knowlcge of him ; and to aid the new comer in the same things. In a word, the individual, alone and out of society, is the subject of moral obligation. He is not vested with irresponsible power, as to life, health -or any thing else. The instant society commences by the meeting of two individuals, that instant the obligations o'f each to himself are extended to the other. Social and relativ are added to individual obligations. If we add a third, a fourth, a fifth, and so on, we only mullifly the number without changing the character of the obligations of each. As the community enlarges, the necessity arises of a social law ; but it is ROUNDED ON THE INDIVIDUAL AND SOCIAL OBLIGATIONS OR EA'CK AND ALL ; IT IS NOT THE LAW OR CAPRICE OR DESPOTIZM ; IT IS the law or duty. The social law must still provide, as far as it can, for the duties and welfare of each.
    Let us now observ that man never has existed out of society. The case o'f Adam, before Eve^s creation ; of a voluntary hermit; of involuntary solitude, as in the instance of Alexander Selkirk, are only exceptions, that add strength to the position. Our first parents had their law of duty : the first family had a law of duty : the first patriarchal society had their law of duty: the first tribe had its law of duty : the first nation had a law of duty: the first community of nations had their law of duty. Each and all acknowl-eged a law of duty, individual and social: of duty to God, their fellow men and themselves. None ever pretended to a capricious, despotic, uncontrold power. The only foundation then or POWER, IN THE INDIVIDUAL, IN THE FAMILY, IN THE TRIBE, IN THE NATION, IN THE COMMUNITY OR NATIONS, IS DUTY. No POWER IS LAWFUL, THAT DOES NOT FLOW FROM DUTY. POWER IS the gift of God — not the creation OF Man. In the individual, it is the result of his mental and bodily faculties. In a community, it is the result of a combination of intelectual .and physical strength. But the faculties of the individual are coñfferrd by God, not to be employd arbitrarily or capriciously ; but for the discharge of his duties, and the promotion of his welfare. Man was created for society ; and the mental and bodily faculties of ea'ch were given, for the discharge of duty to others, and the promotion of their welfare. Hence, the only broad and deep, the only wise, safe’ AND DURABLE FOUNDATION OF POWER IN THE PEOPLE, IS DUTY. The Convention must then be as limited in point of power as the people : even admitting the Convention to be the people. This then is the first limit on the power of the Convention : and we have no other alternativ, even if society were dissolved and government abolished, than to hold that the people are subject to the paramount obligations of morals, whether according to the law of nature,, or the law of reveald religion — or to hold that the revolutionary assemblies of France, acted within the sphere of lawful power, in breaking the whole law of morals, both natural and reveald.
    The next limit on the power of the Convention is found in the answer to the question, “ did the people mean, could they possibly Have meant to confer on the Convention all the power, which they themselves possessd !” Can any one believ it ! Is it not for the Convention to snow it, plainly and distinctly ! Must there be any doubt on such a momentous question ! Is it possible that the people meant to create an irresponsible assembly, and to vest in them all the political power which they themselves possessd, subject only to moral obligations! This was good doctrin in 1776: Yet even then it was subject to the great principles of the Declaration of Independence- The people never intended to enable, and 1 deny that they over did enable even a revolutionary Congress to do or omit the very acts, which were the cause of their resistance to George the Third. The Declaration of Independence is then the second limit on the power of the Convention.
    The third limit is found in a farther answer to the same question. Did the people mean to confer on the Convention power to violate the Constitution of the United States, and even power to abolish it in South Carolina! We know, on the contrary, that the Convention was called to vindicate and maintain the Constitution of the Union. Could the people have meant to confer on that assembly power to secede from the Union ! Did not the people in fact perfectly understand, that the object was to strengthen and perpetuate the bond of Union! Untilrepeald then, by a solemn deliberate act of the people calld as distinctly TO DECIDE WHETHER THEY WOULD ABOLISH, AS ONCE TO DECIDE whether they would adopt it, the Constitution of the United States must limit the Convention. That Assembly then could not lawfully interfere with any grant of power to Congress, or with any prohibition on, the States. The' C. U. S. is then the third limitation on the power of the Convention. It will be observd, that we might here introduce the whole argument to establish the repugnance of the Ordinance to C. U. S.,. but as it is so. important and comprehensiv, we seserv it for a separate head'.
    The next is to be found in the Constitution of the State. Will any one say that the people meant to put that instrument in the power of the Convention ? Was this any part of the occasion, of calling a Convention ? Was it within the object of the people í We know it was not. Must not the Convention, if they claim such a power, show it distinctly, incontrovertibly ? This they cannot do. The Constitution of the State was, therefore, beyond their jurisdiction. There is one specified limitation on the power of the Convention, according to nay view of the State Convention, which is too important to be omitted, and may be appropriately introduced here. I refer to the amendatory clause in the 11th Article.
    “Art. XI. — Wo Convention of the people shall be called, unless by the concurrence of two-thirds of both branches of the whole representation.
    “ Wo part of this Constitution shall be altered, unless a bill to alter the same shall have been read three times in the house of representatives, and three times in the senate, and agreed to by two-thirds of both branches of the whole representation; neither shall any alteration take place, until the bill so agreed to, be published three months previous to a new election for members to the house of representatives; and if the alteration proposed by the legislature shall be agreed to in their first session, by two-thirds of the whole representation in both branches of the legislature, after the same shall have been road three times, or three several days in each house, then, and not otherwise, the same shall become a part of the constitution.”
    We cannot fail to observ that the power to call a Convention, o.nd the provision to amend, form the Iasi Article of the Constitution. They form one Article, appropriated to one subject, viz: the portion of political power still left in the hands of the Legislature. I need offer no argument to prove, that the amendment of the Constitution is as much an act of political power as the ordainment of a Constitution. ' The former is, in its nature, the same species of power as the latter. We must, therefore, construe them together. Shall we, then, say that the power to amend, which, upon principles, belongs undoubtedly to a Convention, as a political representation of the people, is taken away by the amen-datory clause ? I contend that it is. Suppose that the amendatory clause had simply required that no amendment should take place, until two-thirds of one Legislature had proposed it to the people, and when a majority of the next had adopted it Such a. plan is precisely equivalent to a Convention, calld by two-thirds of the Legislature, elected by the people with a view to the pall, and acting by a majority of votes. Would not the amendatory power have still subsisted in a Convention, because of the substantial identity of the two modos of proceeding ? But is there any resemblance now? Look at the number of particulars and the precaution required to amend. The following are not found in the clause as to a Convention: 1. The Bill must be road three times in the House of Representative. 2. And three times in the Senate. 8. It must be published three months before a new election of JJep-resentativs. 4. The alteration must be agreed to in the first session of the new Legislature. 5. It must be again read thrice in the House of Represeniativs. 6. And thrice in the Senate. 7. And each reading must be on a different day,-' 8. Two-thirds of the House of Rep-esentalivs must agree to it.- And,- 9. Two-thirds of the Senate. Here, then, are no less than nine important limitations and conditions, laid upon two successiv Legislatures, in the exercise of the very power claimed for a Convention. Did not those who then provided for amendment, know that a Convention possessd the power of amendment without any provision on the subject 1 Why did they make such jealous and particular provision, if they meant to leave unlimited power in a Convention? Is it reconcilable to common sense, much less to enlarged political wisdom, to enable the first Legislature, simply by a vote of two-thirds to call a Convention to amend, and to enable a simple majority of that Convention to amend1 We may safely pronounce it impossible, if we give credit to the framers of the Constitution, even for a moderate share of good sense. The power to amend must then be eonsiderd as withdrawn from a Convention; because the existence of it m such a body is not reconcilable with the jealous guards placed around the exercise of the same power by two successiv Legislatures. Are not these intended as a substitute for an amendatory Convention ? Have not the people then, by such a special provision, actualy prohibited the Legislature from calling- a Convention to amend ? Have they not expressly said, «no part of this Constitution shall be altered unless,” &c., “then and hot otherwise, the same shall become a part of the Constitution” ?
    Perhaps it may be denied that the oath is in the nature of an amendment to the Constitution. Have not the very same Legislature settled that point, by their proposed amendment adopted at the last session ? Is there any difference in charaicer between that amendment and the 10th section, of the Military Bill, except that the latter is confined to officers in the Militia? If then such an oath as to civil officers is admitted to be an amendment, how can we doubt that it is equally so when applied to Militia officers ? If Militia officers did not hold offices of trust, under the Constitution, my argument would not avail, but I have already shown that they do. Besides, is not any material addition an amendment? to say nothing of an immateiial one. If then, Alegiance be not already embraced by the Constitutional Oath, the' 10th section of the military bill is a material addition, and is therefore prohibited as an alteration of the Constitution, unless made in the mode provided by the amendatory clause.— Assuming now that the act can only take effect as an execution of the power conferrd by the Ordinance, it cannot take effect under that, because the Convention itself has no power to amend, and of course, could confer none.
    Let us grant, however, for the sake of the argument, that the Convention had power to amend; still it is clear that the State Constitution was not subjected to their will and pleasure; but was intended to remain in full force and effect as to every part. The oath, therefore, if authorized by the Ordinance, is a nullity on this account. Besides which, they were not calld to amend the Constitution; and therefore, on this account also, the oath being such, they have transcended the limits of their power. This will be shown by and by in its proper place. I conclude then tins; particular branch of the argument by the remark that the State Constitution generally, and especially the amendatory clause, are a fourth limitation on the power of the Convention.
    A fifth is to be found in the state of things, which led to the call of the Convention. If I employ an agent, with a view to a known, existing state of difficulty and danger, do I give him a general power over my affairs ? Suppose the call had simply been to consider. what was best to be done in the known circumstances of the country. Qan any 0J)e ¿eny( that whatever difference of opinion might exist as to the choice of méqns, yet these must all be consistent with the permanent established institutions of the country ? The actual known state of things, referrd to generaly in the call,! have supposed, would determin the subject of jurisdiction for the Convention ; and, the actual known institutions of the country, would circumscribe the field of means to be employd. Can it he doubted they were calld at a given crisis, to act only with a view to that crisis ? The notorious reason of the call would then be a fifth limitation on the power of the Convention.
    Is not a sixth to be found in the act of the people 1 1 have said that' the people never could have intended to place the condition of their affairs, generally in the hands of the Convention. Now let us grant that the Legislature had not power to limit the call. Still, they did so. Did not the people elect, with a vieio to the call ? If they did not, what landmarks have we? The only answer must be, none at all. The people adopted the special call, or they rejected it. I say they adopted, because they elected under and in-pursuance of the call. They did not reject, because there is not only no proof that they did reject, but every reason to believ they neither did nor would have rejected. Did not the people elect in execution of the act calling the Convention of 1882, just as much as in 1788, and in 1790; and just as much as under the Constitution, every two years ? It is not necessary to my argument, to contend that the people were bound by the Act. It is sufficient to say, that they elected under the Act, and by force of the election adopted the Act. This then becomes as their Act, a sixth limitation on the Convention.
    We may find a seventh in the Act itself, as the Act of the Legislature. I have granted under the preceding head, for the salte of the argument, that the Legislature had no power to limit the Convention. I think it may be demonstrated that they had. In considering the constitutionality of the oath, in relation to the State Constitution, I trust I have establiseed as a fundamental truth in our systems, that the creation of a written Constitution, assignd permanently to the people, the department of extraordinary legislation on political subjects, and to the General Assembly, that oí ordinary legislation in civil matters. Now, the calling of a Convention clearly belongs to the political, not the civil department. But this power had been exercised by the Legislatures which calld the Conventions of 1788, and 1790. The Constitution, I have said, would have transferrd it of course, to the people; but instead of this, the Constitution recognizes it as ■still permitted to subsist in the General Assembly. It subsisted in them, at the moment when the Constitution was adopted. The first part of the 9th Art. plainly acknowledges it as continuing to exist, notwithstanding the adoption of the Constitution. It does not contain a grant of power; but is an acknowledgment, that this pre-existent power is not intended to be taken away, and is not taken away. “No Convention, of the people shall be called, unless by the concurrence of two-thirds of both branches of the whole representation.” This portion of 'political power remains then with the Legislature, by the sanction of the Constitution itself. The calling of a Convention by the General Assembly is, therefore, an act of extraordinary or political, not of ordinary or civil Legislation. They act then, not as a Legislature, but as a special commission. They are the political, not the civil representativs of the people, in the exercise of this high power, as much as the Convention itself. The only difference is, that the Legislature is a standing Committee, created by the Constitution to make the call; while the Convention is a special committee summoned into being by the standing committee, and the people, to answer some particular object. A Convention is then a representativ Assembly, created by the Constitution itself. It must then be subject to it, unless the contrary be somewhere declared, as it certainly is not any where.
    1 have said, that the clause of the Constitution recognizes the power to call a Convention, as still subsisting in the General Assembly. Now observ, that the single limitation laid on the power, acknowledges it as unlimited in all other respects, within its appropriate sphere. Take away the limitation, as to two-thirds, will not all admit that a majority of each house might have calld? Suppose other limitations added! for example, that no Convention should be calld oftener than once every twenty years — or that no restraint should be laid on the power and objects of a Convention. Can any one deny that if to add them, takes away power, to strike them out restores power l
    
    Besides, the practice in calling Conventions had been to specify the object. Must not the article be read with a view to the pre-existent custom 1 And has not the practice ever since been the same, in every State in the Union ? This commentary of so many Legislatures, and of the people so often, settles the practice. It does not make it obligatory on the Legislature as an express enactment; but does it not create a solemn duty, by a very clear implication I Is not this strenghened by the consideration that, to call a Convention, without some great public cause demanding it, and without specifying its objects, could not be reconciled with any just sense of duty to the people 1 Would it not be an arbitrary, capricious exercise of power, unworthy of a representativ body, acting under the influence of duty and good sensei The Legislature had then power and were bound to prescribe the objects of the Convention. The act calling them was therefore a seventh limitation on the power of the Convention.
    It seems to me, then, to have been demonstrated, that the fundamental law of morals; the Declaration of -Independence; the Constitution of the United States; the Constitution of South Oa-rolina; the occasion of the call; the Act of tho People; and the Act of the Legislature, are all of them so many restrictions on the power of the Convention. Let us grant however, for argument sake, that they are not, as has been contended on the other side. Let us then look at the consequences of the doctrin which holds that the Convention was the people, and possessed unlimited power. If this be sound political doctrin, then the following may be stated with undoubting confidence, as some of the natural, inevitable consequences of that fundamental law in tfio Constitution of the Convention.
    That Assembly, if uncontroled, could then have declared that there was no God, and death an eternal sleep, that the scriptures are an imposture, and prayer an act of mockery; that the Christian clergy should never teach or preach again; that truth and falsehood, virtue and vice, justice and injustice, are matters of indifference ; in fine, that there is no such thing as moral obligation, or natural affection. They would equaly have had power to falsify the Declaration of Independence, by ordaining that life, liberty, and happiness are not inalienable rights ; that the people have not power to alter old, or institute new governments; that rulers do not derive their just powers from the consent of the govemd, and that it is neither the right nor the duty of the people to throw off a government which aims at despotism, and to provide new guards for their future security. In like manner they could have lawfully annulld the Constitution U. S. within the limits of S. C.; .have declared war, made peace, formd treaties and sent ambassadors. They could also have raisd a standing army; have provided a navy; have establishd a custom-house, and laid duties on imports and exports; have coind money, and adopted their own rule of naturalization ; have made bank paper a legal tender, and organizd, armd and disciplind the militia at pleasure. Equally manifest is it, that if unlimited, they could have abolishd the State Constitution, and have establishd an oligarchy or a monarchy; they could have granted titles of nobility ; have passd bills of attainder and expost fac-to laws; they could have re-establishd the Protestant as the religion of the State, and have declard the civil subordinate to the military power: they could have decreed the worship of idols, and have punishd the refusal with confiscation, imprisonment and death; they could have superseded all our courts; have ordaind a codo of political offences; have created a Star Chamber to try the obnoxious among' their political opponents, and have placed on its bench, as fit ministers of their vengeance, could they have found’ such men, another infamous Scroggs and another bloody Jeffries. On the same principle of supremacy in power, they could havo utterly disregarded the object of their call; they could have laid it aside, and have spent not a moment upon it; they could have employd themselves in passing a code of civil or ecclesiastical law; in giving a new Constitution; in deciding cases in chancery, or in revising the judgments of our Appeal Court. What indeed could they not have done, if there was realy no limitation on their power?
    
      But, neither theory nor practice, neither principle nór expedienej', justify the position that the Convention is the people, and that the Convention wields an uneontrold irresponsible power. The good of the people, the security and durability of their institutions, the constituent principles of all representativ bodies, the distribution of power under our republican forms, and their harmonious, action, the preservation of our State Government and of the Government of the Union ; all, and many other such considerations plead eloquently, iresistibly, in the name and for the sake of the people, against this doctrin of despotizm. A Convention is then limited by the fundamental laws of moral obligation ; by the Declaration of Independence ; by the National and State Constitutions ; by the occasion and object of the call; by the call itself as the act of the people and of-the Legislature. These in fact, are the constitution of the Convention, and by them that body is as CLEARLY AND INFLEXIBLY BOUND, AS THE LEGISLATURE BY THE CONSTITUTION itself. They may do any thing consistent with ALL THESE, THEY CAN DO NOTHING INCONSISTENT WITH THEM. To entitle the Convention !o transcend such a commission, and to exercise the power of altering, suspending or repealing any part of the State or National Constitution, they must show the authority, not by speculaliv reasoning on the powers of a Convention, but by pradical proofs, and a clear, specific delegation of such a poioer. Such proofs, such a delegation, they cannot show.
    I trust that I have now demonstrated, that the Convention, so fai 'from being unlimited, is laid under many very important restrictions, which curtail its jurisdiction over sulyeets, and its poioer in the employment of means. I proceed "now to show that the Ordinance of 18th March, 1833, which relates to the Force Bill and Alcgiance, is not within the call of the Convention. I still assume that the ale-giance of the Ordinance is exclusiv alcgiance, and that it does declare none to be due to the United States. Now, the Convention was undeniably calld to consider the Tariff acts; to determin their character ; to devise the means of redress; to consider such acts of Congress as might be substituted for the existing acts, and likewise all other laws and acts that might be passd or done for more ef-fectualy enforcing them. The Convention met pursuant to the call, they considerd the acts, declared them unconstitutional, and provided a remedy, in the Ordinance of 24th-of November, 1832. The same Convention afterwards, by their Ordinance of the 15th of March, 1833, accepted the Tariff act of 1833 as satisfactory, and therefore repeald the former Ordinance. Now, the Ordinance of 15th March must be considerd as acknowlegmg the Tariff act of 1833 as constitutional. The Ordinance of 1832 had declared all Tariff acts, “ intended for the protection of domestic manufactures," “ unauthorized by the Constitution and their Address to the peo pie of the United States declares, “ our resolve is fixed and unalterable, that a protecting Tariff shall be no longer enforced within the limits of South Carolina. We stand on the principles of everlasting justice, and no human power shall drive us from our position." Can the Convention, then, or any advocate of that body, ask us to believ the Tariff of 1833 unconstitutional 1 Is it not enforced within the limits of South Carolina ? Has the Convention been driven from jtg pOSition •} it follows that the Tariff of 1833 is, by the tes» timony of the Convention itself, not embraced by the act, which calld them together. According- to their express declarations and acknowledgments, they never would have been calld, if the Acts of 1828, and 1832 had been the same as that of 1833. According to
    the same, they would not have adopted the Ordinance oí Novena» her, 1832, if the only Tariff Act had been like that of 1833.- Unconstitutional Tariff Acts of Congress were then the only subject 0f jurisdiction, and of course the power to devise the means of redress could only be co-extensiv with the subject. Congress, by their own acknowledgment, took away the subject by removing the cause which calld them together. Did not the effect, that is the right to employ correspondent means, instantly cease ? I apprehend then that the repealing Ordinance of 15th March, 1833, closed •the duties of the Convention, and exhausted all their power.
    Perhaps it may be said, that the Convention was empowerd to -consider all other acts substituted for those of ’28 and ’32, and all laws and acts for enforcing them. But it is undeniable, that they were calld to devise remedies against unconstitutional, not against constitutionalisms. They were calld in like manner, to resist the •execution of unconstitutional laws, whether by constitutional or unconstitutional means. Most certainly they were not calld to resist the execution of constitutional laws, whether by constitutional or unconstitutional means. When substituted laws are spoken of, it must be referred to laws of the same character, that is iinconsliiulu onal ones. It cannot, with any regard to sound interpretation, or by any scheme of rational logic, be referrd to laws of the opposii character, that is constitutional. If, then, jurisdiction over the subjeci be taken away, as the convention themselves acknowlege it to have been by the act of Congress of 18<33, it follows iresistibly, that .jurisdiction over the means must share the same fate. Congress have power to coin money and regulate the value thereof. Take :away the first power, does not the second go with it 1 Congress have power to organize, arm and disciplin the militia. Deprive them of the two first, and who would contend for the continuation •of the third ? Is it not then apparent that the whole Ordinance of 18th March, 1833, is a nullity, because jurisdiction as to means is only given with a view to jurisdiction as to ends; and if this ceases, that, as an inevitable consequence, ceases also.
    But there is a further view. How can the second part of the Ordinance of 18th March, which defines alegiance and empowers the Legislature to provide oaths and punish their breach, be referrd to the act calling the Convention 1 None of the acts of Congress had any reference to the subject of alegiance in any form. They had never passed any acts, or done any thing that touchd or ever so remotely related to alegiance in any form whatever. The subject of alegiance, therefore, could not possibly have been within the call of the Convention. Even the President’s Proclamation of 10th December, 1832, did not then exist; and all must admit, that whatever it may be worth as the opinion .of an able cabinet on the question of alegiance, it neither was, nor could make the law on that subject. Moreover, the question of alegiance, belonging' to the fundamental political law of society,- must be referrd to the jurisdiction over subjects, not to that over means. To authorize the Convention to act upon it, I therefore insist, that it must have been given to them either expressly, or by a clear implication, as incident to the jurisdiction actualy granted over subjects: not to-that conferrd over means. I have thus concluded the argument on the question,..whether admitting the Ordinance to be valid, it can be regarded as within the call of the Convention. I have insisted that it was not, because the Convention was actualy a body of very limited power: and that the force bill, and especialy the subject of-Alegiance,. were not embraced in the objects of the call: and could not possibly have been. Having thus shone the Ordinance of the 18th March, ’33, to be unauthorizd, it follows, if the Oath in the Military Bill be regarded as an execution of the Ordinance, it is a nullity as dependent on that for its authority.
    But it may be said, it must be regarded as taking effect independently of the Ordinance, by virtue of Legislativ authority ; and-then I shall be toidj. that I cannot refer the word Alegiance in the Act, to the Ordinance for- a definition. How then, I am askd,. shall 1 avoid the conclusion, that Alegiance in the Act does not mean exclusiv Alegiance, but Alegiance generally 1- And, .in such case, if the Ordinance be out of the way, how can the relator object to taking such an Oath! Apparently, the whole ground of objection is taken away; but in reality, it still remains. The samel Convention, in their address to the people of South Carolina, dated 34th November, 1833, have said (Joun Con. p. 67.) — “We then command your obedience to the laws and authorities of the State,, by a title which none can gainsay. W'e demand it by that Allegiance which is reciprocal with the protection which you have received from the State. We admit of no obedience, which shall conflict with that primary Allegiance which every citizen owes to the land of his birth or adoption.” This," beyond all question, is-a declaration of paramount Alegiance. Nor is this all, They expressly say, p. 68. “ As far as its citizens are concerned, the clear right of the State is to declare the extent of the obligation:” and the State is immediately after styled “his only and lawful sovereign.” Now, this declaration of the' solemn judgment of the Convention,, affects the oath in question, under the 10th section of the Military Bill -, because it settles «the extent of the obligation of Allegiance:” and the very question before us is, what is the nature and extent of the oath in the 10th section! The advocates of the Convention, therefore, cannot hope to prevent their interpretation of the nature and extent of the term alegiance from affecting the oath in. the Military Bill. Until the State shall annul that declaration, it purports to declare to evry man the meaning of the oath. The Legislature, then,, have enacted and demanded an oath of paramount Alegiance. Whether that oath be de-mandable by virtue of, or independently of the Ordinance, still the last and the great question remains — is not an act of the Legislature or an Ordinance of the Convention, exacting such an oath, clearly and ireconcilably repugnant to the Constitution of t-ho Um-ted States? I proceed to demonstrate, as I trust I shall, tiiai it is.
    We enter now on the most important part of our argument; and propose to test the Oath by the Constitution of the United States. Let us grant, for the purposes of the argument, on this branch of the case, that the Oath is not prohibited by the State Constitution; that the oath is an execution of the power conferrd by the Ordinance; that the Convention was not controld by the specific call, as 1 have insisted; and even if controld, that the ordinance of the 18th March, 1833, was within the scope of its call under all the limitations specified; still the question remains — • are the oath, and the Ordinance, as its parent, consistent with the Constitution of the United States? If they be not consistent, which must yield ?
    Let us first enquire, what is the true relation subsisting between the Ordinance and the Constitution, of the United States? Until this be settled, we can have no satisfactory premises, from which to reason. Is the Constitution of the United States still the Constitution of South Carolina? Is the Government of the United States stili the Government of South Carolina ? In point of fact, who can doubt? The people have elected their representative, the Legislature a Senator — the Custom House, Judiciary, and ev-ry thing else, go on as before. The Ordinance of 24th November, 1832, is repeald; we have not seceded;'we have not esta-blishd a separate Government; the relation of the State to the National Constitution is thus evidently still that of a subordinate to a superior instrument. The former is declard to be the sv-MtEME law of the land. Whilst, therefore, the Constitution of the United States shall continue to be of force m South Carolina, the State Constitution must, in point of authority, be rankd below that of the Union. Is this derogatory to the dignity of the State ? Who shall venture to say that it is ? when the people themselves have so ordamd ? The people then have declard, that the Constitution of the .United States is the supreme Constitution of South Carolina, and the State Constitution the subordinate Constitution of South Carolina. This was the separate act of the people of the State; that, the joint act of the people oí all the States. The people of South Carolina have no power to alter the Constitution of the United States, even as to themselves— It can only be done by a joint act. It follows, undeniably, that while the Constitution of the United States remains the Constitution of South Carolina, and can only be alterd by a joint act, the people of South Carolina cannot alter even their Slate Constitution, inconsistently with that of the Union. As then the Constitution of the United States still is the supreme law of South Carolina, it is manifest, that if the Ordinance had been adopted in the usual mode, as an amendment of the Constitution of South Carolina, it must be a nullity, if repugnant to the Constitution of the United States.
    This conclusion leads to the question, what is the relation of the Ordinance to the State Constitution? It is superior, co-equal or subordinate in authority, if it he co-ordinate or inferior, its late is seald, should it not be reconcilable with the Constitution of the United States. It is then annnlld by the supreme iaw. Is it superior? This is impossible. If so, in what sense? Was not each the act of the people? granting each Convention to have been the people. If a Convention be not the people, was not each (the Constitution of South Carolina and the Ordinance,, the act of co-equal representativ assemblies ?' ’ Is there any difference between the obligation to obey each ? between the power to compel obedience to each? and between the means that may bo employd ? Is not the relation of the • citizen and of the departments of the State Government to each, exactly the same? If then the Ordinance be consistent with the State Constitution, how can it be adjudged superior, when tried by those tests ? If it is not consistent, and so far overrules that instrument, still, what superiority has it? which does not equally belong to an amendment. Is an amendment superior because it cancels and substitutes? If so, the amendment of an amendment is still farther superior: and a succession of amendments would present a series of successiv acts, each rising above the other in dignity and power. Who believs ? who is willing to assert this ? Besides,' the Ordinance belongs to the same branch of power as the Constitution, viz : political as distinguishd from cit'd. It stands to the Constitution of the State, in the same relation that a statute or a particular subject of civil legislation bears to an entire code of civil law. The statute becomes as a matter of course, whether so declard or not, a co-equal part of the civil code. The Ordinance becomes in like manner, a co-equal part of the political code. It is, in other words, a part of the constitutional, as distinguishd from the statute law of the State. It is, in fact, as well as in law, if valid, a part of'the Constitution of South Carolina. If this be then the true relation of the Ordinance to the Constitution of South Carolina, and the Constitution of South Carolina be subordinate to the Constitution of the United States, it follows that the Ordinance also must be subordinate to the Constitution of the United States. As then the Constitution of the United States is still the supreme Constitution of South Carolina, the Ordinance must be adjudgd invalid, if it be repugnant to that supreme law.
    Let me here dispose ,of an objection which has been seriously made, and deservs therefore, to be seriously answered. We have been told that this Court has no authority to sit in judgment on the Ordinance — that it has no jurisdiction over the act of the Convention’ — that the creature must not judge of the deeds of the Creator; that this Court is but a creation of the sovereign power, and cannot be the judge of its sovereign. Let us take a lesson from a despot. “Judges,” says Frederick the Great, “ ought to know, that the poorest peasant is a man, as well as the King himself; all men ought to obtain justice, since, in the estimation of justice, all men are equal, whether the Prince complain of a peasant, or a peasant of the Prince.” Let us take a lesson from another despot. Ferdinand of Spain was suminond by the son of Columbus, before the Council of Indian Affairs, who heard the cause, and decided against Uie King. Nor lei us omit the noble sentiments of Sir Win. Scoi^ silting under a limited monarchy. “ In any case, where the Grown is a party, it is to be observed, that the Crown can no more with» hold evidence of documents in its possession, than a private person. tlle Court thinks proper to order the production of any public in» strument, that order must be obeyed. It wants no insignia of an authority derived from the Crown.” These are lessons of enduring wisdom, and worthy of the independent judiciary of a republic. The humblest citizen of a Republic has the right, and it is not a Republic in Che American sense of the word, if the right do not exist, to take shelter against the unconstitutional will of the people themselves, under the broad shield of an independent judiciary. I do not question, that the people are the fountain of power, but when I am told so triumphantly, that all power is in the people, it is forgotten, that the people themselves have only declared, that “ all power is originaly vested in the people.” To the extent, to which they have parted with power, by the creation of an independent Judiciary, they have declared, while that independent Judiciary stands,, that in any controversy between themselves and a citizen, that Court shall be the interpreter of their will: shall reconcile the various declarations of that will, if they can be made consistent; but shall decide to be null and void, any declaration of that will, which they themselves have establishd as subordinate, if it conflict with that they have ordaind as the supreme declaration of that will. And who ever doubted, that this Court not only has the right, but is bound to judge, between the Constitution of the State and that of the Union 1 If then the Ordinance be, as has been demonstrated, I trust, a part of the Constitution of South Carolina, in relation to the Constitution of the United States, it must be granted, that this Court can sit in judgment on the Ordinance. It can judge of the subordinate, because it can judge of the supreme law. When the-people of Arragon elected a King, they declared to him, between you and us there is one of greater authority than you, the law. — » When the people of South Carolina elected you as their judges, they declared to you, while the Constitution of the United Slates shall continue the Constitution of South Carolina, we ordain that it shall be superior to our separate will, however the same may be declared ; we have acknowledgd it to be the supreme law of our land; and \ye have solemnly agreed that “ the judges in every State shall bo bound there~ by, any thing in the Constitution or laws of any State to the contrary notwithstanding.” We exact of you an oath to support that Constitution, and we therefore empower and command you to administer it frankly and fearlessly, against any separate act of our own will, repugnant to its supremacy. In the spirit of this commission, the judges of this tribunal will ever say, in the language of Chief Justice Marshall, « that this Court dares not usurp power, is most true. That this Court dares not shrink from its duty, is not less true.” It was in the days of Roman degeneracy, the age of Marius and Sylla, the age that succeeded the tumultuous scenes under the Gracchi, that the Senators were compelld to approve under oath, whatever the people enacted. And in after years, the law was extended, as their own historian tolls us, to every ordinance of the people, however violent and absurd. It well became the Senate, in days of deeper degeneracy still, to offer, under the pledge of an oath, to observ whatever laws Augustus should enact. But it becomes the people of South Carolina to imitate the conduct of the Egyptian Kings, when they exacted of every judge an oath, that he would reject whatever was unjust, even if the King should command it. The people of South Carolina have said so to you, and while the Constitution of the United States shall be the supreme Constitution of South Carolina, I trust there is no judge, who. would not go into banishment with the noble Metellus or to prison tvith Cato of Utica, -rather than sustain the separate will of the people, earn in ike form of an Ordinance, if it conflict with that supreme law. This Court then has a clear, undeniable jurisdiction over the Ordinance of the Convention.
    Haying now establishd the lelation of the Ordinance to the Constitution of the United States, and the authority of this Court to judge between them, we are prepard to examin and decide the question, do they conflict. On the other side it is aledged that alegiance is indevisible, because it is asserted, that it is due to sovereignty, and that sovereignty is indivisible, I shall undertake to prove that sovereignty is divisible, and that a divided alegiance actually exists in the case of every citizen of a State. I affirm, that the sovereignty originally vested in the people of the State has been divided by their own act, and that by their own acknowledgment, every citizen of the State owes alegiance to the United States as well as to the State.
    I begin with the remark, that the novelty certainly is not on our side. It- is assumed on the other side, that we are the innovators. We shall demonstrate that we are not. If the political history of Europe, and of our own country be, testimony, we shall offer ire-fragable proofs, instead of assertion.
    Divided alegiance is a thought perfectly familiar to the feudal Constitutions of Europe. The general oath of fealty on the Continent was, I swear that henceforth I will be faithful to you, my Lord, against every man “except the Pope, or Emperor, or King, or my former Lord,” as the case might be. In England the exception was omitted, when the oath was taken by a tenant, for life or for years; but still it was understood. It was expressd, however, in the doing of homage by tenant in fee in England.-— Sulliv. Lect. 6, p. 61. 4to. The succession of feudal obligations from the lowest Lord up to the King, all ceasd when the military tenures were finaly abolishd in England, and the direct relation between the subject and the King, expressd by the term ale-giance, took their place. This succession of alegiances is still farther explaind by Sullivan, p. 63. The tenant was bound to serve his Lord against all persons, even his father, children, brothers, and friends. But he was not bound to serve him against the King, because he was the supreme Lord of all, in whose preservation and dignity evry individual is concernd. Nor was he bound to serve against his original country nor against his prior Lord ; for the second obligation could not annul the first. In these various forms, then, it is manifest, that divided alegiance, or succession of alegiances, was familiar to tho ancient feudal law. It is like--; w¡se to more modern law. In Calvin’s case, after it had been argued, as appears, Par. Rep. 7. fol. 2, no less than ten times, by private counsel, by the Solicitor General, and Attorney General, by the twelve Judges and the Chancelor, these thirteen, forming-the Court of Exchequer Chamber, decided that, “ albeit the Kingdoms of England and Scotland, should by descent, be divided and governd by several Kings, yet, all those Who were born under one natural obedience, while the realms were united, would remain natural .born subjects, and not become aliens by such a mat- , ter ex postfacto. The postnatus (afterborn) in such a case, would be the subject of each king, ad fidem utriusque regis.” Will tho opposit counsel, to impeach the authority of Calvin’s case, say with King James, that, “ in Coke’s Reports there were many dangerous conceits of his own, utterd for law, to the prejudice of the crown, parliament and subjects'!”
    Is not the doetrin of divided alegiance eonfirmd by the doc-trin of naturalization! All nations deny the right of expatriation; yet all adopt foreigners as their subjects 1 Do not all, then, prac-ticaly acknowledge, while theoreticaly they deny, a double alegiance! Do not all admit, that, according- to the fundamental political Constitutions of Europe, the adopted subject still owes Ms alegiance to his original sovereign ? What is it but the old doe-trin of the prior and subsequent Lord! Do not all equally admit that lie does not become an alien to his original country: that on returning to it, he requires no act of naturalization to confer the privileges of a nativ born subject! His second is then still subject to his first alegiance. Now observ, that as the subject of the first Prince, he is under no obligation to serve the second, before he becomes his subject, against a third. But is lie not bound after having become his subject! He may then lawfully serve both the first and the second, against the third.— Qn what principle can he do this, but on the ground that ha owes alegiauce to both! If he merely reside in the country of the second, lie cannot be required to engage in war against the third. Let him become the subject of the second, and he is com-pellable. Double or divided alegiance, i. e. consistent alegiances, are then familiar relations, both in the theory and practice of the European States.
    I proceed now to apply the doctrins I have explaind to the relations of a citizen of South Carolina to the Union and the State. Let us remark that the exception in the feudal oath, both of Continental Europe and England, was inserted, and became a part of the contract of the parties; because, the persons excepted, were not parties to the contract. If they had been, who will deny, that without an express reservation of the superior or prior allegiance, it would have ceasd forever. But as the new relation was not the act of the higher or former sovereign, he was not bound by it. Now, observ, that the relation subsisting between the citizen of South Carolina and the United States, is created by the people of South Carolina, acting in their highest sovereign capacity. It, is not the separata act of the citizen and the rest of the States; "but the people of South Carolina, without any individual act of his, as is the case in naturalization, have created the relation.— Such cases as those of Gen. Patkul and rEneas M’Bonald, could never, therefore, exist in South Carolina.
    Let us next remark, that when the subject was bound not to make war against the King on behalf of his Lord, it is because that very Lord had acknowledged the King to be supreme over him, as long- as the political constitutions which determind the relations between the King and the Lord, the Lord and the Vassal, should subsist, and have not the people South Carolina ac-knowledgd, that as long as the Constitution of the United States and the Constitution of South Carolina are their Constitutions, the former shall be supreme, and of course, that the relation subsisting between the citizen of South Carolina and the United States, is superior to that subsisting between him and the State. The feudal Constitutions, stiled the inferior relation, that of a vassal, the superior that of a subject. But in our country, vassalage has never been known, and the relation of subject ceasd with the Declaration of Independence. “At the revolution,” says Ch, J. Jay. 2 Dali. p. 71, “the sovereignty devolved on the people, and they are truly the sovereigns of the country, but they are sovereigns zvithout subjects.” What is the true character of the relation, which subsists between the citizen of S. Carolina and the U. States, we shall consider hereafter.
    Our next remark is, that upon the acknowledged principles •of the political Constitutions of Europe, the Englishman naturalized in France, does not cease to be an English subject, simply because the King of England is no party to the new contract. But it is conceded, that the King of England can release the subject from his alegiance. If, therefore, he had made the Englishman a subject of the French King, would he not, by the very fact, have releasd the alegiance due to himself, unless he had •expressly reservd it? Suppose he had reservd it, would he not still have acknowledged a divided alegiance, and would not the Englishman, by the concurrent act of both Kings, have been the subject of both ? But suppose the King of England had declared the Constitution of France to be a supreme law, as between the subject and the two Kings, would he not have acknowledged the relation of subject between the Englishman and French King, to be superior to that between the same man and the British Crown? In other words, would he not have declared the alegiance due to the French Monarch, superior to the alegiance due to himself? Is not this precisely what South Carolina has done? Has she not declared the Constitution of the Union supreme, and her own subordinate ? Has she not necesarily created a higher relation between her citizen and the U. States, than between him and herself? If while the two continue to be her Constitutions, her separate will is not sup-eme, it is too plain to be doubted, that the alegiance due to her cannot be paramount, much less ex-clusiv.
    These are the conclusions from the political constitutions of Europe. Let us turn now to our own political history. I have already adverted to the Oaths prescribed by Congress, in Oct, 1776, and Feb. 1778: — and have insisted that they admit of no other construction, than that they were in fact, as well as in law, and were intended to be, Oaths of Alegiance. Let us now add the following. explicit testimonies. On the 20th Feb. 1776, 2 vol. Journ. old. Congr. p. 344, Congress establishd rules and articles of war, by the 1st art. of 1st sec. of which, every non-commis-siond officer ¡and soldier was required to swear, “ to be true to the U, -S. of America, and • to serve them faithfully against all their enemies and opposers, whatsoever.” Does any one doubt this to be an Oath of Alegiance I No feudal jurist certainly would doubt. Again, on the 23d Oct. 1782, 7 vol. Journ. O. C. p. 391,2, Congress resolved that all the officers in the Quarter Master General’s Department, shall take the Oaths of Alegiance, and the Oath of office prescribed by Congress. Now the only oaths previously prescribed, are those-of 1776, and 1778. Our delegates present in Oct. 1782, were John Rutledge, David Ramsay, John Lewis Gervais and Ralph Izard. Did they not know whether Ale-giance was due to the United States? On the 27th Jan. 1785, 10 voi. Jour. O. C. p. 29 — Congress resolvd, that the oath of fidelity shall bem the following words: “I, A. B., &c. do acknowledge that 1 owe faith and true Alegiance to the U. S. of America,” &c.. Our. Delegates then present, were Charles Pinckney, Jacob Read, and John Bull. Did they not know whether alegiance was due to the U. S.? Tho above oath was unanimously adopted-by all the States present, all were represented in the vote, but Delaware. Now, let it be remarkd, that all which had been thus far done, was the act of the States themselves, represented in the Revolutionary Congress, or in that of the Confederation, each as a unit. The States then, as so many Sovereigns, to use the familiar language of the opposit side, did declare that the U. S. under both of the old imperfect forms of Union, had the capacity as a sovereign to exact the duties springing from the relation of Alegiance, and that this relation was not created by the person taking the Oath, but was' simply acknowleged by him, under the sanction of the States themselves, as already existing. If then the relation of Alegiance did exist, (as thus admitted in these' various modes,) under the imperfect Unions of 1776 and 1778, how is it .possible to doubt it’s existence now ? when the very object of the C. U. S. was to form a more perfect Union.
    Let us now look at the state of things under the new Govern, ment. The Constitution, according to the views presented in the first part of my argument, provides, in the obligation to support the Constitution, an equivalent to, and a substitute for, an Oath of Alegiance, in a truly republican form. But independently of that, the power to punish treason is the highest proof of the existence of the relation of Alegiance. Treason as a crime, is the correlativ of Alegiance as a duty, ft is the breach by an individual, not by an officer, of his duty to bear true and faithful Alegiance. The C. U. S. by simply recognizing the relation, acknowledges, by an Resistible implication, the power to punish; and lays but two restrictions on that power; by defining what shall constitute treason; and requiring two witnesses to the same act. These restrictions on the power admit it to be unrestricted otherwise : the admission of the power to punish admits that the crime to be punishd can exist: and this provision against the crime admits the relation to exist, which it violates. What say my friends ■ to this, seeing that the C. U. S. was framed by legislaiiv delegates of the States; was laid before the people of each State by-their confeieratvo delegates in the old Congress ; was adopted by the people of each State in separate State Conventions; and was put into operation by the same State Delegates, the Confederation t
    
    I proceed now to examin the legislation of Congress on the subject of Alegiance, under the present Constitution. The first thing to be noticed is the Oath of Naturalization. The Alien, under the act 1795, and under all the subsequent laws of Congress, abjures Alegiance to all foreign powers, but he makes no acknowledgment of alegiance to the United States. Does he owe alegiance to no one! If naturalized in a Court sitting in a State, that makes no difference; for the form substance-and consequences must be the same, wherever the act may be done. But if-naturalized in a territoty, or at Washington, it is clear that the character of citizen of a State would not attach to him. Can it then be doubted, that • this Oath, by force of the pledge to main- • tain the C. U. S. and by force of the abjuration of foreign ale-giance, creates the relation of Alegiance between the adopted foreigner and the United States ! Is not this still farther illustrated by the following consideration! The Oath of Alegiance in Europe is to the King, and the obligation is to obey, maintain and defend him as King; because he, as the head and-sovereign, is bound to maintain and defend the State. To obey, maintain, and defend him, is then- to obey, maintain and- defend the State. Alegiance to him is alegiance to the State. And in a republic, to obey, maintain and defend the Constitution, is not this to obey, maintain and defend the State! Is not such Alegiance thus ex-pressd to the Constitution, Alegiance to the people!
    The next Act of National Legislation, to which I advert, is the law of '30th May, 1796, which provides that every officer,, non-commissioned officer, private and musician, shall take the following oath: “I, A. B., do solemnly swear to bear true Alegiance-to the U. S', of Ameriea,” &c. The Act of the 11th July, 1798, requires the same oath in the navy, as that of May, 1796, for-the army. The act of the 16th of July, 1-798, “to augment the-army,” provides that- the above- oath shall be taken by all the-officers, non-commissioned officers, privates and’ musicians raisd under it-. The act of the 16th March, 1802, for- fixing the military peace establishment-, requires evry officer, non-commissioned officer, private and musician, to take an oath: “I, A. B;, do solemnly swear that I will bear true faith and alegiance to the United States of America,” &c. The Act of. the 10th April, 1806, establishing the rules and articles of war, requires, by art. 10, ev-ry non-commissioned officer or soldier to swear, “ I, A. B. do solemnly swear that I will bear true alegiance to the United States of America,” &e, Tli§ Act of 11th Jan. 1812, requires evry officer, non-com-.. missioned officer» musician and private, to swear — “I, A. B. do solemnly swear that I will bear true faith and allegiance to the United States of America,” &c. The second section of ' the same Act says: — In time of war, “all persons not citizens of, or owing allegiance to the United States of America, who shall be found,” &e. Here then we have the testimony of Washington, Adams, Jefferson and Madison, that alegiance is due to the U. S., and we have the testimony of the whole country, represented in both Houses of Congress; the people of the States attesting their approbation of the doctrin through the -popular branch, the States through the Senate. The testimony in the case of Mr. Jefferson, is the more remarkable, because he came into power under a revolution, in which the contest was between Federalism, or National rights a.nd liberal construction on the one side, and Democracy, or State Ilights and strict construction on the other. Yet, on the sub» jeet of Alegiance, he followed the footsteps of Washington and Adams, whilst ho departed so widely, on so ms,ny other points. Again, the Acts in Mr. Jefferson’s time, are not merely occasion» al or particular ; they were intended to be permanent systems, the one for the Military Peace establishment, the other for the establishment of Rules and Articles for the Government of the Ar« my. Let it be remarkd also, that the politics of Mr. Jefferson were then the politics of South Carolina. Now, what do these Acts of Congress amount to? Are they not the declaration of the constituted authorities of the States and the People, that Ale-gianco is due to the United States? Did not the Senators and fteprosentativs, who made these laws, come from evry part of the United States ? Did they know nothing about the political law of their country: and the political opinions of the people of the United States, both of their'own and former times? If ever there was a people who must be held to know the law, to acquiesce in the law, to ratify it, by a succession of Acts of the most-public and unequivocal character, the inhabitants of this country are that People. Tho acts of Congress are not only pub-lishd in pamphlet form and scatterd evry where; but they arc publishd in newspapers, in evry State and Territory. The acts of Congress, then, on a matter of political popular Legislation, must be regarded under such circumstances, as in an eminent and appropriate degree, the Act of the people. Moreover, let us only consider how many tens of thousands of officers and privates in the army and navy, citizens of evry State in the Union, have taken these Oaths? Are we to regard-them as perjurd, or as talcing a senseless Oath? Were not these oaths exacted by the Representativs of the people, speaking the sentiment and will of the people? And have not the people sanetiond them in this exposition? And how many of the sons of Carolina herself have taken these oaths ? To say nothing of revolutionary times, did not Generals T. Pinckney, Wade Hampton and David R. Williams, take them? Did not Col. l’On, Gov. Pickens, Col. Arthur P. Hayno, Wm. Morris, Col. Fenwiclce, Col. Drayton, and last, though not least, General James Hamilton, Jr. himself solemnly swear to boar true Alegiance to the United States of America? Was this an idle ceremony with them: or did they understand nothing of what they were doing? And in the Navy, did not 'T'illinghast, Izard, M’Cal], and the Shubricks, do the same ? But I forbear.
    I trust, then, I may consider the position establishd, that ele-giance is due to the U. S. I have regarded it as a practical historical question and to be treated accordingly. l,have consi-derd facts set down upon our political records, in the name, by the authority, and with a view to the good^ of the States and the people, as the- highest manifestation of the opinion and will of the States and the people. The same proofs demonstrate the existence of a divided alegiance, for no one doubts that alegiance is due to the State. The only controversy is, whether any be due to the U. States. . I am much mistaken if this has not been put beyond all doubt, both in point of principle, as a question of political philosophy, and in point of-fact, as a question of political history.
    Alegiance is then due to the United States. By whom is it due? 1 answer, by a citizen, in the highest and, best sense of the word. The United States have citizens in the most com-prehensiv and perfect sense of the term. Is the relation between the citizen and the State a perfect citizenship? Grant it, and what character of that relation does not equally belong to his relation as a citizen of the United States ? Can the State try him, and punish with fine, imprisonment and even death, his offences against her ? So can the United States. Can the State take his property for public purposes, against his will? So can the United States. Gan she lay taxes on him and his property ! So can the United States. Can she compel him to serve in the militia ? So can the United States. Can she require him to attend as a juryman, or a witness, in her Courts? So can the United States. Can she command him to aid her sheriff, as one of the posse eomi-tatus, in executing the laws ? So can the United States. With regard to political and civil ties, there is, then, no difference between the relation which the citizen bears to the State and the United States. But, m truth, the relation which the individual bears to the United States, is of a higher order and of a more comprehensiv chaiacter, than that which he bears to the State.— He stands to the State only in a domestic municipal relation.-— He stands to the United States, in a relation not only domestic and municipal, but in the higher and more extensiv one still, which corresponds to the whole circuit of national, and international rights and duties. Who but citizens of the United States, can fill the offices in her various departments? Can be the officers of her army and navy? — Can be her consuls, commissioners under treaties, and her ambassadors? Are these not higher characteristics and privileges of national citizenship, than any which spring out of the same relation to a State ? Will any one compare the office of President of the United States, in point of dignity and power, with that of Governor of any State in the Union ? Is not the same equally true of the Judges of the Supreme Court of the United States compared with the Supreme Court of any State? The same may be said of every corresponding office. Do I disparage the States? How can I? when I only state facts of which they themselves are the authors. Citizenship then, to the United States,' involves in itself a title to offices of honor, profit, and trust, fair exceeding in power, dignity and. value, any which a State can bestow.
    But there is a still more important consideration. Grant, for the sake of the argument, that South Carolina, before the Constitution of 1789, was a perfect sovereign. Grant, also, that she was entitled to exclusiv alegiance. Is it not clear, that she was bound to yield a co-extensiv protection! Alegiance, according to the English law, is due evry where, at home, and abroad, because protection is due from the King to the subject, evry where. But South Carolina has declared, by adopting the Constitution of the United States, that she cannot, or that she will not any longer, protect her citizens abroad. She has acted wisely and justly in so doing, whether we regard her or her citizens. If a citizen of South Carolina be imprisond or oppressd in a foreign land, does he ever think of an application to the Governor or Legislature of the State 1 If he did apply, would they not immediately refer the matter to the President of the- United States, as the proper officer markd out by the State itself? Suppose the Governor or Legislature should send a special commissioner abroad, to France, or Spain, or Turkey. Would he be recognized?- Would he not be told, “we cannot hold any diplomatic intercourse with you: for we know not South- Carolina We know the United States, as a nation and a Government; and although we know South Carolina, geographically and historically, to be a part of the Union, yet we can have nothing to do with her on the principles of international intercourse. Would not Baron Humboldt, Prince Meternich or Chancellor Brougham smile, if our Envoy spoke of South Carolina as a nation, and of her government as a national government?' Could an envoy worthy of such a mission, be found, who would hold such language ? Again, would- the citizen of South Carolina, if oppressd or imprisond abroad, apply to the consul or minister of the United States, by virtue of his title of citizen of South Carolina1 Could he be listened to in any other capacity than as a citizen of the U. States ? He would be heard and relievd, not as a Carolinian, but as an American.
    
    South Carolina then, by adopting the Constitution of the United States, has substituted the States and their government, instead of herself and her government, as protector of her own citizens on the high seas and in foreign countries. If she has trans-ferrd the power and the duty to protect, must she not have trans-ferrd the correspondent alegiance ? If the Emperor of Austria were to transfer such a power and duty to the king of France, as to an Austrian subject; would any feudal jurist doubt that he trans-ferrd alegiance too? The question would not be, whether lie-had transferrd any, but whether he had not transferrd all? Put the State on a footing with the Austrian Emperor, as an absolute sovereign; before she adopted the Constitution of the United States; yet, after that, she cannot, like him, expect any less consequences from DIVIDED PROTECTION, than DIVIDED ALEGIANCE.
    A very striking ilustration is afforded us by the page of Talbot vs. Sanson, in 3 Dallas, p. 133. Ballard and Talbot had been citizens of Virginia. It was contended that they had expatriated themselves, according to the law of Virginia, and had become citizens of the French Republic. The main question was, whether, if they had done all this, they had ceased -to be citizens of the United States, so as to be irresponsible to her laws. Judge Paterson says — “ Ballard was, and still is, a citizen of the United States, unless perchance he should be a citizen of the world.” “ Ballard was a citizen of Virginia, and also of the United States. If the act of Virginia affects Ballard’s citizenship, so far as respects that State, can it touch his citizenship, so far as it regards the United States ? Alegiance to a particular State is one thing, alegiance to the United States is another.” p. 153, 4. Judge Iredell says — “ It seems most probable from this record, that Talbot was a citizen of Virginia. We are, however, undoubtedly to consider him a citizen of the United States.” He becomes a citizen of the new country at his peril. The act is complete, if he has legally quitted his own — if not, it is subordinate to the allegiance he originally owed. By allegiance I mean that tie, by which a citizen of the United States is bound as a member of the society.” p. 164. Judge Wilson, who had tried the case on circuit, and decided on the same principles against Ballard and Talbot, gave no opinion, p. 168,135. Judge Cushing decided likewise, that Ballard “ was an American citizen,” p. 168. And the Chief Justice, our own John Rutledge, says, p. 169, there is “ no proof that Captain Talbot’s admission as a citizen of the French Republic, was with a view to relinguish his native country ; and a man may at the same time enjoy the right* of citizenship under two governments. ” Patterson, Wilson and Rutledge, were three of the Convention who framed the Constitution of the United States. Did they speak thoughtlessly or ignorantly, when they spoke of citizenship to the United States, of alegiance to the United States, of double alegiance, and double citizenship? We, at least, on my side, have neither the heart nor the head to say so.
    I have said, that the State has cut off her citizen from all the protection corresponding to national power and international relations, and has deliverd him up for all of these purposes, to the United States, and besides, has establishd between him and the United States, all the same relations, political and civil, that exist between her and him. What is he then , as to the United States? Is he a slave orafreedman? Is he an alien friend, a subject or a denizen ? All will answer, none of these. What is tile Constitution of the United States, but the most authoritative important and solemn act of naturalization, that has ever been known ? By adopting’ the Constitution of the United States, do not the States, and the people declare, that each citizen of each Sta,:0 becomes, by virtue of that act, a naturalized citizen of ev-ry other State as a separate community, and of all as one nation? This was the last act of naturalization, that each State did per» form, and the last, that any one ever can perform, while the Consti-tulion of the United States. shall be her supreme law. But tho highest testimony on this subject, is found in the Constitution of the United States itself. By the 2d clause of the 2d sec. of the 1st art. it is declared, that “ no person shall be a representative, who shall not have been seven years a citizen of the United States.” The 3d clause of the 3d sec. of the 1st art. provides, “ that no per» son shall be a Senator, who shall not have been nine years a citizen of the United Stales.” The 5th clause oí the 1st sec. of the 2d art. enacts, that « no person except a natural born citizen, or a ■citizen of the United States at the adoption of this Constitution, shall be eligible to the office of President.” Thus, the States, by their special delegates in the Convention, which forrnd the Constitution of the United States, the same Slates by their other set of special delegates, in the old Congress of the 'Confederation, and tho people of each State by adopting it in a State Convention, have declared evry nativ and evry naturalized alien to be a citizen of the United States, and that tho United States had citizens even before that Constitution. Names are sometimes things. But in the pro» sent case, it is ¡material whether you give the name, without declaring the thing, or declare the thing without giving the name. Let South Carolina declare her citizens to be citizens of the United States, would not all the consequences follow ? Let her, on the contrary, declare the relations, which I have explained to exist between her citizen and the United States, and would any one hesitate to affix to those relations, the name of citizenship 1 All the acts of the national Government; the State Governments repeatedly ;. our history ; all our political newspapers, pamplets and speeches; the decisions of Courts, and the common language and familiar opinions of the whole country, for more than fifty years, have assignd the relation of citizenship of the United States, to them and their inhabitants, and the name of citizen to each nativ and naturalized inhabitant.
    Having now explaind the nature of alegiance ; shown that alegi-anee is due to the United States ; that divided alegiance is familiar to the political history of Europe, and our own country ; that the relation of an individual to the United States is higher and more important and comprehensiv, than that to the State ; that that relation is citizenship ; and that the political name of each person, bearing that relation, is citizen of the United States, L proceed to the next step, in the chain of the argument. Having now shown that.alegiance exists, that it is due to the United States, and due by a citizen, I now proceed to show more fully than I have yet done, to whom it is due. I do this in deference to the opposit side, who will not be con» tent with all that I have already done ; for it is with them a very fe&sy and sufficient answer to say, of all that has -been brought against them, the whole is a mistake, or usurpation. I must then, go a step farther, and show to whom alegiance is due. And here my friends insist that I must show them a sovereign, for they will not admit of alegiance to any but a sovereign; and they will not admit, that alegiance can be divided, because they deny that sover-eignly can be divided,. I trust that I shall be able to prove, beyond all doubt, independently of what has been already offerd, Chat alegance can be divided, because sovereignty can be divided. Then shall I venture, to make them acquainted with the unknown sovereign, in whose dominions they live, without knowing, him ; under whose protection they are, both at home and abroad, and yet deny him existence ; through whose authority they fear not the mightiest monarchs upon earth, and yet they know him not; whose name they bear, as a prouder title than that of Athenian or Roman citizen ; and whose star-spangled banner they esteem more glorious than the eagle of Rome or Napoleon; and yet this sovereign is but a name. “ Magni stat nominis umbra,” is all the acknowlegment they can vouchsafe him.
    I shall continue to treat this as a great practical question. I shall accordingly apply none but such tests, as the political common sense of evry American must sanction. My arguments shall consist of a series of such tests; for 1 desire as much as possible, to avoid either recondit learning, or theoretical philosophy. A practical question must be settled by fads, not by refined speculations and ingenious reasonings. I insist then that the test of Sovereignty is power. Sovereignty without power is impossible. Sovereignty without power is suspended animation, if not death. Sovereignty with power is life, intelectual .and physical.' Sovereignty can only be known by the manifestation of power. Power is its language and its arms. Without it, what is it but Samson, shorn of his locks ? In a state of nature, are the blind man, the cripple, the deaf, and dumb, the palsied, the idiot, perfect Sovereigns in the natural Sense of the term ? They have the same rights as the man who is perfect in mind and body : but have they the same power 1 What are they, - but ilustrations of the subjects of the Autocrat of Russia, or the Pacha of Egypt 1 Are the boors of Russia and the Egyptians Sovereigns 1 Can there be but one answer 1 they have a right to be, but they are not. Power is then the test of Sovereignty ; because it is the only manifestation of Sovereignty in the individual, or the community. Right then, is not — power only, is the test of Sovereignty. Hence, it is so decidedly a practical question, to be settled by facts.’
    If then the enjoyment and exercise of power be the natural test of Sovereignty as to the individual, and the political test as to a community, the next question is, cannot power be divided, and as a matter of oourse cannot Sovereignty be divided 1 No one doubts, that power can be divided ; but, because Sovereignty is regarded as the source of power, and has therefore something of the invisible and intangible in its nature, it is therefore concluded, that it is indivisible. Let us grant it, for the sake of argument. Then the opposit side must accept one or other part of the following \alternatir. If Sovereignty callUut be divided, and the person or community invested wu.ii n, continuos as perfect a Sovereign, after parting’ with power, as before, then it follows, either that all Sovereignty, being indivisible, is parted with, when the first portion of power is transferred, or nono is parted with, until the last atom of power is yielded. No one will contend for the first: can any one seriously insist on the last ? If, however, it bo insisted on, then clearly, if a Sovereign retains no power, hut that of sending an Ambassador to the little Republic of San Marino, he is still, according to this scheme, as perfect a Sovereign as Napoleon himself in 1811. But let us ilústrate by cases. The powers conferrd on Augustus were to levy armies, to raise money, to make war, to make peace, to command all the forces of the republic, to have the power of life and death within, as well as without the city, and to do very thing else, which the Consuls and others invested with supreme command, had a right to do. Did the Senate and Roman people continue as perfectly Sovereign, after as before this event 1 Theory may reply that they did; but what is the. answer of history, what of practical political philosophy, what of the statesman and patriot ? The political common sense of evry American, will answer, as the Senate and people of Rome would have answerd, they did not. Their Sovereignty was diminishd precisely in the degree to which they parted with power. Let us reverse the case. A despot, admitted to be a perfect Sovereign, comes to the conclusion, that he ought to share his power with the people. He calls into being a Legislature, consisting of a Senate and House of Representative ; he adds an independent Judiciary; he reservs a veto on legislativ proceedings, subject to bo aunulld by a vote of two-thirds of each branch ; in a word he gives them such a Constitution as that of the U. S. Would any one argue that he was still a perfect Sovereign ? Should any ingenious dialectician undertake to prove it, the quondam despot would rebuke him into si-fence,- as Henry 3d of France did Cardinal Perron, when he oflerd to prove, as a specimen of his logical skill, that there was no God. Would not the monarch say, 1 was once a perfect Sovereign; but I have divided my Sovereignty with my people ? Take another case from natural law. A man is cast away on a desert Island. He is the only inhabitant. Let a dozen others be cast away, each separately. They speak the same language. They meet in'the center of the Island. They agree to live together, and form a compact, fixing the rights and duties of each, and of course the restraints laid upon the free will and power of each. Is each as perfect a Sovereign, as he is aeknowleged to have been, before the contract ? Why was he a perfect Sovereign before ? Is not the answer this ?• because he had then no law but his own will. Why is he not a perfect Sovereign after ? Can we doubt the answer? because he has now another law controling his own will. Has he not ceasd in fact, to be Sovereign ? precisely to the extent, to which he lias substituted the joint will of all, for Us own separate will.
    We are aecustomd to speak of sovereignty as the source of pow-ér ; but, are they not in truth, convertible terms ? Are they not dif. ferent forms'of expression lor the same attribute of the same being, man, whether in a state of nature, or a state of society ? We have seen in the case of the despot, and of the shipwreckd on the desorfc island, that the individual sovereign can divide his power. We have seen, in the ease of the Roman Senate and people, that the political sovereign can divide his power. If power be the only test and manifestation of sovereignty, that is of the will of the sovereign, and if power can be divided, on what principle of sound logic can we resist the conclusion, that sovereignty is divisible! This becomes still more manifest, if I am right, in my farther view, that sovereignty and power are ready one and the same thing. They are the dbUily, not merely the right of a sovereign to act. In the nature of things, they can be divided ; and, it is matter of fact that they have been, from the moment society was first formd.
    The various actions of the individual, are the manifestations of his power. Government and its administration, are the manifestations of the power of a community. Government is the permanent depository -of power ; because,.through it, the permanent will of the sovereign is manifested. It is the permanent declaration of his will. If a despot establishes a legislativ and judicial department, but keeps them subject to Ms own power, it is plain,, that he is still a perfect sovereign; because, the Government is still his, and his only, and is therefore the manifestation of his will only. Now, if he alone were to create the new form of government, and should make it like the English, reserving to himself the power of an English monarch •, yet, inasmuch as his will only could no longer make the law, it cannot surely be denied, that he would cease to be a perfect sovereign ; in other words, that his sovereignty would be divided, and that he would be less sovereign than before, precisely in the degree, to which he had transferrd soverign power to others. This is undoubtedly the case in the English system.; for Blackstone, as cited on the o"thor side, shows us, that the sovereignty in Great Britain is lodged in King, Lords, and Commons, 1 Com. 51 — and, yet after-wards, at p. 241, he says “ the law ascribes to the King the attribute of sovereigntythus declaring that if the King himself had origi-naly created the Parliament, although he still continued sovereign, (to the extent of course, only of the power retaind) ; yet, that the full and perfect original sovereignty of the King, was now in the King and Parliament, and of course divided between them, to the extent to which each possessd a portion of the primitiv sovereignty, supposed to have been origmaly vested only in the King. But, if the despot, instead of creating such a government for his people as the English, were to create such a one as our State Government, considered apart from the Union, would he not transfer sovereignty, because he would transfer all his power to the people; and, would not the act be equivalent to the abdication of his throne ! Again, if he were the master of thirteen provinces, and were to create, for the common government of all, such a system as that of the United States, reserving to himself only the administration of the local and domestic concerns of each province, is it not plain that he would part with a very large portion of power, and that the people of the thirteen provinces, to the extent of the grants, would become his substitutes, as to the sovereign power yielded! in other word?,, sovereignty would be divided between them, because supreme power had been so divided. The common government would no longer be the manifestation of his will, but of the will of the people of the thirteen provinces. Let us now suppose South Carolina to have been originaly the owner of all the Territory, and the absolute ruler of all the people of the thirteen colonies, and that she had calld into being the other twelve State Governments, and the Government of the Union. Neither those nor this, would, after their organization, be the manifestations of her will; because they would be de-pendant on others, not on herself, for their continuance and administration. Would she not have parted with power, with sovereignty, to the extent to which the other Sates separately and jointly exer-cized the very power she had originaly possessd 1 Would- not her power, would not her sovereignty be divided, precisely in the degree in which others held, what she had once possessd 1 If, then, the State, instead of being the sole owner and ruler of all the rest, and the sole creator of the other separate Governments, and of the joint system, had merely united with them as her co-equals, like the ship-wreckd thirteen, to establish a common Government, would she not, by a still clearer and stronger conclusion, have retaind only a partial sovereignty, to the very extent only, to which she had retained power! Would not a limited separate sovereignty, still have remaind, but would not a divided sovereignty have existed between her and the partnership of States, to the extent to which they possessd power originaly vested in her? Her sovereignty had been divided. Two sovereigns existed as to her territory, people, rights and interests. Did she still continue a perfect sovereign ? If so, that is perfect, which has lost many of the chief attributes of perfection. If so, the despot is still such, though he has become a limited monarch. Political common sense never can sanction such contradictions.
    I trust I have now establishd on the principles of a sound practical political philosophy, and by familiar ilustrations, that power is the test of sovereignty; that sovereignty and power are, when rightly considerd, one and the same; that power can be divided, and therefore that sovereignty can be divided; that divided power is divided sovereignty. I proceed to show, that as divided alegi-anee was attested by the records of our political history, so is the doctrin of divided sovereignty.
    Let me begin, by asking the question, who are now, not who were in former years, the successors of King, Lords and Commons, as to South Carolina 1 It is obviously immaterial in what mode the succession came about, whether by violence, or by amicable arrangement. It is a question of fact. Now, does South Carolina possess any vestige of the great powers vested in K. L. and O.? Cannot she be involvd in a war against her will? Must she not lay down her arms, whether she wishes or not, if Congress makes peace ? But why put a series of instances, when it is obvious that the practical test of powers vested in, and exercised by the U. ,S. and State, as to the people of South Carolina, demonstrates both to be the successors of King, Lords and Commons. In other words, there are now two sovereigns, because government was divided by the division of power, and divided power is divided sovereignty.
    
      In the 83d No. of the Federalist, it is said, “ we consider the State Governments and the National Government, as they truly are, in the light of kindred systems, and as parts of one whole.” In 3d Dallas, 473, in the case of Commonwealth of Pennsylvania v. Gobbett, in the Supreme Court of Pennsylvania, Chief Justice M’Kean says — “The Government of the United States forms a part of the Government of each State.” “These, (the State and National) form one complete Government.” Mr. Jefferson, in his letter to Major John Cartwright of 5th June, 1824, (vol. 4 p. 396) says “ with respect to our State and Federal Governments, I do not think their relations correctly understood by foreigners. They generally suppose the former subordinate to the latter.— But this is not the case. They are co-ordinate departments of one simple and integral whole. To the State Governments are reserved all legislation and .administration, in affairs which concern their own citizens only ; and to the Federal Government is given whatever concerns foreigners arid citizens of other States, these functions alone being made federal. The one is the domestic, tile' other' the foreign branch of the- same Government, neither having control over the other but within its own department.” Thus, according to Mr. Jefferson, the Government of the U. S. is as to S. C. its own Government, for the, administration of its foreign affairs. In the letter of the Convention which framd the Constitution of the United States, to the old Congress, they say 41 It is obviously impracticable in the Federal Government of these States to secure all rights of independent sovereignly to each, and yet secure the interests of all. Individuals entering into society must give up a share of liberty to preserve the rest.” In Chisholm v. Georgia, 2 Dallas, p. 419, Judge Wilson, (one of the signers of the Declaration of Independence, and one of the framers of the C. U. S.) says, “ as Judge of this Court, I know and can decide upon the knowledge, that the citizens of Georgia, when they acted on the large scale of the Union, as'a part of the people of the United States, did not surrender the supreme or sovereign power to that State : but as to the purposes of the Union, retained it to themselves. As to the purposes of the Union, therefore, Georgia is not a sovereign State. Judge Paterson, another of the framers of the C. U. S., says, in Talbot v. Janson, 3 Dallas, p. 154, “the sovereignties are different, the allegiance is different, the right too may be different. Óur situation being new, unavoidably creates new and intricate questions. We have sove-reignties moving within a sovereignly.” In the same case already cited, of Pa. v. Cobbett, Ch. J. M’Kean says: — “ Before it (C. U. S.) was adopted, the several States had absolute and tmli-mited sovereignty within their respective boundaries : all the powers, legislativ, executive and judicial, excepting those granted to Congressj under the old Constitution. They now enjoy them all, excepting such as are granted to the Government of the U. S.” In the exposition of 19th Dec. 1828, publishd by order of the H. of Rep. of S. C. and universally ascribed to Mr. Calhoun, we have the following language: 44 This very diversity (of interests) the Constitution itself recognizes, and to it owes one of its most distinguished and peculiar features, the division ge the sove~ BEIC!N P0WER BETWEEN THE STATE AND GENERAD GOVERNments.” p. 25. “ Thence the division of the sovereign pouter; and it is upon this distribution of power that the whole sys-tern of our Government depends.” p. 26. “ Our system, then, consists of two distinct and independent sovereignties.” p. 20. “ In which (three-fourths of the States,) the sovereignty of the Unionx under the Constitution, does now actually reside.” p. 27.
    May I not then say, with much confidence, that I have esta-blishd the doctrin of double Alegiance and double citizenship, of divided government, divided power, and divided sovereignty 1 — May 1 not add that I have establishd them on the basis of political philosophy and political common sense, and have sustaind them by testimonies the highest and clearest, derived from the political history of Europe and of our own country 1 After such a review of principles and authorities, may I not ask, with a just pride in the soundness and antiquity of our opinions, who is it that ventures on strange and perilous novelties 7 Who are the Innovators ?
    Having now shown what alegiance is, that it is susceptible of division, that it is due to the U. S. and that sovereignty is divisible, 1 proceed to the part of my subject in which I am to answer the question, “to whom is alegiance due?” Not satisfied with all that has been shown, my friends still return upon me, with the enquiry who is the Sovereign ? Show us the Sovereign. I have promisd to make known to them their unknown Sovereign; and I comply. Let me then lead them into that presence, more august than any which history has consecrated in the language of the most profound and eloquent writers. For, not the counsel of Amphyetion; not the Homan Senate, in presence of the Gauls or of Cineas; not the Assembly of Barons at liunnemede; not the Convention Parliament of 1688; not even our own Congress of 1776, can compare in majesty and power with the Sovereign of this Union.
    1 shall not discuss the question, whether the people of the States are to be regarded as having adopted the Constitution of the United States, as one people or as thirteen peoples. It is not necessary to my argument; 1 grant, for the purposes of the argument, that they adopted it, each as a separate people in their State capacity, if, as one people, then the sovereignty of the Union would reside in that one people. If as separate peoples, still the sovereignty of the Union would not reside m each separately, but in the whole as a community of States or peoples; bound together by the Constitution and for the purposes of the Union, and within the scope of the bond, forming one State, by a community of States, one people by a community of peoples.— This community of States or of peoples, is the sovereign of the Union. This community is the depository of all the powers eon-taind in the Constitution. The National Government is the Government of one Community, not of many. Each of the many has its own separate Government: all as one, have their own common Government-. This Government, created if my friends please. by ilio separate Act of tlie States, became, by that very Act, aot the separate Government of each, considere! apart; but the common Government of all, considerd thenceforth as one. I cannot agree to tho doctrin of the exposition already cited, when it insists, p. 27, that the soveignty of the Union resides in three-fourths of tho States. The error lies in not distinguishing be-tweon the mode in which sovereign power is manifested, and the sovereign, as the ultimate depository; between the tribunal author-iced to declare the sovereign will, and those whose will is de-dared. Lot us ilústrate by the instance of a State. In whom ■does the sovereign power there reside ? Is not the only answer— in the people 1 Would any one say it resided in the majority? The majority declare the will of the whole; because by the compact the will of the majority is the will of all. ' Does not the ultimate sovereign power reside in the minority, as much as in the majority! The majority of yesterday, is not that of to-day: nor will that of to-day be the majority of to-morrow. It is the same of the minority. Apply this to the community of the States. Does the sovereignty reside iu the three-fourths ? If so, there is no sovereignty in tho remaining one-fourth? The three-fourths, who pass on an amendment now, are different from the three-fourths, who pass on the next amendment. Thus, some of the original threefburths would lose their sovereignty, by passing into tho minority; while some of tho original one-fourth would resume their sovereignty by becoming a part of the majority: and where would new States, intermediately admitted, be? Certain- , ly not in tlie majority: and therefore they would have no share in the sovereignty. Such conclusions can never flow from sound principles’. The only rational sound doctrin is, I apprehend, that the sovereignty of the Union resides in the community of States ■or peoples, forming the Union as one State or one people; just as it resides in the community of individuals forming the State as one State or one people. A community of individuals, originaly sovereign according to the law of nature, forms one sovereign State: and so a community of States, originaly sovereign, according to the -law of nations, forms the sovereign State. A simple majority in the former instance, have the power by the compact, to declare the will of the one sovereign consisting of a majority and tho minority. And so in the latter instance, a majority of throe-fourths of the States or the peoples, have power to declare the will of the one sovereign, consisting of that majority, and of the minority of one-fourth. I have now shown my friends the sovereign of the Union, and I trust they are satisfied. I agree with them, that we cannot say, Alegiance is due to the Constitution, to Congress, to tho National Judiciary, or to the President. It is due to them, neither singly nor jointly. But it is due to the one sove. reign I have menliond, to the one community of States or peoples.
    The next subject which we have to consider, is — what is the relaliv character of the Alegiance due to the- State and to the United States? Is either subordinate to the other, or are both equal in degree and dignity? I maintain that the alegiance due to the United States is superior is paramount to that which is Sue to the State. This also is a practical question ; and Í shall accordingly examin it by tests so plain'pnd intelligible, as to come home to the common sense of evry man. It has been already touchd upon; and I now propose to present another view of it.
    We have seen that double alegiance and twofold citizenship can on principles, and do in fact exist — that this alegiance in our country, is due to the United States and the State — that power and sovereignty can be divided; and that we actually live under two sovereigns, the State and the community of 24 States or peoples, forming one State or people for the purposes of the Union. I hold that a superior alegiance is due to that sovereign, who possesses the highest order of power, precisely on the principle that a higher obligation was due to the king as the supreme Lord, than any Lord, intermediate between him and the vassal. I proceed now to show the great superiority of the United States over any particular State, in relation to the power yielded to the former, by the peoples of the States, My object is to speak the plain, honest truth, by showing that after all that may be said about the reservd rights of the States, the powers actually vested in the community of States, very far exceed in dignity, extent and value, any powers possessd by any particular State. These powers are, in the highest and most appropriate sense of the term, political — and since alegiance is, beyond all doubt, a political tie, those powers must give a decided character to the alegiance of the citizen. To ilústrate — will any one deny, that the alegiance due to a despot is of a higher order than that due to a limited Monarch; simply because the despot is .a more complete sovereign than the limited Monarch! Was not the alegiance due to South Carolina before she adopted the Constitution of the United States, granting her to have been then a perfect sovereign, of a higher order than that which is now due ! Was it not so; because she possessd all power! If then she has lost sovereignty, with the sovereign power she has ceded; if power, i. e. sovereignty, can he divided; if divided alegiance follows divided sovereignty; if divided alegiance, implies two sovereigns, the question manifestly arises, which of the sovereigns possesses the higher order of power ! In other words, does the community of States possess a higher order of power, and a controlling power in relation to a single State, or does that one State possess them, in regard to that community! Can any American, who understands his country’s institutions, doubt!
    It will be observd, that I do not speak of Congress, the President, the National Judiciary, as possessing the power. The powers are indeed exercised by these Departments; but they are the property, and under the control, not of those Departments, nor yet of the separate States or peoples, but of the common sovereign, the community of States. It is admitted on all sides, that the position is correct, as to the department. Now, as to a State. It is of no avail to say, that she can resume the powers granted. She cannot, without an act of secession, by consent, or by an act of revolution, which violently breaks asunder the bond of. Union. Grant all that can be askd, that the Constitution is a treaty; yet can a sovereign be release! mom a treaty, but by eonsent, or by a separate act of his own, annulling the treaty : in other words, by an act of war 1 If the other party docs not admit the treaty broken, does he not, by declaring’ it broken, and refusing to abide by it, give adequate cause of war to the other 1 No one doubts this. It follows, that a sovereign has no other alternativ to be discharged from a compact, than the law of consent, that is the law of peace ; or the law of violence, that is the law of war. It must be the same with a State, even if we concede the Constitution of the United States to be a mere treaty. She cannot, constitutionaly, set up her separate will against the joint will of the community. The question — what she may lawfuly do upon an aleged usurpation by one of the common agencies ? is a question which I do not consider here, because it is beside my object. It is sufficient for me to say, that she has constituted the will of the community of States, paramount to her own separate will i and that she must submit to that will, whether she approve 'or condemn, as long as the Constitution of the United States is her Constitution. Which then is the superior sovereign 1
    Let us now look at the character of this sovereign community of States, or peoples, (not at this community of sovereign States or peoples) and at the powers possessd by that community.
    This community is a nation, in the highest and most comprehen-siv sense of the word. The States are not Nations- in any appropriate sense of the word. “ It is only in our united character, that we are known as an empire, that our independence is acknowledged, that our power can be regarded, or our credit supported abroad.” Wash. Lett. 8th June, 1783, 5 Marsh. Wash. p. 48. “ Every step by which they have advanced to the character of an independent nation, seems to have been distinguished by some token of providential agency.” Wash. Inaug. Address, 6th April, 1789, Presid. Speeches, p. 31. “ The act of independence did not hold out to the world thirteen sovereign States, but a common sovereignty of the whole, 
      
       in their united capacity.” 2 Ramsay’s United States, p. 174, 5. “ The separate independence and individual'sovereignty of the several States were never thought of by the enlightened band of patriots, who framed this Declaration.” Gen. C. C. Pinckney, Deb. H. of Rep. of South Carolina, p. 43. Dr. Ramsay, in his Chronological Table, speaking Anno 1787, of the Federalist, says, that it aided in «enlightening the public mind in the pure principles of Government, and in removing prejudices in favor of a high toned Slate sovereignty, incompatible with the general good”. Charles Pinckney, in his observations on his plan of Government, says, p. 12, “the idea, which has been falsely entertained, of each being a sovereign State, must be given up, for it is absurd to suppose, that there can be more than one sovereignty within a Government.” “ It must be obvious,” says the same gentleman, in Deb. H. of R.
    
      goutli Carolina, p. 72, “that without a superintending Government, -j. Jg imp0SSj]jie the liberties of this country can be long preserved.” I do not agree fully with either of the Pinckneys, but certainly tho truth that the United States constitute one Nation, and that the States are not Nations, is found in various forms scatter'd all along the highway, which our country has been traveling since 1776. It would be difficult to find historical evidence on any point more full. particular, and various.
    
      Nono an independent nation is, ex m termini, a sovereign, “ The 2aw 0f Nations,” says Vattel, b. 1, ch. 1. s. 12, “ is the law of sovereigns.” Does any one question, that the law of Nations is the law of the United States, as a free, sovereign, and independent Nation ? made such, it is true, by the concurring act of the peoples of the States, but irrevocably such, as far as the separate action of any one State is concernd. Is any one so bold as to assert, that the law of Nations is the law of the States, separately considered ? As to all the rest of the world, they do not exist, and are utterly unknown as Nations. As between themselves, have they not given up to the common sovereign, the community of States, the power of Regulating their mutual commerce, and their trade with the Indian tribes ? llave they not given to the Supreme Court of the United States, jurisdiction over controversies, between two or more States 1 Have they not agreed to be subject to suits in the same Court, by a sister State, or by a foreign State 1 “ It is inherent, in the nature of sovereignty,” says the Federalist, No. 81,« not to he amenable to the suit 'of an individual without its consent.” It is equaly true of amenability to the suit of another State, for equality makes no difference. There is no substantial difference between tho liability of a •nobleman to be sued by his equal, and his inferior. Exemption from any suit at all, is the only valid test. It is no answer to say, that the power has been granted by each State. The power to sue an individual is understood to be granted by each individual, on the principles of the social compact. Is the character of the liability alterd because it originated in the assent of the individual or the State, provided it be permanent and irrevocable by any separate act 'of his or the State, while they continue members of the community, to which the power now belongs? When Varro and JEmilius agreed to command the Roman army, on alternate days, neither ceasd to be consul during the other’s command. Charles the Fifth abdicated the throne of his own accord ; but James the Second was forced into exile. Was either less a sovereign the day after ? Was not the advantage in fact, if there were any, on the side of James ? The States then have parted with this essential feature of sovereignty, and have vested it, not in a political, but in a judicial tribunal, giving to it, therefore, the character of legal process, against a Corporation, not of diplomatic adjustment between Sovereigns.
    Again, let us open any book on the law of Nations, and we shall find that the mass of it consists of subjects, to which South Carolina separately is a total stranger. The law of war, by land and by sea; the regulation of commerce, all round the globe ; the power of making treaties ,- of sending and receiving ambassadors, and other ministers, and consuls, &c. Of the 500 pages in Vattel only. 183 can Be regarded as relating- lo a State, (the rest being- properly international ;) and they are common to the United States, and a State, being properly domestic, while the State is unknown separately as to the rest of the volume.
    Admiralty jurisdiction is one of the most striking features of international jurisprudence. The Admiralty is emphaticaly a Court, sitting under, and administering the law of Nations. No such feature exists in the State system. It is only found m that of the Union.
    The power of naturalization, is another very remarkable test of national character in the Union, and not in the States. To be made a denizen, is to be born into civil life ; to be made a citizen, is to be born into political life. South Carolina cannot make a citizen of the United States. The United States can make a citizen of South Carolina. She has abdicated the power, while the Constitution of the United States shall be her Constitution — the little less than creativ power, of enabling the alien subject to be born into the glorious liberty of an American citizen. Can that be a nation, in any proper sense of the word, which has given up this peculiar and important power ? Now, there is no difference between the nativ born and naturalized citizen. With the single exception of the Presidency and Vice Presidency of the United States, they are on a footing of perfect equality. What a power is this, to confer on a foreigner all the privileges and advantages, not merely of a citizen of the United States, living in- a territory, but of a nativ citizen of S. Carolina 1
    
    The power over the Militia is another of the unquestionable proofs of the superiority of the United States. Congress has power to organize, arm and diseiplin the militia; but the States can only appoint to the offices created and arranged by Congress ; and train, the Militia according to the diseiplin prescribed by Congress. Need I ask, which is the superior power 1 And how much is this power enhanced, when it is considerd, that the President is empowerd on his sole responsibility to demand the militia, under the 14th cl. of 8 s. of 1 art. C. U. S. as insisted on by the whole country, against Govrs. Griswold and Strong. This doctrin has been since confirmd by the Supreme Court of the U. S. in Martin vs. Mott, 12 Wheat, p. 19, and what is remarkable, the President issues his orders, not through the Governor of the State, but directly to any officer oí the Militia Houston vs. Moore, 5 Wheaton, 1.
    I notice the power of making war, which the States are prohibited from exercising separately ; and which the community of States execute by their Legislature, against the will and interests of any State, for the purpose of noticing a striking circumstance, connected with the history and character of alegiance. I refer to the fact, that the contract of alegiance is essentialy a -war contract. The obligation of the vassal was summd up in the obligation to serve the Lord in arms -. the duty of the Lord was to defend the tenant by arms. The tenure of land was originaly altogether military: and Sullivan supplies the deficiency of Lexicographers, when he tells us, L. 12, p. 119, 4to, that warranty is derived from war ; because in the old real actions, the trial was by battle. Thus, whether in a law suit or an invasion, the war principle constituted the essential feature of fealty and homage, as the ancient originals of alegiance. Now, in the Modern European Law, only the monarch has this P.ower» ^l.tbe military tenures having been abolishd. Is hot the tie of Alegiance still the same : and is not now, and has not always the principal feature been the military ? This characteristic belongs exclusivly to National, not at all to State Alegiance. And what has treason always been, but essentiaiy and chiefly making war on ¡govereign ? And have not the States themselves acknow-ledgd this, by affixing this single feature to treason 1 The war power is then essentiaiy and unchangeably the peculiar power which draws after it, as a matter of course, Alegiance and treason.
    I cannot but remark, that the powers enumerated in the Declaration of Independence, are the very ones ceded to the community of States. “ As free and independent'States, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things, which independent States may of right do.” Now, why are these powers mentiond and no other! Plainly, because they are the great characteristics of free, sovereign and independent States. And are not these the very powers, which constitute the community of States, a Nation both at home and abroad ?
    In regard to commerce, both foreign, and between the States, and with the Indian tribes; in regard to coin, foreig-n and domestic ; in regard to every thing, which respects the whole Custom House Department ; in regard to the imposition of taxes and duties, bankruptcy, the whole Post Office establishment, patents and copy rights, besides many other matters, the community of States legislates for So. Ca. and acts personaly on her citizens, and directly on their property ; but So. Ca. cannot legislate for the Union. Which then is the superior Sovereign 1 Besides, the citizen, common to both, is bound in case of concurrent jurisdiction, if they conflict, to obey the nation not the State. Ansley vs. Timmons, 3. M’Cord’s Law Bep. p. 329. And when the Supremo Courts of the States yield to the Supreme Court of the U. S. their own opinion on such questions. 10 Johns, 246, 7., 17 do. 108. 19 do. 164. See also 9 Johns. 507. 3 Sergt. and Rawle, p. 179. 13 Mass. R. 16.— Which then is the Lord paramount in dignity and power — to adopt feudal language and feudal allusions ? Upon facts, there can be but one answer to the question, whatever speculation might imagin.
    Let me now present another important consideration, in substance already oflerd; but in such matters the peculiar form, in which an idea is clothed, often exhibits it in a more striking light, than could be done by a dozen others. Self-government is one of the most striking features of a nation: self-government in regard to both foreign and domestic concerns. Does not the community of States enjoy this attribute, in a far higher degree than any single State? Do they not actually represent and control, legislate for at home and negotiate for abroad, the States, the people of the States, the community of States, and the community of peoples? But the States and the peoples of the States separately can exercise no correspondent power as to the Union.— To what a prodidgious extent then has 'South Carolina ceded to the community of States her power of self-government! And has she parted with no sovereignty no alegiance? Let the universal sentiment of mankind, and the political common sense of Americans answer the question.
    Let me present another consideration. To he posscssd of a government, complete in all its parts, invested with national power at home, and international power abroad ; subordinate to no other government ; supreme over all within its limits ; are among the highest characteristics of superior, compared to inferior sovereignty. Yet these are the characteristics of the national, compared to a State Government. The latter is indeed complete in all its parts, with a view-to its ends. But, as there is no comparison between the dignity and value of its ends, those of the General embracing, as to the Union, all the principal objects of the State Governments as to the State, and a very large amount of power and duty of a still higher order; it follows undeniably that the National must be a much more complete Government, than that of a State; because it is more elevated, comprehends a greater variety of important objects, and wields a power altogether superior.
    I shall mention but one more test. It is that which places each State, as to its Constitution, to an undefined extent, in the power of the community of States. I refer to the amendatory power. No State can amend her own Constitution inconsistently with that of the Union. But the Union does not so much as Consider how an amendment to the Constitution of the United States may operate on State Constitutions, because these must yield to that: evry State having deelard the Constitution of the United States, -and its amendments, supreme when compared to the present or any future Constitution of a State. The State Constitution undeniably stands, then, in relation to the Constitution of the United States, precisely as an Act of Assembly to the State Constitution, in point of its authority to repeal. The Constitution of the United States, repeals the State Constitution, just as this repeals the Act of Assembly. It is in vain to say that this is humiliating to a State. Are names or things, form or substance mortifying!— Now, is not this the naked, unvaroishd truth? Who doubts it?— I, at least, not doubting it, say so frankly. Let us offer another ilustration. The Constitution of the United States, Art. 1, sec. 10, prohibts any State, from passing “any ex post facto Law, or Law impairing the obligation of contractsand the Constitution of South Carolina, Art. 9, sec. 2, prohibits the Legislature of this State from ever doing the same. Is not the State bound b'y the National Constitution, just to the same extent, that the Legislature is by the State Constitution ? By thus subjecting her Constitution, i. e her Will, to the Constitution, i. e. to the will of the community of States, has she not made, to use feudal language, that community of States her Lord Paramount? Suppose the King under the feudal system had possessd this amendatory power over the feudal Constitution which determind the relativ powers, rights and duties of himself and the Lord, would any jurist of any age or country have doubted? Lord Paramount as he was under the fixd relations of the feudal system, would he not have been still more Lord Paramount, if Ms will could have changed those relations? Now, rs not this the exact state of tilings under this amendatory power? which, then is the higher sovereign, the community of States or a single State? It is in vain to reply, that all which can be done, under the amendatory power, is the Act of the States. The question is-not between the community of States and all the States, which is the superior sovereign? But between that community as one sovereign, and a single State as one Sovereign. South Carolina is then, by the clearest proof from facts, and the most satisfactory reasoning from principles, an inferior sovereign to the United. States-
    We have now arrived at what may be regarded as the final question: — Is the Ordinance inconsistent with the Constitution of the Union? Independently of the clause which declares the latter to be the supreme law of the land, I could not have doubted, from the authorities adduced and the principles developed, that the Union is a superior sovereign to a State, and that the alegianee due to the former is superior to that which is due to the latter. But the C. U. S. leaves no doubt. If, then, I have succeeded in showing that alegianee is a political relation; that in a Republic it is-the relation of the citizen and the State; that the United States are a complete and perfect State and Nation; that sovereignty of the highest order, according to the surest tests that can be appii-ed, is the attribute of this community of States; that a national alegianee is due by every citizen to that community of States; that power, and thereforo'sovereignty can be divided; and so two-sovereigns, one superior, one interior, can co-exist in the same system ; that alegianee, therefore, as an incident right of sovereignty, can equally be divided; that a divided alegianee is therefore due to the United States and the States; that the community of States is the supreme sovereign, the separate States the subordinate sovereigns of the system; that a superior alegianee is therefore due to the U. S. compared to that which is due to the State — is it possible to doubt an instant? If the ordinance attempts to elevate the alegianee due to the State, above that due to the U. S. it is repugnant, and must be declared by the authority of the State itself, null and void; because it attempts to set up what the people of the State have themselves declared to be their own subordinate Constitution, over that which they have declared shall be their own supreme Constitution.
    Let us now turn to the ordinance, and here let mo advert to its peculiarity in attempting to fix the meaning of a particular, by a general term of a species, by a genus. Obedience is undoubtedly the generic, and alegianee one of the specific terms included in it. Obedience, when applied to the relation of vassal and Lord, means fealty or homage, as the case might have been; when applied to that of King and subject, it means, alegi-anee; when applied to that between a citizen and a sovereign State, it means alegianee; when applied to that between a citizen and a Sovereign community of States, it means still the same. Now, the relation between the citizen of South Carolina and the United States has been demonstrated by facts and principles, to be a political, not merely a civil relation, and that alegiance is the familiar name for his obedience. When, therefore, the Ordinance says that obedience only is due to any other power, that is to the U. S. (for no one can doubt that they are meant by the expression, «any other power,”) it is equivalent to saying, and it might just as well have been said, but alegiance only is due to any other power, i. e. to the U. S. That obedience is as proper an expression for the relation, is manifest through the whole of Calvin’s case, where the expressions “alegiance and obedience,” “alegian.ee or obedience,” “alegiance” alone, and “obedience” alone, occur repeatedly, as meaning one and the same thing. The error in the Ordinance lies m attempting to express a more limited and inferior relation compared with the first, by a general term which embraces the first. The second can only be limited by first establishing an •inferior or less relation, compared to the first, and then by application of the general term to it, we restrict of course the meaning of the general term within the particular limits assign, -ed to the subject, to which the general term is thus applied.
    Independent of this criticism, what does the Ordinance mean? Does it not declare as distinctly and fully as the inappropriate language einployd, enabled it to do, that all alegiance is due to the State, that no alegiance is due to the U. S. ? The Ordinance then declares, that no political relation subsists between the citizen of South Carolina and the Union; that the community of States is not a sovereign, is not a nation ; that sovereignty and alegiance cannot be divided; that the U. S. have no citizens, but only denizens; that treason in the C. U. S. is not a breach of any alegiance; and that the Slate has a right to require of every citizen and officer, to swear that he owes an exclusiv alegiance to the State, and none to the U. S.
    
    What is this, but a denial of all that the political history of 'the Union establishes ; of all that the States and the people have acknowledged over and over again, in various forms, and of all that facts prove and principles sanction, and reasoning demonstrates ? What is it ? but denying the supremacy of the C. U. S. and asserting the supremacy of the State Constitution, for such the Ordinance is ? The Ordinance, then, is utterly repugnant to the C. U. S. and as already insisted on, either repeals the C. U. S. and is equivalent to an act of secession, or must be declared “ null and void, and no law, not binding on this State, its officers or citizens.” Such must and will be its fate.
    I have said that the Ordinance is a part of the State Constitution. Let us then put it into the 9th Article, in the form of an oath, and read the whole together, bearing in mind that the relation between the citizen of South Carolina and the United States is political, is alegiance, and that the national still is the supreme Constitution of South Carolina. This then would be the oath.— «i, A. B. do solemnly swear that the Constitution of the United g[a¿Gg ¡g t]le sl¿preme, and the Constitution of South Carolina only tho subordinate law of this State: and that I am a citizen of the U- S. and owe a higher alegiance to the U. S. than, as a, of S. C.. I owe to the State, and 1 will accordingly, by virtue of such higher alegiance, protect and defend the Constitution of the United States, even against the Constitution of South Carolina, as long as the former shall continue the supreme Constitution 'of South Carolina.” That this is actually the form and mean¡ng 0f the present oath in the Constitution of South Carolina, has, I apprehend, been put beyond all doubt. .Let us now add the supplementary oath, under the amendatary Ordinance of 18th March, 1833. “ But I do likewise solemnly swear, that the Ordinance of 18th March, 1833, is the supreme Law of So. Ca. and the Constitution of the U. S. is only the subordinate law of S. C.; that 1 am a citizen of South Carolina, but only a denizen of the United States; that I owe alegiance to South Carolina only but none to the United States; and that I will protect and defend the Ordinance, until repeald, even against the Constitution of the United States.” Such are the palpable, irreconcilable contradictions, to which we must be led, when we attempt, in the name of the people of South Carolina, to set up their separate, as their supreme will; when they have expressly and solemnly declared that it shall be only subordinate ; for they have declared that as long as the Constitution of the United Slates shall be their Ccr.istiluticn, it shall be their supreme Law.
    
    I have now finishd what belongs appropriately to the argument of these great questions. And here I might stop; but may I trust to be held excused, for adding somewhat more. Perhaps it may not seem to belong to the tribunal, or the forms of the controversy. But are not these indeed political rather than civil questions? Certainly Constitutional, not merely legal. Some remarks, then, on what I believe to be the real character of the oath, will not be inappropriate. I trust I shall not be suspected of calling it a Test Oath, from any desire or intention to stamp it with an odious name. 1 call it such because 1 honestly believ it to be a Test Oath. What is the criterion? A Test Oath is, in my judgment, a declaration of opinión upon oath. It is imaterial, whether it be religious or political, if it be not an oath to facts — to do or not do. A Test Oath is designed to be a test of opinion, compared with some fixd and known standard, establishd or adopted by the imposer .of the oath. Now, matter of opinion, if it belong to the department of duly, is matter of conscience. To exact the oath in such a case, is to interfere with the rights of conscience; for all our opinions on subjects of duty ought to be formd, and must be held under the responsibility of conscience. Freedom of conscience is the noblest privilege of the noblest work of God. It is a privilege granted by the Creator himself; the inalienable right of an immortal soul; a right, which the creature cannot restrict or violate, without usurping the authority of the creator. The genius of toleration is essentially, and unchangeably, free, pure, lofty, honorable.
    “Her track where’er the Goddess roves,
    Glory pursue and generous shame,
    Th’ unconquerable mind, and Freedom’s holy flame.”
    Let us dwell for a few moments, on the history of intolerance. Let me not call it the history of persecution, in connexion with this place and this cause. Let me call it the history of trial and suffering, for opinion's sake. The first scene, which opens upon us, is found in the history of philosophy. We behold the enlight-end and benevolent Socrates condemnd to the hemlock, for teaching the Athenian youth ,a nobler, purer moral, than Paganizm had ever produced. We behold Anaxagoras sentenced to die, because his philosophy was adjudged to be impious: Anaxandrides, because he satirized the Athenian Government: and Cleanthes invoking the Greeks to condemn Aristarchus as guilty of blasphemy in his astronomical opinions. We behold the Romans, after Rome had been founded 591 years, banishing all the philosophers from the city: and Cato, the Censor, six years after, obtaining a decree to dismiss Carneades, and his fellow-philosophers, the Athenian ambassadors, lest they should corrupt the severity and simplicity of Roman manners. Can we forget the striking scene exhibited at the judgment seat and in the dungeons of the Inquisition, when Galileo was tried and condemnd, as an unbeliever in the scriptures ; because he maintaind the astronomy of Pythagoras against that of Ptolemy 1 And what a scene, still more impressiv, is that which passd in the convent at Salamanca; when Columbus, pleading the cause of the new world, of our own America, with the sacred eloquence of a prophet and the profound reasonings of philosophy, receivd as his portion from learning and science, and religion, the stem repuls of religious bigotry, and the incredulity of ignorance and timidity!
    Let us turn now to the modern history of religious intolerance; a history replete with lessons to humble our pride as men, and fill us with griefj as patriots and philanthropists. And what is the first remarkable feature 1 .Is it not the' unnatural Union of Church and State! A Union which the common sense and en-lightend conscience of Americans has forever abolishd. And who does not see! that from this Union arose the maxim, that the civil magistrate had power and was bound by the most solemn obligations of Christian duty, to deny the rights of conscience, and to punish the heretic for his opinions, in flames at the stake, or by the axe on the scaffold. And who can deny that the peculiar, the exclusiv authority of God himself was thus usurpd ; when the civil magistrate held, that as the opinions of the, heretic were opposed to those of the establishd religion, they must be hostile to the marriage bond of Church and State! Did not the magistrate Confiscate property, manacle' the limbs, imprison the person, nay, shed the very life blood of brothers, because he assumed that the enemy of the Church must be the enemy of the State! and that either heresy must be exterminated, or the government would perish ? Behold the Hugonots of France, outlawd, opprcssd, banishu, in the most brilliant age of French Literature; under the meridian splendors of her philosophy; and at the height of her power and glory in arts and in arms! They were not driven out from the homes “and the graves of their fathers, to the cavern and the forest, and the land of strangers, by the religion of humility and meekness; but, under the plea of state necessity, by the inexorable sword of the civil magistrate. And whence, but from the same cause, sprang the intolerance of Protestant to Catholic, of Catholic to Protestant, in the British Isles ? Both held the Church and the State to be one. Bound by a holy wedlock to each other, who is surprised that the sentiment of religion became the maxim of politics, “what God hath joind together, let not man put asunder.” Heresy against the church was therefore treason against the State: and the heretic a traitor. Is it wonderful that the law pronounced him a felon, an outlaw, a perjurd man, a deadly foe, never to be forgiven ? Is it wonderful to behold on the scaffold of the “Defender of the Faith,” the axeman beheading Sir Thomas Moore; because he rejected the Oath of supremacy to the King, as the head of the Church ?
    And what are all the Test Oaths of England but political tests? What is the oath of supremacy but a denial of Alegiance to the Pope ? And what the oath of abjuration, which banishes the Catholic House of Stuart forever from the English. Throne? And what are all the laws that have been enacted and enforced in England, against the Jew and the Dissenter; but statutes to protect the State, as indissolubly one with the Church? and what, but the same reason, has prostituted to the purposes of political ascendancy, the most awful and holy of sacraments: and has made the communion itself the condition of office!
    Shockd and indignant, as we are, at the catalogue of European bigotry, has it not had its rival even in America? We look with astonishment on the persecutions of the Quakers and Baptists in New England, and of the Puritans in Virginia. We behold with surprise and gratitude the tolerant institutions of Lord Baltimore, the Catholic; and of Wm. Penn, the Quaker. We regard with mortification our own Constitution of 1778, establishing the Protestant as the religion of the State, and rejecting the Catholic and Jew as political outlaws. We are filld with amazement and regret on reading the colonial statute of New York, condemning the Popish Priest and Jesuit- to perpetual imprisonment, and even to death. With the same sentiments we now look on the original Constitution of New York, exacting from evry naturalized foreigner, an oath, abjuring all foreign alegiance, even in matters ecclesiastical. And with deep indignation we peruse the records of that intolerance, which, but a few years since, resisted the right of a Hebrew to his seat in the Legislature of North Carolina, and, until within a few years, condemnd the Israelite to political slavery, m the very city and State founded by Lord Baltimore.
    And have these lessons been written in vain with the irdn pen of bigotry, and in the blood of religious and political martyrs ? — And is it possible that we mean to tread that forbidden path in politics which other ages and countries, and even our own States have trodden, in the cause of Church and State.- In vain have we divorced them from each other; 'in vain have we declared that “no religious test shall ever be required as a qualification to any office or public trustif we are so unwise as to substitute political Test Oaths. “Let us reflect,” says Thomas Jefferson, “that having banished from our land, that religious intolerance, under which mankind so- long bled and suffered, we have yet gained little, if we countenance a political intolerance, as despotic, as wicked, and capable of as bitter and bloody persecutions. Inaug. Addr. 4th March, 1801.
    . Does not the history of our own times instruct us in the origin off the Ordinance, and of the Oath in the Military Bill i We know, it is not matter of opinion or belief; we know, that they have arisen out of those unhappy political contests, which led directly to the question of exelusiv or divided alegiance. Who can doubt that, but for this one difference of opinion, the Ordinance as to alegiance, and the Oath in the Military Bill never would have existed. To be-liev otherwise, would be doing the deepest injustice to the clear heads, the patriot feelings, the integrity of purpose of the Convention, a body which counted in its ranks, some of the best and ablest men of the State ; men among the most honorable in private life, and long tried as servants of the public. But the history of all countries, and our own among the rest, has demonstrated, that the "wise and good have repeatedly errd, whilst they believd themselves to be rendering important services, and to be discharging the highest and holiest duties to God or their country. And may not the talented and honest men, who sat in that Convention, have equaly errd, when they legislated, in the name of the. people, on matter of opinion, on matter of duty, on the rights of conscience, with a view to-the difference of opinion as to divided alegiance l Have they not unfortunately and erroneously assumed, that to-differ from them on this question, is to be unfriendly to the State t If their own good sense, magnanimity and frankness, do not cancel the- deed, may we not behold a precedent, among the most dangerous that a republic can witness — the indissoluble union of party and State- — the perilous principle that a party is the State, and the natural fruits of such a maxim, that the friend of a ruling party is a patriot, its adversary the enemy of the country — that political heresy is treason, and the political schismatic, a traitor. These lamentable consequences can never be realized, unless the people of our country shall reach forth their hand, and pluck, and eat the forbidden fruit of political Test Oaths.
    I have said, that the acknowledgment of alegiance to the U. S, furnishd the occasion, and was the 6ause of the Ordinance and Militia Oath. The majority denied that any alegiance was due to the U. S. the minority insisting that alegiance was due. Those contended for an exelusiv indivisible alegiance to the State : these, while they admitted alegiance to be due to the State, maintaind the doc-trin of divided alegiance ; but held, that a superior was due to the Union, an inferior to the State. What was this but matter of opinion, a question of political duty, a case of conscience ? Let u^ turn to the dommentator on the laws of England, and read an instructiV iesgon from j^g pageg> jn thát memorable chapter which treats of offences against God and Religion, partly justifying and partly excusing the laws of England against Atheists, Apostates and Heretics, aga'nst Jew, Dissenter and Catholic, Blackstone has the following passage. “ As to Papists, what has been said of the Protestant Dissenters, would hold equally strong’ for a general toleration of them, provided their separation was founded only upon difference of opinion in religion, and their principles did not also extend to a sub<> version of the civil government. If once they could be brought to renounce the supremacy of the Pope, they might quietly enjoy their seven sacraments, their purgatory and auricular confession y their worship of reliques and images; nay, even their transubstantiation. But while they acknowledge a foreign power, superior to the sovereignly of the kingdom, they cannot complain if the laws of that kingdom do not treat them upon the footing of good subjects.’5 How wonderfully paralél are the cases ! except that the Constitution and Government of the l). S. are not foreign-, but are those of our own State. With a little alteration, to accommodate it to our own controversy, let us road the language of this apologist for Test Oath prohibitions againsf the Romanists. To the minority in S. C. the passage is then directly applicable. “ But while they acknowlege the United States superior to the sovereignty oí the State, they cannot complain if the laws of that State will not treat them on the footing of good citizens ?” Are we not paind and mortified at the-striking analogy I Por what, indeed, and I trust I may ask it without offence, what are the adversaries of the Ordinance and Militia Oath, but the political Catholics, the political Nonconformists,.the political Non jurors of South Carolina?
    May 1 trust to- be borne with, yet awhile longer, while I read and apply to our differences of opinion, another passage from the same inaugural address of Mr. Jefferson. “ We have called by different names, brethren of the same principle. We are all republicans, we are all Federalists. If there be any among us, who would wish to dissolve the Union, or to change its republican form, let them stand undisturbed as monuments of the safety, with which error of opinion may be tolerated, where reason is loft free to combat it.” And may not the advocates of National and State Rights, profit, if they are wise, by the alternate application of this memorable passage to themselves. May not the majority in the Union say of the champions of exclusiv Alegiance, “ if there be any among us, who believe that no Alegiance is due to the V. S. let them stand undisturbed, as monuments of the safety, with which error of opinion may be tolerated, where reason is left free to combat it.” And will not the friends of the Ordinance and Oath, enhghtend hy the experience of the past, and the ample discussions of this question, will they not, with the magnanimity, the generous frankness, which becomes Caro-linians, glory in the sentiment of Jefferson, and in the name of the people of So. Ca. say to the antagonists of their political creed, “ if there be any among us, who believe that Alegiance is due to the Ú. S. let them stand undisturbed as monuments of the safety, with which error of opinion may be tolerated .where reason is left free to combat it.” May-we learn one lesson of wisdom and moderation í PoliTICAL TESTS AKE INSTRUMENTS OR FEARFUL POWER AND DANCER-OUS TENDENCY, IN THE HANDS OF A MAJORITY, OR OF THE GoVERNMENT ADMINISTERD BY THEM. THEY ' ARE USEFUL AND HARMless, when subjected TO THE ONLY LAWFUL JURISDICTION OVER SUCH MATTERS, IN A REPUBLIC — THE PEOPLE AT THE BALLOT BOX. .
    I have now discharged the duty allotted to me. Let me close this scene of anxiety and trial, with a few, a very few words more, I have felt the deep obligation to treat these questions with the simplicity and gravity of truth. I admire, I trust I have exemplified, the noble sentiment of Dexter, that in the argument of Constitutional questions, he had not a right to utter what his convictions disavowd. I had resolvd to speak in the spirit of a Christian, honestly as a Patriot, fearlessly as an Advocate, before Independent Judges. I felt, that such a" course was honorable to them and myself, to my country and my profession. I have been deeply sensible of the delicacy as well as difficulty of the questions : and of the unfeignd respect due to those, whose opinions I had to examin. I have come to lay iny gift on the Altar of God and my Country: for what is an Independent Judiciary but my Country, and what are the Halls of Justice, but Temples of the Most High 1 I have felt, that I dared not offer my gift on such an Altar; if any brother had aught against me. I have not willingly uttered a word that could, in the slightest degree, give an instant of pain. And if, by aught that has been said, I have excited a momentary unpleasantness, or have cast even a transient shade over - a single countenance, may I trust to be forgiven.
    MR. FINLEY’S ARGUMENT.
    Mr. Finley said, that he concurred with the learned Counsel for the Relators, that this was a case of great importance, as well from the magnitude of the questions discussed, as from the deep and absorbing interest with which the people await the judgment of this Court. It was very desirable, in a case like the present, that counsel should confine themselves to' the legal merits of the motion submitted. The introduction of other topics into the debate, was only calculated to increase and inñame that irritation of the popular mind, which it was hoped that this motion was intended to allay. The Court is appealed to on this occasion, to determine questions which have produced, amongst a portion of the people, the most agitating excitement, and are supposed to be vitally connected both with the rights of the citizen and the sovereignty of the State. How essentia], therefore, is it in the examination of a subject fraught with such powerful interest, that the head should be cool, and the heart free from the influence of prejudice or passion. How essential, arid without intending the slightest disrespect, it may perhaps be added, how difficult iey. yoy jjjg Qourt itself to- be kept wholly aloof from the re-action of the popular excitement. But it should be remembered, that we are now convened in the Temple of Justice, and that, a.s-worshippers at the Altar, our minds should be penetrated by that presiding spirit which pervades and consecrates the Temple. — » Thg « stormy wave of the multitude ”may rage around its walls and beat against the portals with tumultuous uproar, but a voice within proclaims from the judgment seat, “ thus far shalt thou comeí ¡jUt no farther-” The only question made by the Relators for the decision of the Court is as to the validity of the 10th section of the late Act of the Legislature, “for the Military Organization of the State,” which requires from all militia officers elected under the Act, an Oath of fidelity and allegiance to the State. Before, however, entering upon the argument of this question, it is pro» per to notice some observations which have fallen from the counsel for the relators, although, perhaps, not strictly relavant to the legal merits of the question. It has been urged that the Oath under consideration, is, to all intents and purposes, a Test Oath.— This nomenclature, if correct, would avail nothing as to the decision of the question submitted. But if the object be to give an obnoxious title to the Oath, let us consider what is the test which this act requires. Does it exact a belief of certain articles of religious faith, as a qualification for office? Not at all. Mr. F. said, he would yield to no man in his abhorrence of such an enactment. It would be a tyranical infrihgemont of the rights of conscience, an impious interference with relations which subsist exclusively between Man and his Maker. But what is the test which this act requires? Nothing more than an Oath of fidelity and allegiance to the State — and from whom ? — from one who claims to hold office under the State, to bear the military commission of the State. And when, from the first origin of Government, to this day, has it ever been considered culpable in a State, to require such a pledge from its officers? Has not rather the refusal of the citizen to give it, been always heretofore considered as the crime?
    Allegiance and protection are said to be correlative obligations, if, therefore, the State should cast off, out of the pale of its protection, the citizen who was recusant to his allegiance, who could complain ? But when, under such circumstances, the complaint is not that the State denies the protection of its laws, but that it withholds its offices of “ profit and trust,” it is certainly calculated to excite “our special wonder.”
    The term allegiance is said to be of feudal origin, -and an oath of allegiance which was founded on the relation of Lord and vassal, has been supposed to be a badge of servitude, unworthy of the character of the citizen of a republic. But this, it is submitted, is a narrow view of the subject. Whether an oath of allegiance be unworthy of a freeman or not, depends, it will be conceded, on the circumstance, by whom it is demanded, to whora rendered. If he swear his allegiance to an arbitrary despot, or a proud domineering aristocracy, or a government which tramples upon his liberty and is reckless of his interests, then is it, in-
      Úeuü tli© badge of servitude. But when his allegiance is claimed by iS his own, his native State,” the State which has protect-, ed him from his birth, in the enjoyment of 'his rights, and which still stretches over and around him, the ample segis of its sovereignty, it is then a homage ho is proud to render — it is the homage of his heart.
    It has been urged, that the enactment under consideration, is tyrannical and oppressive — that it oppressed the conscience of the citizen. Assuredly there must be upon this subject, some strange misapprehension, or perversion. Mr. F. here produced one of the militia commissions, with the following Oath endorsed — “I, A. B. do solemnly swear (or affirm) that I will be faithful and true allegiance bear to the State of South Carolina, and that I will support and maintain to the utmost of my ability, the haws and Constitution of this State and of the United States, so help me God.” Now, it is said, this oath operates oppressively on the citizen, because, from its connexion with the Ordinance of the Convention, it is equivalent to an abjuration of allegiance to the United States. Be this as it may, it is certain that this Oath does not interfere one jot or tittle with the obligations of the citizen to the U. States, whatever they may be. What is the basis of those obligations ? The Constitution of the United States: 'the wit of man cannot imagine any other foundation than this. How then can it be supposed that the oath in question, impairs or can in the slightest degree affect those obligations, when it is made a part of the oath, “to support and maintain the Constitution of the United States 1” Where then is the tyranny — where the oppre ssion of this enactment 7 It is said to consist in this. The Ordinance of the Convention asserts, that Allegiance is due to' the State alone, and Obedience only to the United States; in other words, the Ordinance annexes a name to our respective obligations to the State and the United States, it denominates the one Allegiance and the other Obedience— and the relators think that the terms are mis-applied. The whole controversy comes to a question of philology — a dispute about the true moaning of words. This then is the tyranny, this the mighty oppression, which has set the mountains on fire, which has sounded the trumpet-call to arms, and seems to threaten to deluge our State with the blood of our citizens. It is a subject of regret, that so holy a zeal against the oppressions of Government could not have found a better subject for the discharge of its fires.
    Mr. F. said, that he had listened with great interest to the argument in support of the motion, but it appeared to him, that there was a glaring inconsistency between some of the positions taken. It was first argued, that the Ordinance of the Convention, in exacting an abjuration of Allegiance to the U. ¡3. was unconstitutional. The conclusion,of course was, that so far as it exacted such abjuration, it was a perfect nullity. This argument, whether right or wrong, was very plain and intelligible. But how can it be reconciled with the position taken in another place, that the act of the Legislature prescribing the Oath, is invalid, because ü does.not, in pursuance of the provisions of the Ordinance, exact an abjuration of Allegi-anee to the U. S ? It must occur to every one, that if the Ordinance be in this respect a nullity, it could neither give any authority nor. impose any obligation on the Legislature, to exact an abjuration of Allegiance to the U.- S. and that the absence of such an abjuration, is an argument not against, but in favor of, the validity of the Oath in question.
    Mr. P. said, that he would now pass from the general observations he had suggested, to the questions raised by the relators, as to the constitutionality of tho act of the Legislature, in requiring the Oath under consideration. He would first contend, that the validity of this enactment may be sustained, without any reference at all to the Ordinance of the Convention ; that discarding the Ordinance altogether, supposing it never to have been ordained, the Legislature was perfectly competent to exact this Oath from officers of the militia. If this position can be maintained, he supposed it would satisfy the scruples of the relators, as it was only by reason of the connexion, of the Oath with the Ordinance, that it was deemed objectionable. On this question it may not be amiss to premise certain truisms of Constitutional Law, which he was satisfied would not be doubted. Mr. F. said, he held it as an axiom under our system of Government, that the Legislature of the State, could legitimately exercise every Legislative power, which was not prohibited by the Constitution of this State or that of the U. S. All acts therefore of our Legislature, which do not conflict with those Constitutions (which are the paramount Law) are constitutional and valid. In this, as in many other respects, the State Government was very distinguishable from the Federal Government — both stand in relation to the people of the State, as agents, but the one possesssed all power which was not prohibited — the other no power, but what was delegated. The Federal Constitution, as far as it relates to the powers of Congress, operates in the nature of a Grant. The State Constitution and the Federal Constitution also, so far as it affects the powers of the State Government, operates as a Restriction, or to speak with more precision, the Féderal Constitution is a grant to Congress of certain defined powers of legislation — the State Constitution is a grant to the Legislature of the whole legislative authority of the State, subject to certain restrictions, and the only restrictions imposed, are those contained in the Constitution of this State' and that of the United States.— The first question, therefore, is, whether there is any thing in the Constitution of the United States which prohibits or restrains the Legislature from exacting an oath of allegiance from officers of the militia. All that the act of the Legislature requires, is an oath of true allegiance to the State — if, therefore, the Legislature be prohibited from exacting such an oath from its officers, it can only be because by the operation and effect of the Constitution of the United States, the State is entitled to no allegiance whatever from its citizens. But this has never been seriously advanced, except perhaps in the memorable Proclamation of Gen. Jackson, in which something was said about a transfer of allegiance from the citizens of the State, to the Federal Government. The absurdity of advancing such preposterous doctrines, could only be equalled by that of refuting them. The mere fact, that in several of the States an oath of allegiance to the State has always been exacted, and even unaccompanied by any obligation to support the Constitution of the United States — that the validity of such laws has never been questioned — and this, too, in States most remarkable for their loyalty to the great Federal Head, is, of itself,, sufficient to satisfy the most scrupulous, that there is nothing in the Constitution of the'U. States, which either expressly or impliedly prohibits the Legislature from exacting, from officers of the militia, an oath of allegiance. The question then is, whether there is any thing in the State Constitution, which imposes such a prohibition. It is not alledged that any express prohibition is to be found in that instrument — but the 4th Art. of the Constitution is referred to as implying such prohibition. That Article is as follows : — “All persons who shall be chosen of 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 Con-titution 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.”
    Let it be conceded, that officers of the militia come within the purview of this Article of the Constitution, the question is, whether the effect of this Article is to prohibit the Legislature from exacting any other oath from militia officers, than that which is therein prescribed. The. various clauses in the Constitution may be arranged, with reference to their tenor and effect, under several heads or classifications. We first have clauses which relate to the organization of the Government, and this being a subject exclusively for the action of the sovereign authority, would seem, by necessary implication, to be beyond the reach of ordinary legislation. We next have clauses which in negative terms, convey an express and positive prohibition — as that “no bill of attainder — ex post facto law, or law impairing the obligation of contracts, shall ever be passed by the Legislature.” Of course there can be no doubt as to the effect of such clauses. We have again clauses in affirmative terms, which, for the security of the citizen, ordain that certain rights shall be held sacred from legislation . such as that “the free exercise of religious worship shall forever hereafter be allowed,” &c. Also, that the trial by Jury and the liberty of the Press, shall be forever inviolably preserved.” The effect of these clausestis of course to restrain or prohibit the Legislature from any interference with rights thus secured and again we have clauses in affirmative terms, which merely require that certain acts or duties shalWbe-pdrformed — such, with several other clauses, is the Article now under consideration, and the question is, whether these mandatory clauses are to prohibit the Legislature from exacting any thing else, connected with the same subject matter, than what these clauses require; or in other words, without any express terms, declaratory of the intention that officers of the State shall take no other oath than that prescribed by this Article of the Constitution, are the Legislature necessarily prohibited form exacting any such additional oath; are such clauses as this, equivalent in effect, to those which are expresslv and positively prohibitory1} It is admitted, that the effect of this article is to impose some limitation, or restraint, on the authority of the Legislature. Since it ordains that Aim persons chosen or appointed to office shail take the prescribed oath, it is evident that the Legislature could not adopt any other oath for officers of the State in exclusion of that which the Constitution has provided ; and since the Constitution is the supreme law, it is evident that any oath adopted by the Legislature repugnant to that in the Constitution, would be a nullity. The act in question steers clear of both those objections. It is not in exclusion of the oath in the consl itution, because it is expressly enacted, that it shall be in addition to the other oaths which the law requires. It is not less evident, that there is no repugnance between the oath of allegiance, and that which the constitution ordains, since it is universally conceded, that some allegiance is due to the State ; in other words, that some allegiance to the State is consistent with the constitution of the State and that of the United States. It follows, therefore, that an oath to bear “ true allegiance” to the State is not repugnant to, but consistent with, an oath to support the constitution of the State, and of the United States. The question then recurs, whether the 4lh article in our constitution amounts to a prohibition, to the Legislature, to exact any other oath, whether consistent or not with that which the constitution prescribes.
    It is submitted whether the construction apparent on the face of this article, is not merely to make it the peremptory duty of all officers of the State to take the oath which it ordains, but not to prohibit the Legislature from exacting any other oath which might be deemed expedient. This construction may bo illustrated by an analogous case. Suppose A to appoint B with an ample power to act for him in the management of a ship, to enlist seamen on such terms and conditions as ho pleases, and to enact all needful regulations for the Government of the ship. In the power of attorney, however, it is expressly provided, that all seamen who are enlisted shall swear before a justice of the peace, to be faithful to the ship-owner, or shall sign articles to serve for two years. What would be the construction of this letter of attorney ? Assuredly that the agent should require all seamen to take the prescribed oath, or sign the stipulated articles, but not that the agent under the general powers vested in him, was prohibited from exacting an oath to obey the orders of the captain, or from enlisting seamen for four years, or from stipulating any other terms or conditions, not in exclusion or contradiction of the provisions of the deed. The analogy between the cases is this. The constitution of the state is a great charter of power from the sovereign authority to the Legislature. By the 1st art. of this charter, the whole legislative authority of the sovereign is vested in the Legislature, and under this general grant the Legislature are clearly authorised to exact from officers of the State, any obligations or oaths,, not in exclusion, or contradiction of the will of the sovereign. In the 4th Art. of the charter, the sovereign has declared his will, that all officers should take a certain oath; In the act under consideration, the Legislature exacted another oath, but not m exclusion or contradiction of that in the charter. It is an act, therefore, within the authorised powers of the Legislature.
    Mr. F. said he would here refer to a rule in the common law, which he thought strictly analogous to the question. The rule is, that where an authority existed at common law to do an act, without any restriction as to the extent or mode of doing it, and a statute is passed, which, in affirmative terms, authorises the doing of the same act in a specified mode, the statute will not be construed to take away the authority at common law. But where the whole authority for doing the act; was under and by virtue of the statute, a different rule attached, and the act in that case must be in pursuance of the statute and not olhenoise. In other words, where the authority existed without the statute, the statute, if merely in affirmative terms, would not imply a negation or prohibition of the pre-existing authority. This rule is clearly and fully illustrated in Goke on Litt. 115, a. and in Townsend’s case, 1 Plowden’s Rep. 113, and in Stradling vs. Morgan, p. 207. So much for the rule, now for the analogy. The 4th Art. in the constitution is analogous to a statute, which in affirmative terms prescribes á particular oath to all militia officers of the State — whether it imports a negation or prohibition to the Legislature to exact any other oath, depends upon the question, whether the authority claimed by the Legislature to require any other oath, is derived from and under this article of the constitution ? The qestion is, whether, without this article, the Legislature could have exacted any other oath. If it could, phen the article in question does not imply a negation or prohibition of such authority. Now it is altogether a fallacy, to suppose that the Legislature claims its authority to pass an Oath of Allegiance, from the 4th art. of the Constitution. It is claimed without that article — it is claimed under the article which grants to the Legislature the whole legislative authority of- the State. Strike the 4th art. from the constitution, and would there be any doubt that the Legislature ■was competent to require an oath of allegiance from officers of the militia ? How then stands the case. Here is an authority in the Legislature, independent of the 4th art. of the constitution — that article is expressed only in affirmative terms — the result therefore is, that it does not import a negation or prohibition of the independent authority of the Legislature. He would now shew, that the construction contended for was recognized and supported by analagous cases. He would first refer to acts of the Legislature, passed under the old constitution of 1778. The 36th article of that constitution prescribed the form of an oath to be taken by “ all persons wtío shall be chosen and appointed to any office, or to any place of trust, civil or military, before entering on the execution of office.” The 44th article provided for the mode of altering the constitution. This constitution was, it is true, adopted by the General Asenibly, but it cannot be doubted that while unaltered, in the mode provided for, it was the supreme law of the State. Now let us see whether it was then considered that the 86th art. was equivalent to a prohibition to the Legislature, to exact any other oath than that prescribed. The constitution was adopted on the 19th March, 1778, and on the 28th March of the same year, the Legislature enacted an additional oath, to be taken by the Governor and commander in chief, and by members of the privy council, before entering upon the execution of their offices — P. L. p. 297. Thus also, on the 17th October, 1778, ,an act was passed prescribing an oath for members of the Senate and House of Representatives, and for magistrates, different from that established by the constitution — P. L. 301. An additional oath was also enacted m 1784, for the Chancellors of the State — P. L. 337 ; and in like manner for the commissioners of locations and the Sureyor general, P. L. 835; and in 1785, for the county court judges, clerks and sheriffs, P. L. pp. 367, 374,375; for commissioners of caveats, P. L. 394 ; and m 1787, for Escheators, P. L. 429. He would next refer to acts of the Legislature, passed since the adoption of the present constitution in 1790. The first in order ,was the act of 1794, 2 Brev. 64, which is to the effect, that every officer of the militia shall, within six months after Ins election, take the following oath or affirmation, before some justice of the Peace, who shall certify the same on the back of his commission : “I, A. B. do solemnly swear (or affirm) that I will support and maintain, to the utmost of my ability, the laws and constitution of this State and of the United States.”' This act clearly shows, that the Legislature of that day did not consider the 4th art. of the constitution as prohibiting them from exacting an additional Oath from officers of the militia. And assuredly, if there be any force in the maxim “cotemporanea expositio est fortissima in lege,” an enactment passed within four years after the adoption of the Constitution, very probably by a majority of those who framed that instrument, and ratified since by universal acquiescence, is entitled to the highest consideration. There is no way of surmounting the obstacle presented by this act, but by supposing one of two things, that the Legislature of 1794, (which must rank on this question as high authority) either did not consider officers of the militia as coming at all within the purview of the 4th article, or that this article did not prohibit the Legislature from exacting an additional Oath. In either view, the act now under consideration is valid. As to the officers within the purview of this article, it may be worthy of a passing remark, whether its operation may not properly be restricted to such officers as the Constitution itself brings into existence. This view receives some support from that part of the Oath in which the officer swears that he is “duly qualified according to the Constitution,” and it is submitted, whether there be hot a substantial distinction in reference to the qualifications and conditions of office, between such as are created by the Constitution, and such as owe their existence entirely to an act of the Legislature, and whether the conclusion of his honor Judge Bay be not correct, that the Oath in the Constitution was intended exclusively for the former. The next act of the Legislature he would refer to, was that of 1816, (see acts of that year, p. 9) entitled an act to prevent the pernicious practice of gamihg, by which it was provided,that every Sheriff, Deputy Sheriff, Justice of the Peace and Quorum, and all Constables, shall, before they be qualified to act in their respective offices, in addition to their Oaths of Office, take an oath to enforce and carry into effect that act to the extent of their power and ability. The constitutionality of this act has, it is believed, never been questioned. He would also' refer to the acts of 1829, sec. 4, p. 22, for an additional oath of office, enacted for all district officers. It is submitted, therefore, whether the unbroken current of legislation on this subject, never interrupted until now, by a questian as to its validity, should not be regarded as settling the construction of this Art. of the constitution. The according voice of successive legislatures} from the first establishment of the government to this day, ought certain/y to operate on this court with the weight of authority. Again —the argument on the other side is that when the Constitution, (which is the supreme law,) has prescribed an Oath for- Officers, it is not competent for any power subordinate to that law, to exact any other Oath — that the supreme law in such case imports a negation or prohibition to any action by the subordinate power. Let this argument be subject to another test. The 3d sec. of the 6th art. of the constitution of the United States ordains, that “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 this constitution.” And in 1789 it was enacted by Congress, that the Oath or affirmation required by this art. of the Constitution, should be administered in the form following, viz: — “I do solemnly swear (or affirm, as the case may be) that 1 will support the constitution of the United States.” This act of Congress being in pursuance of the constitution of the United States, is of course a part of the supreme law, “any thing- contained in the Constitution or laws of any State, to the contrary notwithstanding.” Here then we have the supreme law of the United States prescribing the form of an Oath tor all Officers of the several States. Now it this act of the supreme authority, although only in affirmative terms, imports a prohibition or negation to-all subordinate powers to exact any other Oath, then it follows that the various oaths to be found in the Codes of the several States, whether incorporated into their constitutions or engrafted on their- statutes, are wholly null and void. The construction contended for uproots the whole system. The veiy oath in our state constitution which is admitted to be valid and obligatory, is a perfect nullity. A construction which leads to such results must be abandoned.
    It may perhaps be said, that the oath in our constitution is itself an oath of allegiance, and that though the 4th Art. does not imply a prohibition to the legislature to exact from the officer an oath of office, it prohibits fhstexaction of any other oath of allegiance — and that this distinction wilDneet the argument founded on the authority of acts of the legislature prescribing additional oaths of office. If the oath in the Constitution Were an Oath of allegiance, still the only right conclusion would be, tnbt the legislature was only prohibited from exacting any other oath in exclusion or contradiction of that prescribed. But it is not in fact an oath of allegiance. The distinction between an oath of Allegiance and an oath to support the constitution, pervades the constitutions of all the states which have acted on the subject, from New Hampshire to Georgia. It is submitted, that the true difference is, between acknowledging the authority of a particular act, and that of all acts of the sovereign — between the obligation to obey a special law, and the admission of the right to bind in all cases. Thus one, whose allegiance is avowedly due to another power, may nevertheless swear to support the constitution of the state, by whose Government he is protected. But the argument on this question properly belongs to another part of the case. Nor will the distinction taken between an oath of office and an oath of Allegiance, avail against the legislative construction of the constitution, founded on the various statutes which have been referred to. Nothing is more than that the oath in the 4th art. is an oath of office — it is to be taken by all officers of the State, before entering on the execution thereof, and a part of the oath is, that the officer is duly qualified, an^ will, to the best of his abilities, discharge the duties of the office to which he has been appointed. Now, if the argument on ¿he other side be worth any tiling, it would follow, that where the constitution prescribes a particular oath of office, it imports a prohibition to the legislature to require any other oath of office. But how can this be reconciled with the various acts which have been adduced, of successive legislatures, requiring what are admitted to be additional oaths of office ? There is another view which may be taken of this part of the subject. The 4th Art. in our constitution may be regarded as an Ordinance of the supreme law, exacting a security from all officers of the state, fol the faithful discharge of the duties of their offices. Iftheruleof construction contended for in behalf'of the relators, be correct, would not this amount to a prohibition to the legislature to require any other security, and must it not follow, that all our laws on this subject are nugatory and void 1 Yet this Court, in the late case of the Treasurers v. Taylor, 2d Bailey, 524, not only decided the acts of the legislature requiring security from Sheriffs to be constitutional, but affirmed the act of 1820, which required additional security, after the Sheriff had gone into office. Upon these views, therefore, it is submitted that the position first assumed has been established, and that supposing the ordinance of the convention never to have existed, or that by reason of its unconstitutionality it is now “a dead letter,” the enactment in question may be still sustained by virtue of the ordinary powers of the Legislature.
    Mr. F. said, that he would now enter on the 2d division of the case, and contend that even if the Act in question be invalid under the ordinary powers of the legislature, it still can be sustained upon' the ordinance of the convention — that by virtue of this ordinance, the legislature was authorized to pass the oath which the act requires. So much of the ordinance as relates to the case, is in the following-terms: — “We do further ordain and declare, that the allegiance of the citizens of this state, while they continue such, is due to the said state, and that obedience only, and not allegiance, is due by them to any other power or authority, to whom a control over them has been or may be delegated by the State; and the General Assembly is hereby empowered from time to time, when they may deem it proper, to provide for the administration to the citizens and officers of the state, or such of the said officers as they may think fit, of suitable oaths or affirmations, binding them to the observance of such allegiance, and abjuring all other allegiance.” Upon the ordinance, several questions of the gravest character are now propounded to the Court. Questions which go to the very foundations of our government, and are vitally connected with the existence of State Sovereignty. This subject has been of late years'so thoroughly discussed in this state, and enveloped m such a flood of light, that he could not but feel that any thing which he was able to offei to the Court would be but as the flickering of a taper in the blaze of noon-day. Should he be able to succeed in collecting a few scattered rays, and briug them to bear with any of the force which belongs to them, on the subject under consideration, it would be far beyond his highest hopes. This part of the case divides itself into two principal questions, 1st, whether the ordinance of the convention be valid, and 2d, whether the act of the legislature can be connected with the ordinance, so far as to give authority to the Legislature to pass this oath of allegiance. It is objected, that the ordinance is a nullity — 1st, because the convention exceeded their power, which was limited by the objects for which they were called — 2d, because it conflicts with the constitution of the United Slates ; andjld, because it operates to alter the constitution of the state, which can only be effected in the mode prescribed by the constitution. It was of course assumed by the relators, that this court has the right to pass upon these questions — he, however, met the relators upon the threshold, and would contend that if the court be satisfied of the fact, that this ordinance was the Act of a Convention of the people of Soutii-Caboli-Na, (of which he supposed there was no question) it would be an unwarrantable assumption on their part, to undertake to judge of its validity — that an act clothed with the sovereign authority of the state, was the supreme law of this tribunal. This, would be apparent from a review of the true theory of our system of Government, and the position of this court under that system. The 1st. Sec. of the 9th Art. of the constitution of this state, was as follows : — “All power is originally vested in the people, and all free Governments are founded on Iheir authority, and are instituted for their peace, safety and happiness.” He would take for granted the political tenets contained in this article of the constitution, and that the organization of our own government was an illustration of the theory. It was first asserted, that all power was originally vested in the people. It followed therefore that that supreme, illimitable, omnipotent authority, which exists in every political community united together as a state under a social compact, is, in our system, vested in the people of the state— it also followed from the theory, that our government is an agency, created by the people for certain purposes — that it is founded exclusively on their authority, and subject to their will: our government then in all its departments, is a subordinate power entirely subject to the will of the people, and it was evident therefore, that this court, which constituted one of the departments of the government, must partake of the same subordinate relation. Can this court, therefore, assume to judg’e and determine as to the validity of an act of a convention of the people, to whom belongs the paramount and controlling authority ? He submitted, that this was not the province of this court — that its true office was to administer the laws of the state, enacted by the legislature, according to the Paramount law, ordained by. the people — and that it could not, without usurpation of power, exercise a supervisory control over the Paramount law itself. It appeared to him, that no argument was requisite to show, that the subordinate could not annul the act of the superior authority — that the creature should sit in judgement on the act of the creator, sounded to him almost like political blasphemy. The only question, therefore, open to the consideration of the court, was, whether the ordinance of the convention was the act of the people in the exercise of this high and controlling authority. — This authority could of course be exercised m any form the people may choose to adopt. With us, it never has been and never could be, by the people themselves, assembled in one aggregate mass. The only form in which it ever has been exercised, was as in 1833, by the people, through their representatives in convention. When thus assembled, the convention possessed the whole sovereign power of the people. It is distinguishable from the legislature precisely in this, that the latter are subject to the restraints of the constitution, whereas the convention, as far as the legal authority of their acts is concerned, are absolutely unlimited. It is admitted, that the delegates to the convention may be under moral restraints. If appointed for a particular object, there is a moral obligation on them, not to transcend the object of the call — but should this be disregarded, their acts must still be received as the Paramount law, because there was no tribunal known to our system of government, which could exercise a supervisory control over a convention of the people. The natural right of rebellion against oppressive laws — the unalienable “right to fight,” would still be retained by the citizen, as a safeguard against tyranny — or another convention might be called to annul the acts of that which had abused its powers; but it appeared to him clear, that this court had no authority whatever, to apply a remedy for the arbitrary ordinances of a convention. Again — the right claimed for this court to judge whether the ordinance of 1833 be valid, presupposes that there is a higher law,to ¡which the convention is subject, and with which its enactments may be compared. Now what law is this, which is to controul the powers and the acts of a convention of the people ? Will it be said that the act of the legislature, calling the convention, is this law — what! the subject paramount to the sovereign — the creature controlling the action of the creator — an act of the Legislature higher than the authority of the people! It appeared to him that this was a solecism of the grossest nature— that it was almost absurd to think of this court’s annulling an ordinance of the convention; because it contravened an act of the legislature. Again — It is supposed that our state constitution is this standard law, to regulate the authority of the convention. This notion arises from a mistake of the true object and effect of constitutions. A constitution is a law ordained by the sovereign for the regulation of the Government. It is a law for the legislature, and in all its provisions and restrictions, was intended to operate exclusively on them — but how can it be supposed to control the action of the very power which enacted it? . It is not doubted that it would be competent for the legislature to alter or repeal its, own enactments ; and that in reference to these acts, the maxim holds, “Leges posteriores priores contrarias abrogant.” How then can it be supposed incompetent for a convention of the people to alter or abolish either expressly or impliedly the constitution which it has ordained? Again — It is contended that the constitution of the United States is a higher law than the ordinance of the convention, and that this court has the right to nullify the ordinance if it be opposed to the constitution. In the proper place he would show, that the charge of this alledged discepancy was totally unfounded — but he would now, for Vie sake of argument, suppose it to be true. It must be admitted that some support for the opinion he was combatting is to be found in the provision of the 2d Sec. of the 6th Art. of the federal constitution, viz: “that the constitution and laws of the United States which shall be made in pursuance thereof, 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.” . Rut let it be asked and answered, by what authority was the constitution of the United States adopted in this state 1 What but the will of the people of the state, expressed through a convention elected and organized in ’88, in exactly the same mode as was the convention of ’33 — and by what authority is that constitution now of force in this statef but by the will of the people of this state ! That will brought it into existence in South Carolina, and it now depends solely on that will, for the continuation of its existence — - must it not follow therefore, that so far as its operation in this state is concerned, the constitution of the United States is subject to the will of the people of the state ? It is quite evident, that one act of sovereign authority of the state must carry with it the same obligation as another, and that the last act is that which must prevail. Suppose then that the ordinance of 1833 is contrary to the constitution of the United States — it would only shew that a convention of the people in 1833, had in this respect superseded ah act which a similar convention had adopted in 1788. And is this court gravely to consider whether the sovereign authority of the state is competent to undo in 1833, what it did in 1788 — that by some unheard of statute of limitations, its right of action was barred! Grant for the sake of argument, that the ordinance is a glaring violation of the compact into which this state entered with the other states — that it was even adopted by the state in the exercise of a natural or revolutionary rights .would it follow that the act was the less obligatory on the citizens and officers of the state ? Can it be that South Carolina is responsible to this tribunal for the proper action of its sovereign authority! If the state of South Carolina has violated the federal constitution, it may be a question for the other confederated states, but it is submitted that this court, which was created by the state for other and subordinate purposes, could not take cognizance of such a question, without an utter denial of the sovereignty of the state. At this stage of the case, it may be as well to consider a question which appeared to Mm necessarily involved in this division of the subject — this question was, whether South Carolina was a sovereign state. If the position that sovereignty still appertained to the people of South Carolina can be sustained, it would not only meet all the objections urged against the validity of the ordinance, but establish the conclusion that this court is debarred from the right of passing upon the question. And first, what is sovereignty ? It is the supreme and ultimate authority in a state. It is of the very essence of sovereignty, to be highest legal power in the state, and tó be subject to no legal restraint but its own will. It is admitted that the sovereign, as all human agents are, is subject to moral obligations, but only to such. It is the essential characteristic of a sovereign state, to be responsible only to *he laws of God, and thus when it breaks through those restraints, and violates its plig-hted faith, there is bo other appeal but to the God of'bat < ties. “This sovereignty,” touse the language oí a distinguished patriot, “wherever it exists, is omnipotent — it is the same in one independent community as another, and is unsusceptible of division, increase or diminution. Constitutions and governments are emanations from it, as light from the sun, which parts with it constantly,. without itself being impaired or wasted or weakened. Hence it is, that it makes and unmakes at pleasure, and knows no superior but Divinity, and no law but the universal law ordained by that Divinity, which is the law of right and justice.” This sovereignty ought also to be distinguished from the exercise of certain visible attributes of sovereignty — such attributes may be vested by the sovereign in an agent— in an ambassador — but this would not constitute the ambassador the sovereign — nothing, therefore, could be more illogical and unsound, than to conclude that a government was a sovereignty, because it was entrusted with the power of making war and peace — of regulating foreign relations and the like. It was no less evident that it was absolutely essential to sovereignty to be one and indivisible. The contrary opinion led to the absurdity, that there may be two different powers in the same stale, each supreme, each the highest, which was a contradiction in terms, or in the language of Burlamaqui, (2d vol. 2d. part. 1st chap. 18th sect.) “is morally impossible.” In considering what would amount to a surrender of sovereignty, (supposing it inalienable,) it was obvious that several sovereigns may unite together under a compact, for certain purposes — may agree to exercise certain powers, jointly, and to forbear from their exercise separately, and still retain the character of perfect sovereigns. Several examples of this are to be found m Treatises on Political Law. Thus Burlamaqui (2d vol. 2d part. 1st chap. sect. 40, 41,45,) speaking of compound forms of government, says — “these may be defined an assemblage of perfect governments, strictly united by some particular bond, so that they seem to make but a single body, with respect to the affairs which interest them in common, though each preserves its sovereignty-full and entire, independently of the others.” Thus, also, Vattel, (in Book 1, sect. 10.) asserts that “several sovereign and independent states may unite themselves together by a perpetual confederacy, without each in particular ceasing to be a perfect stale — they will form together a federal republic — the deliberations in common will offer no violence to the sovereignly of each member, though they may in certain respects put some constraint on the exercise of it, by virtue of voluntary engagements.” It would make no difference in such case, that the sovereigns had appointed a common agent to carry into effect the purposes of the confederacy, nor that this agent was invested with some of the highest powers which belong to sovereignty. The U.States, under the original articles of confederation, afford an example of this. Nor would it alter the case substantially, if it wore agreed that the powers of the agent might be increased or diminished by the act of a majority of the confederated sovereigns, or that the agent was. empowered under the provisions of the compact, to act in the execution of its laws directly upon the citizens of the respective sovereigns. It was an inversion of correct reasoning, to argue from the mode of action of the agency appointed, that the parties to the compact were not sovereign. It is submitted, that so long as the several states are recognized as equals under the articles of Union, acknowledging no difference in dignity, and promising the same things for the same equivalents— so long as they shared in the adminstration of the joint agency, and regulated each for itself, all local and internal affairs, not entrusted to the common agent, they would still be regarded by the laws of nations as perfect sovereigns. Vattel, Book 2d, sect. 172, 174, 175. - The question then occurred, whether the views he had urged are not exactly illustrative of our federal system 1 whether it be not merely á compact among sovereign states, based upon principles of equality, by which they agree to exercise certain powers conjointly, through the agency of a common government, possessing, it is true, by delegation, certain specified attributes of sovereignty, but without any transfer of that original sovereignty, which belonged to the states. It appeared to him, that this statement of the case could not be disputed What are' the unquestionable facts ; that before the adoption of the federal constitution the several states were sovereign — that this constitution was formed by delegates from the several states appointed for the sole and express purpose of revising ike articles of confederation, and reporting the alterations agreeed on, to the states — that when finished, it was submitted to the people of the several states, to each in its separate and sovereign capacity — that it was adopted by each for itself — that two of the original states did not assent to the compact, until after the new government had been in operation for some time, and that until they acceded to it, the constitution was not obligatory on them; these facts appeared to him to. demonstrate beyond the shadow of a doubt, that the constitution of the United States was a compact among sovereigns. But perhaps it will be said, that the adoption of the constitution of the United States was the last action of the sovereignty of South Carolina — that she, by that act, ceased to be a sovereign. Where is the proof of this suicidal surrender of sovereignty ? To whom was it transferred ? Where did it vest ? where is it now 1 will it be said that it was transferred to, and is now vested in the government of the United States 1 If so, then the federal goverement must be the sovereign. But this cannot be, because under our' political systems the Government is never sovereign: with us all governments are limited — are subject to a higher law— the constitution and this subjection is opposed to the very essence of sovereignty. He begged leave, in support of this position, to refer to the opinion ofMr.Webster,who, whatever may be his political heresies,was certainly aman of gigantic intellect, which he no less displayed when engaged in defending error, than when he was the apostle of truth. In the debate on Mr. Calhoun’s resolutions in ’33, he says, p. 29— “the nature of sovereignty or sovereign power, has been extensively discussed by gentlemen on this occasion, as it generally is, when the origin of our government is debated. But I confess myself not entirely satisfied with arguments and ¡Illustrations drawn from that topic. . The sovereignty of government is an idea belonging to the other side of the Atlantic. No such thing is known in North America. Our governments are all limited. With us all power i& with the people. They alone are sovereign, and they erect what governments they please, and confer on them such powers as they-please. None of these governments is sovereign in the European sense of the word, all being restrained by written constitutions.” The sovereignty of the state could not therefore have been transferred to the federal government. Will it be said that this sovereignty is vested1 in three-fourths of the states under the amendatory power contained in the 4th art. of the constitution of the United States t This power, great as it doubtless was, still did not amount to sovereignty. It may be questioned, whether the power to amend included the right to abolish the constitution and re-ordain another, which was one of the most certain predicates of sovereignty. It also happened, at present, that one-fourth of the states contained a greater population than the remaining three-fourths, and to contend that the sovereign power was in the latter, would bo to contend that it ivas in a minority of the people. But what must set this question beyond all doubt is, that the amendatory power which was vested in three fourths of the states, was itself expressly subject to restriction. By the very termsof the constitution,no state could be deprived by the action oí three fourths or- any other number of the States, “ from its equal suffrage 'in the Senate.” Besides, how could this power be supposed to imply the surrender of the sovereignty of the States, when in the very exercise of the power each State was distinctly recognized as a sovereign and an equal1? Under the constitution, no amendment proposed could be valid until ratified by three-fourths of the States ; littlo Rhode Island and petty Delaware, voting on an equality with the-“ancient dominion” and the “empire state” of New Y'ork. Thus-it might happen in the exercise of this power, that seven of tho smallest States, with a population of but little more than one million, may defeat the concurrent action of the other seventeen with a population of little less, than twelve millions. What stronger facts could be adduced to shew, that under our federal system- the States do retain their characters as sovereigns, and aré not amalgamated into one aggregate mass — and this, it was obvious, was the only alternative. If under our system of government the States bo not sovereign, then are they but the subordinate appendages of a vast consolidated empire. If the - States be shorn of their sovereignty, then do they bear the same relation to tho federal government, as districts and parishes to the state government, and are reduced from their ■«high estate” to the degraded condition of the shires of England, the departments of1 France, and the vassal provinces, of Russia and Turkey. Another result from this theory equally shocking to the heart of the patriot was, that under its practical operation, state rights would be but a mockery. Nothing is more clear than that between the sovereign and the subject, there canuot be a matter of legal right. As between them, the only standard of law, the only tenure of right, is the will of the sovereign. If, therefore, the State has surrendered up her sovereignty, then are the reserved rights of the State, of which no doubt has been expressed even in this debate,, but as the baseless fabric of a vision.
    Mr. F. said he. found it necessary to abridge the argument on this 'question, though it was far from being exhausted — nor would he refer to the very high authority which could be adduced in support of the position he contended for, it being familiar to the Court, but he could not forbear the remark, that a doctrine which like that of stale sovereignty, had been affirmed by the collected wisdom of our State, in every possible form in which it could be asserted — even among men who had in other respects differed widely in political opinion — could not but command from this tribunal, the most profound and respectful consideration. Supposing therefore, the States to be sovereign under our federal system, the questions in this case are all solved — the objections urged from the other side are met and refuted.— It has been shown to be of the very essence of sovereignty — to be illimitable by any legal restrictions — to be pnramouqt to (all laws, but the law of God. This sovereignty, under despotic systems of government, was vested in the Autocrat — under our popular system, it resided in the people. How then stands the case — we have before us an Ordinance passed by “a Convention of the people of South Carolina” — an act of the sovereignty of the State — and this tribunal is gravely called upon to pronounce this act invalid. Can this "court assume such authority, is the question? What! a sovereign subject to the supervisory jurisdiction of a court of law — of a court created by itself? Assuredly a heresy so extravagant needs no formal refutation.
    But let us now suppose for the sake of the argument, that to this court belongs this high prerogative of passing judgment upon the act of the sovereign. The question will be as to the force of the objections presented, to shew that the Ordinance is invalid. And 1st, it is contended that the Ordidance is null and void — because it was not within the objects for which the convention was called. He had already established, he thought, that the authority of the Convention could not be legally restrained by the act of the legislature. But oven giving up this position, it would be shown that there was nothing in the objection now advanced. The question is, whether the Ordinance of the convention was within the purview of the act of the legislature, under which it was called. On referring to that act, it will he found that the convention was to be assembled, “to take' into consideration the several acts of the congress of the United States, imposing duties on foreign imports, for the protection of domestic manufhetures — to determine on the character thereof, and to devise the means of redress. And further, in like manner, to take into consideration such acts of the said Congress, laying duties on imports, as may be passed in amendment of, or substitution for, the act or acts aforesaid; and also, all other laws and acts of the government of the United States, which shall be passed or done for the purpose of more effectually executing and enforcing the same.” It is also proper briefly to advert to the state of facts which existed when' the Ordinance in question was passed. The Tariff of 1832 had been nullified by the convention, and the requisite measures to arrest its operation within the limits of South Carolina adopted by the legislature.— In this situation of affairs, congress saw fit to repeal the tariff of1832, and to substitute in its stead that of 1833, which was also followed by the act entitled “an act further-to provide for the collection of duties on imports,” commonly known as the Force Bile. It will noi j,e <joubted whether this last named act, which was designed to exe~ cute and enforce the substituted tariff of 1833, was within the prescribed authority of the convention. Now, against what was the Ordinance in question levelled, but this very act called the Force Bill! Tt was in terms, an Ordinance to nullify the Force Bill, and this was the whole scope and object. He took it for granted that he was only bound to show that the subject mailer of the Ordinance was within the jurisdiction of the convention — that is, within the purview of the act of the legislature. The modus operandi adopted by that high tribunal in referrence to the subject, was most assuredly beyond the cognizance of this court. The only question is, whether the Ordinance was within the allotted action of the convention — whether that action be wise or unwise — expedient or inexpedient — suitable or unsuitable — was a question exclusively for the convention themselves. If it belonged to the case, however, he thought it would not be difficult to show that the mode of action appointed by the convention, was suitable to the wrong it was designed to remedy. That as the federal government had, through the operation of the “Force Bill,” struck at the very vitals of state sovereignty, and had followed up the blow by the array of the armed force of the government — the usual appliances of tyranny — it was peculiarly proper that the State herself should also be prepared for the approaching conflict, and that she should require from all who might be entrusted with her power, an oath of allegiance to her sovereignty. The second objection against the ordinance was, that it authorized the legislature to exact an oath prohibited by the State Constitution, and thus operated to alter a part of that instrument, which it was contended could only be effected in the mode pointed out by the 11th article of the constitution. He had already shown that it was paradoxical to hold that the authority of a convention of the people could be restrained by the constitution, which was but an emanation of that authority. — . Pie was aware that some who admitted the unlimited power of a convention, contended that this must be understood, in reference to the subject specially confided to them — he could not subscribe to the distinction, but for the sake of the argument, would now concede it to be correct. It has been made to appear, that the subject matter of the Ordinance in the present case, was within the scope of the call — and therefore by the strictest rule of construction, within the rightful authority of the Convention which was allowed to be paramount to the Constitution. As to the 11th Article which was referred to, it clearly had nothing to do with the case — it was manifest from the whole tenor and context of the article, that it related exclusively to amendments to the constitution by the action of the legislature, and did not even purport to impair the authority of a convention of the people. It had also been said,- (and he confessed he was somewhat surprized at the position) that granting to the convention the authority to alter the Constitution, it was an authority which could not be delegated to the legislature. In this argument it is forgotten that an Ordinance of the convention, if contrary to the constitution, is in itself an alteration of the constitution — and that it is nothing less than a contradiction in terms, to assert that an act of the legislature passed by virtue of the ordinance, is prohibited by the constitution. Again — a convention of the people of South Carolina represents the sovereign authority of the State; whether upon all subjects or the special subject referred to them, he had shown to be immaterial to the present enquiry. Now, on what is the position founded, that the people of the State, assembled in their sovereign capacity, are incompetent to delegate power to the legislature. Such a notion is contradicted by the whole theory of popular government. What is government, but an agency created by the'people? He had supposed it to be an axiom in our political system, that the people were the fountain of all power^-that the authority of Government was derived exclusively from this source — and how else could it be, but b.y del-egalion ? If a convention of the people was incompetent to delegate power to the legislatuie, then what becomes of our state government— what of the federal government! The powers severally exercised by these governments m this State, are derived from no other source thap conventions of the people ; and if such power could not be delegated, it follows that the legislature of our State, and the Congress of the United States, are a set of lawless usurpers. It would seem of itself fatal to the arg-ument of the other side, that the very article of the constitution which is relied upon to support this objection, is nothing less than the delegation by a convention to the legislature of the power to alter the constitution. An authority was quoted upon this question — the opinion of the venerable Judge Nott, in the case of the City Council v. Pinckney, (1st Tread. 48) which is to the effect that an “inferior corporation” is incompetent to delegate a power which it was required to perform itself. To make the opinion avail any thing in the present question, it must be shown that a convention of the people, instead of representing the sovereignty of the State, and being the fountain of all authority, is but a mere chartered corporation. The last objection to the validity of the Ordinance is, that it is repugnant to the constitution of the United States. This alleged discrepancy is supposed to consist in that part of the Ordinance which declares in substance that allegiance is due to the State, and obedi. ence only, and not allegiance, to the United States. It will be observed that the convention has not undertaken to determine as to the degree or extent of the respective obligations of the citizen to the State and the United States. That question has been left open by the OrdL nance. Allegiance and obedience are supposed to be convertible terms. It would be proper therefore in the outset, to mark the distinction. Allegiance he contended, was that obedience which was due to the sovkeign, and which could belong only to the sovereign. — . The term itself was borrowed from feudal times, and grew up from political relations which subsisted under that system. It is thus defined by Lord Coke, (1st Com. Dig. Tit. Allegiance (A) “Allegiance or ligeance, is that lawful obedience which a subject is bound to render to his sovereign.” — Coke on Litt. 129 A. It was very distinguishable from the oath qf fealty, or that obligation of the subject which was termed fideletas. That was the relation which subsisted between the vassal and his immediate lord, who was himself subject to a superior, but “when,” to use the language oí Sir Wm. Blackstonc, (1st vol. 10th c.) “the acknowledgment was made to the absolute superior himself, who was vassal to no man, it was no longer called the oath of fealty, but the oath of allegiance,” and therein the tenant swore to bear faith to his sovereign, without any saving or exception — “Contra omnes homines, jidelilatem fecit.” Under monarchial systems of government, the duty of allegiance was held to be applicable not oníy to the 'political capacity of the king, but also to his natural person ana bloodroyal. Judge Tucker, commenting on the text of Blackstone in which this principle is asserted, observes, that such a principle has no existence in the United States — that it is a scion from that idolatrous veneration for the regal character which ascribed sacredness to bis person and absolute perfection to his mind. “Allegiance in America,” says the Judge, “is only due to the State.” — P. 370 of 1st vol. Black. 2d P. There was no doubt however, that in our own country this term had been loosely and indiscriminately used, and he thought that much of the confusion in men’s minds was owing to the notions which prevailed abroad on this subject. Under monarchial systems of government, allegiance was supposed to be synonymous with obedience to the government, and well enough, because with them the government was the sovereign. But as with us, the only sovereign was the people, it was obvious that the application of the term as used by foreigners would be, under our system, a misnomer. Allegiance in the true and proper sense of the word, being’ due only to the sovereign, it was manifest that it must be, in its nature, one and indivisible. It had already been shown that this was of the very essence of sovereignty, and as allegiance was the appendage of sovereignty only, it was evident that it must in this respect partake of the essence of its principal. In determining then to whom the allegiance of a citizen of South Carolina was due under our federal system, the question recurred, where was the sovereign1 This question had already been considered, and it was shown, he thought, that the sovereignty of South Carolina resided only in the people of the State. One of the most striking of the errors which pervaded the reasonings on the other side of this question, consisted in not distinguishing between the sovereign and the agency to which, for the purpose of government, the sovereign had committed certain visible and active attributes of sovereignty. Such as the power to make war, peace, tieaties, levy taxes &e. Such powers had been vested in the federal government, and if it was true that the existence of these attributes constituted sovereignty, it must follow that the government is the sovereign, which was confessed to be an untenable position. Another fallacy in the arguments against State sovereignty was, in supposing that a sovereign State could not impose any constraint on the exercise qf its sovereignty in virtue of voluntary engagements, without ceasing to he a sovereign. But it had been shown, by the highest authority of international law, that such an opinion was totally unfounded. Under the “articles of confederation,” it will be conceded that the allegiance of a citizen of South Carolina was due exclusively to the State, as his only sovereign. It will also be conceded that what was not transferred by the federal constitution was retained by the State. Nowit will not be disputed that there is nothing in that constitution 'which speaks of a transfer of the allegiance of the citizens of the State. When South Carolina acceded to the confederacy/it. will not bo said that any abjuration of allegiance to the State was demanded of her citizens. On this subject the constitution was silent, and thus left the obligation of allegiance where it found it — due exclusively to. the State. The opposite position led to results certainly the most singular and curious. It was not asserted that our allegiance belongs to the federal government, but that it is due to the Stales which composed the confederacy. The result was, that the allegiance of the citizen, instead of being one and indevisable, was split up and divided between twenty-four different sovereigns, it was also proper to consider the nature of the connexion between the citizens of this State and the other States of the Union. It was too clear to be contradicted, that it was a connexion entirely through the medium, of our State — that it is founded exclusively on the political compact into which South Carolina has entered with the có-States, and is obligatory on her citizens solely by virtue of their allegiance to the State. Thus, when it is declared that the constitution and laws of the United States, made in pursuance thereof, shall be the supreme law, the obligation of Obediehce to those laws arises from no other cause, than that South Carolina as a sovereign State, has stipulated that her citizens shall render this obedience. Thus also when it is provided that the citizens of each State shall be — mark *he distinction I —not citizens of the other Slates, but shall “be entitled to all privileges and immunities of citizens in the several States,” this benefit to the citizens of South Carolina is derived entirely by virtue of the covenant which the State has made in their behalf. The 8d sec. of the 3d art. of the federal constitution, which speaks of treason against the United Stales, has been pressed upon the attention of the Court, and it is argued that since “treason and the violation of allegiance are convertible terms,” allegiance must be due to the United States.— This argument was fully met and answered by the view which has been taken of the nature of our connexion with the other States.— Why was it, that certain acts by a citizen of South Carolina constituted treason against the U. States? It was not by virtue of any inherent authority in the other States, over the citizens of this State, but exclusively because South Carolina had so willed it, and thus .thought fit to bind her own citizens. Such a provision might have been introduced into the articles of Confederation, without at all impairing the sovereignty of the State or the Allegiance of the citizen. It was also a mistake to suppose that the crime of treason necessarily implied a breach of Allegiance. This was the case in England, whore the Government was the sovereign, end where therefore an offence against the Government was, ex vi termini, a violation of Allegiance. Blit it did not follow, that our constitutional enactments on the subject, of treason are to be squared by the common law of England. Would it not be competent for the States to make an act treason against the President of the U. States, or the Governor of a State, but would it follow that Allegiance was due to the President or Governor ?— Granting, therefore,"that under the provisions of the Constitution, treason can be committed against the U. States, non sequitur that Allegiance is due to the U. States. The result then, was, that under our Federal system, the State was the only sovereign; and as allegiance was co-relative only to sovereignty, it was evident that it could be due cnlv to the State. Mr. F. said he would now leave the objec-*'ons Presented against the validity of the Ordinance, and notice very jjrje:gy a question which was raised as to its construction. It is con. tended, that under the provisions of the Ordinance, the only mode in the Legislature was empowered to act upon the subject of Allegiance, was by an alteration of the Constitution. Such a construction is not only unwarranted by the phraseology of the Ordi. nance, but renders the act of the Convention totally idle and nugatory. Under the Constitution itself, (Art. 11) long before the Ordinance of 1833, the Legislature possessed the power of altering the Constitution, and'could unquestionably, in this form, have passed an Oath of Allegiance. Unless, therefore, it can be supposed that the Convention intended the solemn farce of granting to the Legislature a power which they, in terms, already possessed, the construction contended for must be abandoned. Supposing therefore the Ordinance to be valid, and to confer upon the Legislature the power of passing an Oath of Allegiance by an act of ordinary legislation, the only other question was, whether the Oath in the “ Military Bill” could be connected with the Ordinance, or in other words, was a valid execution of the power. Under this head of the argument, the first specification is, that the act of the Legislature does not in terms refer to the Ordinance of the Convention. It must be evident, that there is nothing-in this objection. Who ever thought that it was a valid cause of exception to an act of Congress, that it did not expressly refer to the clause of the Constitution which authorized the act. It was clear that the two cases were strictly analogous. The Legislature had no authority (as was now supposed) to pass the oath in the “Military Bill,” except by virtue of the Ordinance; and Congress had no authority to pass any act, except by virtue of a power granted in the ’ Constitution of the United States. If, therefore, it was necessary m this case for the Legislature to refer to the Ordinance, it was alike necessary, in all cases, for Congress to refer to the Constitution. As a matter of law, there could be no doubt upon the question. That an act may "be valid, without taking notice of the power under which it is authorized, see 7th Com. Dig. Tit. Power, C. 4 — 2d Leon, 151— Ambler, 740 — also, in our own Reports, Magwood v. Legge, Harp. 116. The cases quoted on the other side, so far from overthrowing, confirm this position. In Maundrell v. Maundrell, 10th. Ves. 257, it is expressly said that “the authority of Sir Edw. Olere’s case, as well as all general doctrine, seems to furnish this, that it is not necessary to recite that one means to execute a power, if the act is one that he can do, only by that authority.” The question, therefore, is brought to this dilemma. The Legislature either had, or had not, the power to pass ' the Oath of Allegiance, without the Ordinance. If it possessed the power, without the Ordinance, it must have been by virtue of the Constitution, and it will not be contended that in such case the Constitution must be referred to — but if it had not the power without the Ordinance, then under the very Law which is quoted on the other side, the Ordinance need not be referred to. The 2d specification to show that the Oath in the “Military Bill” was not a good execution of the power, was that it did not require, conformably to the Ordinance, an abjuration of Allegiance to the U. States. The first question is, whether under the terms of the Ordinance, the Legislature was bound to 
      insert in the Oath an abjuration of Allegiance to the U. Slates. By the construction which is contended for, there was but one form of Oath, which the Legislature was empowered to exact, to wit: an Oath of Allegiance to the State, and of abjuration of all other allegiance. However often, and under whatever circumstances, the power granted may be exercised, this oath, and no other, must be exacted. Now how can this construction be reconciled with the terms of the Ordinance, when it says, that the Legislature shall be empowered “'from, time to time,” when they, may deem it proper, to provide for the administration of “suitable oaths or affirmations,” &c.— . Assuredly a power to enact from time to time suitable oaths, is something more than the power to enact but one form of oath. Unless language has lost its meaning, or the Convention did not intend what they have said, it is too clear for argument, that it was supposed that an oath which may be suitable at one time, might be unsuitable at another, and it was therefore designed by the Ordinance to confer upon the Legislature a discretionary power, to prescribe from time to time such an oath of allegiance as they might then deem expedient and proper. But supposing that the Ordinance made it in terms, imperative on the Legislature, to require an abjuration of allegiance to the United States, several questions occurred. 1st. Whether the Ordinance was in this respect invalid. It it was so, as is contended on the other side, it was obvious it could impose no obligation on the Legislature to adhere to that particular provision. If, however, the direction was valid, as it was founded on that part of the Ordinance which declares that allegiance was due exclusively to the State, it resulted .from the whole operation of the Ordinance, that an Oath of Allegiance to the State was substantially and ex vi termini an abjura-lion of all other allegiance, and therefore the expression of such abjuration would have been tautology. The objector then stands in the fallowing dilemma. If that part of the Ordinance which requires an abjuration of allegiance to the United States be null and void, the absenee of such abjuration m the oath, is an argument in favor of the oath — and if, on the contrary, the ordinance be valid in declaring that allegiance belongs to no other authority than the State, then the oath in the “Military Bill” is a substantial execution of the power granted. To show that in law a substantial execution of a power is sufficient, Mr. F. referred to the following cases: Roberts v. Dixall, 2d Eq. Ca. Ab. 668 — Newport v. Savage, Sugden, Appx. No.'20 — Long v. Long, 5th. Ves. 445 — -Kenworthy v. Bates, 6th. Ves. 793 — Wykham v. Wykham, 18th Ves. 414 — Bullock v. Fodgate, 11. Ves. & Beames, 471 — Wilson v. Troup, 7th John. Ch. Rep. 25. Again — The oath in the act under consideration may be sustained on another ground, as a warrantable execution of the power conferred by the Ordinance.— The power granted in this case to the Legislature is, to require from citizens or officers of the State, suitable oaths, binding them to the observance of their allegiance to the State, and abjuring all other allegiance. Now the question is, whether an oath merely of allegiance to the State, without containing an abjuration of all other allegiance, would not be a lawful execution of this power. That an act executed under a power need not exhaust the whole power granted, was a position which could not be controverted. It was a‘ rule of law, that any act within the limits of the power would be valid. Thus tt p0Wer t0 lease for 21 years warrants a lease for 14 years, and a power to sell authorises the execution of a mortgage: Sugden, 478 — Mills v. Banks, 3d Peere Wms. 9 — 2 Burr. Rep. 1147 — Isherwood v. Oldkind, Maulé & Seiw. 392. The several powers of Congress might also be adduced in illustration of the position — with reference to them, it would hardly be contended, that it was essential to the validity of the act, that it should exhause the whole power. Thus then stands the case. The Legislature possessed a twofold authority under the Ordi-nancei 1st. To require an oath of allegiance to the State; and 2d, an abjuration of all other allegiance. By the “ Military Bill,” they have exacted the Oath of Allegiance without the abjuration. It is obviously then an act within the limits of the power granted, and was therefore valid.
    Mr. F. said, that he had now concluded the discussion of all the questions, which.had appeared to him to belong to this important case. He was too well awa.re oí hia proneness to error, not to know, that in the views he had supported, he might be altogether wrong. Impressed with this thought, and freely according to others the same integrity of purpose which he claimed for himself, he could attach no blame, and felt not the smallest particle of unkind ness, to any who differed from him. Pie had the consolation to know, that he had devoted to the subject under examination his best reflections — and he was not conscious of having advanced a doctrine, or expressed a sentiment, which did not meet the full approbation both of his head and his heart. His views in this case, as was apparent, rested on the broad basis of State Sovereignty — a truth which he considered as absolutely essentia], not only to the strength and beauty, but to the very existence of our Federal system; and while he valued the union of all the States as the source of many blessings, he regarded the sovereignty of each as the very rock of our liberties. Iudulging the belief that as a citizen of South Carolina he was bound but to one Sovereign, the State — and that allegiance was in its nature the accompaniment of sovereignty only — he was inevitably brought to the conclusion, that his allegiance was due exclusively to South Carolina.
    He rejoiced that on this subject the dictates of his judgment corresponded with the feelings of his heart — that he had no desire to recognize any other sovereign than South Carolina — and as long as the home of his affections was identified with her cherished soil, he was content to look to her sovereign will alone, as the oracle of his political duties. He felt none of the scruples and perplexities1 which embarrassed others, on the subject of a divided Allegiance. He avowed that his first, his undivided — his only Allegiance, was due to South Carolina, and he trusted that he should never be found to falter, or shrink, from the obligations she imposed. He hoped, that as the hum. blest of her sons, he should ever, amidst all the circumstances of life, prove faithful and true to his “native State,” even though it should be “treason to love her, and death to defend.” With these observations he submitted the case to the judgment of the.Court.
    
      MR. (ATTORNEY GENERAL) SMITH’S ARGUMENT.
    The Counsel for the Appellant, in opening the cause, enlarged upon that happy feature in American institutions of Government, by which the Judicial may overrule the Legislative authority, and there may be an appeal from the Law to the Constitution. Without questioning’ the existence of this principle in our systems of Government, it may be well to consider the guards and reservations under which alone it will ever be exercised. In the case of Fletcher v. Peck, 6 Cranch, 135, Chief Justice Marshall says — “ The question, whether a law be void for its repugnancy to the Constitution, is a question which ought seldom, if ever, to bo decided in the affirmative, in a doubtful case. The opposition between the Constitution and the Law, should be such that the Judge feels a clear and strong conviction of their incompatibility with each other.” To the same effect, but more pointedly, is the strong-language of Judge Waties, in our own Courts. In the case of Adm’ors of Bryan v. the Adm’ors of Stewart, 3 Dess. 476, he says — “ Whilst I assert this power in the Courts, [the power of supervising the acts of the Legislature] and insist on the great value of it to the community, 1 am not insensible of the high deference which is due to the Legislative authority. It is supreme in all cases in which it is not restrained by the Constitution ; and as it is the duty of the Legislators, as well as of the Judges, to consult this, and conform their acts to it, so it ought to be presumed, that all their acts are conformable to it, unless the contrary is manifest. This confidence in the wisdom and integrity of the Legislature, is necessary to ensure a due obedience to its authority; for if this is. frequently questioned, it must tend to diminish that reverence for the laws, which is essential to the public, safety and happiness. I am not, therefore, disposed to examine, with scrupulous exactness, the validity of a law. It would be unwise to do so, on another account.— The interference of the judicial power, with legislative acts, if frequent or on dubious grounds, might occasion so great a jealousy of this power, and so general a prejudice against it, as to lead to measures which might end in the total overthrow of the independence of the judiciary, and with it, the last preservative of the Constitution. The validity of a law ought not then to be questioned, unless it is so obviously repugnant to the Constitution, that when pointed out by the Judges, all men of sense and reflection in the community may perceive Che repugnancy.” Such then is the spirit in which this Court will enter upon this investigation, and will determine the case before it. It is incumbent upon the Appellants, to shew not a doubtful case, but a clear case of confliction between the law and the Constitution.
    1 will first argue this cause, as if the oath in the military bill was passed in pursuance of the Ordinance of the Convention of ’33, and is an oath of absolute and exclusive allegiance to the State. Has the State a right to “such allegiance ?” If she has, of course there can be none due to the General Government, and all objections, based upon any such supposition, are laid aside.
    What is allegiance 1 Words are things, and often the most important things; and a correct conception of the meaning of this word, may settle the whole difficulty in this case. It is in vain to urge that this word originated in feudal and barbarous times. It comes from the same source from which our whole language is derived, and has been transmitted to us from our Saxon ancestors, by as modern use as any other legal term in our language. It formed the great bond of connexion and obedience between the people and their Governments in our Revolution; and there is not a State in the Union but has used it; scarcely a Constitution but has it inscribed upon its face. What is allegiance 1
    “ Liegance,” says Coke, 87, “ is derived 1 a legander,’ being the highest and greatest obligation of duty and obedience that can be; liegance is the true and faithful obedience of a liege man or subject, to his lord or sovereign and in Calvin’s case, quoted by the counsel for the appellants, Lord Coke is still more express and explicit as to its signification. 4 Coke Rep. 4, “liegance is a. true and faithful obedience of the subject due to his sovereign.” Hence I deduce that allegiance is due from, a subject, and is due to the sovereign or sovereignty over him. But what is sovereignty 1 This must also be ascertained, to understand what is the nature of the connexion, or to whom the duty of allegiance is due. “ However they begin,” fsays Blackstone, 1 vol. 49, speaking of Governments) “in what right soever they subsist, there is and must be in all of them, a supreme, irresistible, absolute, uncontrolable, authority, in which the jura summa imperii, or the rights of sovereignty, reside.” Here then is a clear definition of sovereignty, with the necessity of its existence exposed. That authority which is inferior in a State, however great and important, cannot be sovereign; nor can sovereignty have an equal in authority, for then it would not be supreme and uncontrolable. Indeed it is impossible to conceive, that upon the same subject matter two authorities can be supreme, irresistible and uncontrolable, at the same time. One must have the ascendency, and that which has the ascendency has the sovereign authority.— Nor is it consistent with this definition to suppose that sovereignty can be divided ; for this would lead to the same absurdity of supposing two or more supreme authorities in the same State. The right of judging determining and controling, in the last resort, must be single, from necessity; and admits neither of equality nor division. The impression that sovereignty may be divided, has originated from confounding sovereignty with the powers that sovereignty may exercise. Sovereignty is not in power, but in him who possesses it. Power is an attribute of sovereignty ; but it is no more sovereignty, than the actions or conduct of a man, are the man. All sovereign-ties, whether existing in the people, as in a republic, or in the will of a single man, as in a despotism, must exercise power in the business of Government, and these powers must be exercised by agents. The Almighty alone can will, judge, and execute his will. Men, even in the limited arrangements of private life, must, to a great ex-v tent, act through others ; but in the great and extensive affairs of a free Government, the whole machinery of society is but one vast contrivance of agencies. These are employed by -the sovereignty, to execute its wul; some in the Legislative, some in the Judicial, and some in tile Executive departments; but not'one atom of sovereignty is imparted to them. Their acts are the acts of the sovereign who employs them, and he alone is supreme, irresistible, absolute and uncontrolable, in ’ revoking their potvers or abolishing their agencies.
    These views may not appear to he supported by the doctrine of sovereignty and allegiance in England, at the period at which, the counsel quotes the law from Lord Coke. The sovereignty of that country, from the subserviency of the judges, was supposed, at that time, to reside in the King; and in the King, not in his civil, but his natural capacity. In Calvin’s caso, already quoted, Loyd Coke combats with ludicrous irritability the pretension of the Spencers, that allegiance was due to the King in his politic capacity alone. «In the reign of Edward 2d,” he says “the Spencers, the father and the son, to cover tho treason hatched in their hearts, invented this damnable and damned opinion, that homage and oath of liegance, was more by reason of the King’s Crown, (that-is, of his politic capacity) than by reason of the person of the King; upon which opinion they inferred execrable and detestable consequences. 1st, If the King do not demean himself by reason in the right of his crown, his lieges are bound by oath to remove the King. 2d, Seeing that the King would not be reformed by suit of law, that it ought to be done by the sword. 3d, That his lieges be bound to govern in aid of him, and in default of him.” Yet, those inferences, so detestable in the eyes of Lord Coke, were practised upon shortly afterwards, in the Revolution of 1668, and the principles from which they were made, adopted in England. The old oath of allegiance, quoted by the appellant’s counsel, was then abolished, and an oath of allegiance “ to the King” alone, was substituted in its stead. 1 Black. 36. And now, the sovereignty of Great Britain no longer, as in those ancient times, resides in the King, because he has no longer the exclusive attributes of sovereignty, by being supreme, irresistible, absolute and uncontrolable.— Parliament, consisting of King, Lords and Commons, holds the scep-tre of empire in England, and there the ‘■‘■jura summa imperii ” repose — Black. 1, 52, 81. The commentator goes on to observe, in conformity with these principles, that in Republics, the sovereignty of the State is in the People; in an aristocracy, in a select few; in a pure Monarchy, in the King.
    Having now settled that allegiance is due to sovereignty, and that sovereignty is that power in a State, which is supreme, irresistible, absolute and uncontrollable ; the next questions in order, are, was there ever any sovereignty in South Carolina 1 and if so, where was it ?
    South-Carolina was once a sovereign State. The Declaration of Independence declares, “ that these United Colonies are, and of right ought to be, free and independent States, and that they are absolved from all allegiance to the British Crown, and as free and independent States, they have a right to make war, &e. and to do a¡[ otiler acts and things which independent States may of right do.” That the effect of this Declaration was to make each of the separate Colonies, separate Sovereignties, was never questioned, a few years since, by Mr. John Quincy Adams, and lately by tho Proclamation of tho President of the United States. In Milcvain Goxe, Lesse, 4th Cvanch, 214, it is determined in the Courts of the United States, “ that on the 4th of October, 1776, the State of New-Jersey was completely a sovereign and independent State, an(j ]ja(j a rjg¡rá to compel her citizens to become citizens thereof by oaths of abjuration and allegiance.” The Constitution of this State, adoted in 1778, shews the construction which the State put upon this Declaration. The 1st Section declares that the style of this country be hereafter “the State of South Carolina,” and the 3d Sec. requires from all officers, civil or military, an Oath — “ I, A. B. do acknowledge the State of South Carolina tobe a free, sovereign, and independent State, &c.” In the law passed a few days after, on the 29th day of March, 1778, “ to oblige every free male inhabitant of this State, above a certain age, to give assurance of fidelity and allegiance to the same,” the State required every person to swear as follows — “ I, A. B. do swear or affirm (as the case may be) that I will bear true faith and allegiance to the State of South Carolina, &c.” Nor does the evidence of the construction of the State of the purport of the Declaration of Independence stop here. The very first act to raise supplies after the existence of her sovereignty, passed in 1777, begins with the preamble — “ whereas, we, the representatives of the free and independent State of South Carolina, in General Assembly, met,” Sic. and this preamble is prefixed to every bill to raise supplies from that day, down to the year 1797, long after the old Oonfedaration had expired, and the present Constitution of the United States had been in full operation. Indeed, if the sovereignty of the country, after the Declaration of Independence, was not in the State, where was it í It was not until the 15th of Nov. 1777, that the Articles of Confederation were first executed by the Delegates m Congress. It was not until the 9th of July, 1778, that they were ratified by a subsequent Congress, nor until Jan. 1781, that these Articles were ratified by all the States so as to be binding on either of them. Where, during this interval ot nearly five years of independence of the British Crown, and dependence on no other power, did the sovereignty of the country exist, if not in the State 1
    Having thus shewn, I trust, at least to a Carolina judiciary, that the State was sovereign, it may be well to pause in the second en-quiry, if sovereign, where did her sovereignty vest immediately upon the separation from the mother country. Whatever authority was supreme, irresistible, absolute and uncontrollable in this State, possessed her sovereignty. Where was this authority 1 1 answer, it was first in the people in their collective capacity. It was next in the people in their representative capacity, when they thought proper to elect agents or delegates to represent them, and to govern them. It was never in those agents or representatives personally, because they possessed no power of themselves, but only in their Representative capacity. If the people had thought proper to put no restrictions upon their representatives, they could have done whatever their principals could have done ; but still, although omnipotent and wielding the sovereign authority of the people, they would have had only representative power, and their principals, (the people) could have dispensed with their agency, and have overruled, changed and abolished their measures; as they deemed expedient. Nor could the sovereignty of the State.be in the Constitution, when the people thought proper to establish one. What is a constitution 1 It is a charter from the sovereign containing a grant and appointment of powers to his agents for the purposes of Government, or restrictions upon those powers which these agents might be disposed to assume. Would a particle of sovereignty be imparted by the charter, to the agents of the sovereign 1 Surely Pot, unless the agent is supreme, and .then no agency can exist ; for accountability, and controllability, are the very nature of an agency ; and if this was not the case, it would follow that all of his agents, from a Governor to a Constable, would be sovereigns. But if the agents in whom all the powers of the charter vested for the use of the sovereign, are not sovereign, how can sovereignty be in the charter 1 The truth is, the Constitution would be a mere power of Attorney, special or general,,according to its terms, but revokable and changeable according to the will of the sovereign ; nor would the so* vereignty of the country be supposed to be in the laws made by the Legislature or the people. “ Laws are but the rules of action prescribed by a superior, which the inferior is bound to obey.” 1 Black. 1. They arc not the superior. They are not the sovereign. They are merely the declaration of the will of the sovereign, through his Legislative agents — authoritative and supreme over the citizen, so long as they are permitted to be of force, but changeable and revokable at the will of the sovereign or his agents. There was a power above the Government, and the agents of the1 Government, above the Constitution and Laws, by whose authority they all existed, and by whose authority they could all be extinguished. That power was-sovereignty, and that power was in the people.
    Having now shewn, that allegiance is due only to a sovereign, and that sovereignty is that authority in a State, which is supreme, irresistible, absolute and uncontrollable, and that South-Garolina once possessed this high attribute, the next question which naturally arises, is, has the State parted with her sovereignty 1 From the views already partially presented, she has either parted with the whole, or she retains the whole of her sovereignty. A divided allegiance to a divided sovereignty, is an anomaly hitherto unheard of in any country, civilized or barbarous, and leads to consequences as tyrannical as they are terrible. No man can serve two masters, and it is equally as impossible for a citizen to serve two sovereigns; who claim his allegiance with respect to the same powers and duties. The very idea of two authorities over the same subject matter, being “ supreme, absolute and uncontrollable,” is absurd, but when hung over a citizen, for the government of his conduct, its absurdity is merged in its cruelty. Carry out this principle of a divided allegi-anee and a divided sovereignty, to a practical case under our instp. tutions. No possible case of collision between the States anil the (jenera] Government can arise, but upon disputed powers; that is, powers claimed by both Governments. Each Government is supposed to be sovereign as to the powers legitimately belonging to it. Of course> m case °f collision, each Government affirms that the powers it claims, belongs to it. The allegiance of the citizen is tested by an appeal to arms. What is his situation i Both Governments claim his allegiance ; both erect the gallows to enforce it; and if he obeys either, he may die the death of a traitor. No principle can be correct which leads to an alternative so unjust and desperate. One of these two authorities must be the superior, and that which is the superior is alone the sovereign. Nor do our laws, nor the past history of nations, afford any support to a doctrine so monstrous and impracticable. The fealty due by the Tenant to the Lord, in feudal times, did not conflict with the allegiance due to the King; on the contrary, in the oath of fealty there was an express reservation of the superior duty of obedience to the King. Fealty, in fact, in no sense can be termed allegiance, because it was not due to an authority which was supreme. The same distinction applies to what has been termed local allegiance. If allegiance at all, this kind of allegiance may be different from, but it is not a part of the same allegiance which is due the natural sovereign, divided. It is merely the duty of conformity to the laws of the society in which an alien may reside, in consideration of the protection it afforded-him. The allegiance due to his natural sovereign is not divided or impaired by such obedience; but like fealty, local allegiance is entirely subordinate, and cannot conflict with his authority. It is the acknowledged law, both in England and this county, that no citizen, by any act of his own, can, in the least, change or throw off his natural allegiance. 2 Kent. Com. The truth is, the word allegiance, where this duty of conformity to the laws of the country in which an alien may reside, is used in the same loose sense that it is used in discussing the offence of petit-treason. With the same propriety it may be supposed to belong to the City Council of Charleston, because the Corporation affords protection to the citizen. It means, in these cases, merely the duty of a very limited and qualified obedience, and nothing more. But this it not the meaning of allegiance in its highest and proper sense. It is not merely obedience, but it is obedience indissoluble, unchangeable, to one who is sovereign ; that is, to one who is supreme, irresistible, absolute and uncontrollable.
    If then the whole sovereignty of the State is parted with or retained, let us now consider the question — Has South Carolina alienated her sovereignty 1 If she has, it must be clearly shewn. By the humane principles of our law, any presumption is in favor of the criminal, and when the State is accused of this grand political suicide, it must be clearly and conclusively shewn. This is a practical question, affecting the life and the liberty of every citizen. Allegiance was once due to the State, and the path of duty was therefore once plain; when this path is to be changed, it should be distinctly marked out, that the ploughman and the mechanic, the statesman and the jurist, may equally discern its course. Has the State alienated her sovereignty 1 If she has, it must have been by one of two ways — either by the Articles of Confederation, or the Constitution of the United States.
    _ 1. The Articles of Confederation are styled in their comment “Ar-tides of Confederation and perpetual Union between the States of New Hampshire, Massachusetts,” &c. (enumerating the States.)— The first article says — “ The style of this Confederacy shall be the United States of America.” The second Article says — “Each State retains its sovereignty, freedom and independence” — the continuation of the sentence — “ and every jurisdiction and right which is not by this confederation expressly delegated to the United States in Congress assembled,” is clearly no qualification of the previous declaration, but is confined only to the latter. The third article declares that “ the said States hereby severally enter into a firm league of friendship with each other,” &c. Here then, this connexion between the States is termed a Confederacy — a league — and the sovereignty, freedom, and independence of each State is expressly reserved. What then was the ‘nature of this connexion between the States 1 It was a mere treaty — a mere agreement between sovereigns, by which they consented to exercise certain powers together, for the common benefit: and those who carried their agreement into effect, (in other words, who administered the Government) were their common agents; but the parties to the agreement were as completely sovereign after as before its existence. If, however, there could be any doubt from the articles of Confederation, of the correctness of this conclusion, the treaty made by this Confederacy, on the part of the States, with Great Britain, on the 30th November, 1782, would remove them. The first article declares that « His Britanie Majesty acknowledges the said United States, viz: — New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, to be free, sovereign and independent States — that he treats with them as such, and for himself, his heirs and successors, relinquishes all claims tojthe Government, proprietory and territorial rights of the same and any part thereof.”
    2. The second method by which the States might have alienated their sovereignty, is by the adoption of the Constitution of the United States. It will be admitted that they Have not renounced their sovereignty expressly by this instrument. This probably ought to settle the question: for what inference, in the absence of any express declaration, can be sufficiently strong to prove that a nation has voluntarily renounced her self-existence, and has degraded herself mto •an ignoble, powerless dependency % But if it be admitted, on such a question, that implication can be resorted to, it surely should be of the very strongest and the most irrefragable character.
    It is certain, that when the Convention of the States which framed the Constitution was called together, it was not contemplated to alter the sovereign relations which the States then bore to each other. To amend and revise the old Articles of Confederation, by entrusting more power to its Government, was all that it was proposed to effect. This was all that the Convention at Annapolis in 1786 proposed; for in the conclusion, it recommends “the appointment of Commission. ers to meet in Philadelphia, on the second Monday in May next, to take into consideration the situation of the United States — to devise such further provision as shall appear to them necessary to render ihe Constitution of the Federal Government adequate to the exigén-cies of the Union, and to report such an act for that purpose to the United States, in Congress assembled, as when agreed to by them, and afterwards confirmed by the Legislature of every State, will effectually provide for the same.” This recommendation Congress took into consideration — and on the 21st February, 1787, passed the following' resolution: — “ Resolved, That in the opinion of Congress, it is expedient that on the second Monday in May next, a Convention of Delegates, who shall have been appointed by the several States, be held in Philadelphia, for the sole and express pqrpose of revising the Articles of Confederation, and reporting to Congress and the'several Legislatures, such alterations and provisions therein, as shall, when agreed to in Congress, and confirmed by the States, render the Federal Constitution adequate to the exigencies of Government and the preservation of the Union.” In conformity with this intention, the credentials of the Delegates were drawn. They shew that the sole object of the Convention was to revise the Articles of Confederation, and that they stood in the Convention as the representatives of the States. They voted by States. The six smallest States, containing a population of but 1,121,528, could controul a population of 2,501,649. The ratification and adoption of the Constitution they framed, shew also the federative character in which they acted, and their views of the powers they possessed. If the Delegates of this Convention had been the Representatives of all the people of the United States, a ratification of their labors, by a majority of the people of the United States, would have earned the Constitution into effect over the minority; or if they had considered themselves as representing any other States than those which sent them to the Convention, a ratification of a majority of the States would have been sufficient to carry the Constitution into effect over the minority — but how is the fact 1 In the last article of the Constitution, it is declared “ that the ratification of nine States shall be sufficient for the establishment of the Constitution between the Stales so ratifying ihe same.” Here is a clear acknowledgement, that none of the delegates to this Convention could bind the others, and that the Constitution they framed was only obligatory upon each State, by the express adoption of each State. Hence it was that North Carolina continued out of the Union eight months, and Rhode Island fourteen months, after the Constitution was in full operation over the other States, before it was ratified by them.
    Thus far, then, neither from the acts of the States, nor the acts of the Convention, does there.appear to have been any intention of renouncing the sovereignty of the States. But in defiance of these facts, so plainly indicating that this Convention was merely an assemblage of the representatives of the States, in their separate capacities as sovereigns, it has been boldly asserted, that when this Convention, in the Constitution they framed, used the words, “ we, the people of the United States,” they meant that they were the people of the United States generally, as one aggregate mass. This inference is as extraordinary as the effort to fritter away the sovereign rights of a people, by verbal criticism. The history, however, of this passage in the Constitution, shews the meaning which the Convention attached to it. The preamble of the Constitution, adopted unanimously on the 7th August, was as follows : — “ We the people of New Hampshire, Massachusetts, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, do ordain, declare and establish the following Constitution for the government of ourselves and our posterity.” On the 7th ot September, this preamble, with the articles adopted, was referred to a Committee, raised to revise the style and arrange the articles agreed on by the Convention. When the Constitution was reported by .the Committee, the enumeration of the States was omitted, for a most obvious reason.— At that time, one of the States had sent no delegates to the Convention, and the delegates of another of the States had withdrawn.— There was good reason, therefore, to suppose that all the States enumerated might not adopt the Constitution, and consequently the enumeration would be erroneous, and an alteration afterwards of the Constitution would be necessary. To prevent this the whole enumeration was stricken out; but the sense was supposed to be the same. They were “ the People of the United States,” for the States and the people of the States were united under the confederation then existing.
    Another argument from the words of the Constitution, is raised from the clause defining in what treason against the United States shall consist. 'Treason, it is contended, is a violation of allegiance. Allegiance is due to a sovereign, therefore the United States are sovereign. That there is some plausibility in this argument will not be denied. Originally, undoubtedly, treason consisted in a violation of allegiance — but this principle was departed from by innumerable statutes. Blackstone, 4,92, in concluding his treatise upon this subject, says, “ Thus much for the crime of luesie-majestatis in all its branches, which consist, we may observe, originally, in grossly counteracting that allegiance which is due from the subject, by either birth or residence, though in some instances the zeal of our Legislature, to stop the progress of some high pernicious practices, occasioned them a little to depart from this primitive idea.” The truth is, the departure was not a little, but to a very wide extent. Counterfeiting money, washing or clipping coin, and various other offen-ces, were declared to be treason, for the purpose merely of suppressing these offences, by attaching to them the high penalties of treason. The Congress of the United States has declared that all persons engaged in the African slave-trade, shall be deemed guilty of piracy. Yet, can such an offence be termed piracy, in the strict meaning of the word ? It is within the power of the Legislature to declare that any offence, however insignificant, shall be felony, treason or any other crime, and the penalty attached' to such crime will follow the conviction. The object in the Constitution might be the same that has actuated the legislation of Congress and of Great Britain — merely to suppress a crime by putting upon it the highest penalties of the law, without intending in the least to touch the question of allegiance. Besides, why may not sovereigns mutually agree and declare, that if any of the citizens are taken in arms against a league existing between them, it shall be treason or felony! If the league is theirs, resistance to the league is resistance to them ; and without parting with one particle of their sovereignty, they may declare it to he any offence they please, and attach to it whatever penalties they please. “ But,” says the counsel for the appellants, “ all indictments for treason must conclude contra ligeantim sum debitum.” This is a mistake, for in Tucker’s case, 2 Salk. 031, “ It is true, some precedents of indictments want the words contra ligeantim sum debitum, but to these, the Chief Justice said they were cases of treason, made by particular acts of parliament, and not when the fact was treason in its nature ; and that in such case, it is sufficient if the indictment pursued the words of the statute, and concluded contra formam stalu-ti, without concluding contra ligeantim sum debitum.” In conformity with this principle, an indictment for treason under the Constitution cf the United States should probably conclude, “against the Constitution of the United States.” The only precedent for treason in the Courts of the United States, which 1 have been able to find, does not conclude against the allegiance of the accused. Chitt. 2, 59. Fries’ case.
    The various clauses in the Constitution of the U. S. in which a citizen of the U. S. is spoken of, has also boen seized upon, as the basis of an argument, to shew that sovereignty is imparted by this Constitution. It is argued, that there cannot be a citizen without a sovereign ; and therefore) the fact that citizens of the U. S. are mentioned in the Constitution, by the force of the terms imply sovereignty in the U. S. This argument, like many others in this discussion, rests upon the arbitrary meaning- assumed of the word citizen. If the word citizen does not necessarily import relation to a sovereign, the whole argument falls to the ground. Now, it will not be contended, that originally, sovereignty had any thing to do with citizenship. The word citizen merely means an inhabitant of a city. Cities were not sovereignties, but they enjoyed certain privileges and immunities which were imparted to tiieir inhabitants. This word is still used in the same acceptation, in all incorporated towns, wherever the English language is used, without implying allegiance, or having any relation to sovereignty. Let it be conceded, however, that the meaning of this word has been extended, and that it might he used so as to imply a relation to sovereignty — is this the sense in which it is used in the Constitution of the U. S. %
    
    That clause of the Constitution of the U. S., which constitutes the citizens of the several States citizens of the U. S. is in the following words — “ The citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.” 4 Art. 2 Sec. Now, from this clause, I infer, that by this Constitution, without this clause, the citizens of each State would not have been entitled to the “ privileges and immunities” of citizens of the several States. No “ privileges or immunities” could have been possessed or enjoyed by a citizen of one of the States, in any of the other States,' but by their special permission or legislation. But what is the meaning of a citizen of the U. S. as constituted by this clause? Is it any thing more 01 less than a citizen of “ each State” who has a right, by virtue of such citizenship, to all the “ privileges and immunities of citizens of the several States,” when in any of them 1 These “ privileges or immunities” cannot alter his relation to his native State ; on the contrary, it is only through his native State, and because he is her citizen, that these privileges and immunities, by the Constitution, can be enjoyed. Once dissolve his con-nexion with his native State, and they are gone. But what are pri-viieges and immunities 7 Are they allegiance % Allegiance is a duty or obligation, not a privilege or immunity. Do privileges or immunities necessarily imply allegiance 7 Surely not. The privileges of the city of London or New York may be enjoyed, where there is no sovereign, and no allegiance. A citizen of one country may enjoy the privileges and immunities of any other country, and he would owe obedience or local allegiance (as it is called) as the price of these privileges, but his natural allegiance to his native sovereign would not be impaired and could not be dissolved. There is no such being, then, under the Constitution of the U. S., as a citizen of all the Stales generally. A citizen of the U. S, is a citizen of one of the States of the confederacy, entitled, under the Constitution, to the “ privileges and immunities of the citizens of the several States.” He owes allegiance to his native State; and he owes obedience, as the price of the privileges and immunities he enjoys, when residing in any of the other States, to their constituted authorities and laws. But it is asked, how aro foreigners naturalized 7 — aro they not made citizens of all the States generally 7 I answer, no. A foreigner can only be a citizen in these U. S. as a native is a citizen. When made a citizen, he becomes a citizen of the State in whose Courts he is naturalized ; and through that State, he becomes entitled to all “ the privileges and immunities of citizens of the several States.” But what of the citizens in the Territories of the U. S. 7 Are they not citizens of all the States generally, and do they not owe allegiance to the United States 7 The answer is plain — when a citizen of South Carolina thinks proper to emigrate and settle upon the lands belonging to the U. S., he no more owes allegiance to the United States, on that account, than he would owe allegiance to me, if he were with my permission to settle upon my lands. If a government is established m the Territory, the Territory would then be in the situation of a Colony. The citizens inhabiting it owe allegiance to their native sovereigns — the States from which they emigrated — .and obedience to the Territorial authorities, in whom no sovereignty exists, and to whom therefore no allegiance could be due, on account of the protection afforded to them. When erected into a State, the relation then alters. The States have agreed that a new sovereignty, under the Constitution, shall then be erected, and that the allegiance which may have been due to them by those citizens composing this State, shall be transferred to this newly erected sovereign.
    It has been further argued from the words of the Constitution, how can the State be supreme and absolutely sovereign, when the Constitution may be altered .by three fourths of the States, and be obligatory on her, against her will 7 Did the Constitution of the United States come into existence or continuo in existence over ttio State, by any course but her voluntary contract, there might be some force in this argument. Undoubtedly no society of people, liable to have their government altered by a power not amenable to them,- and not deriving its authority from their voluntary agreement, can bo said to be sovereign : but the truth is, any alteration of the Constitution of the U. S. by the majority agreed upon between the States, is the will of all, because the contract of all. The Constitution may be amended against the vote or immediate will of the State, but it is scarcely possible to conceive that it can be amended against her ultimate and supreme will. If she finally submits, after voting against an amendment of the Constitution, she will do so, only because, upon a comparison of advantages and benefits, she will deem it better to acquiesce in the amendment, and take it with the other benefits the Constitution imparts, than dissolve her contract, and withdraw from the confederacy. When she does submit, however, under such circumstances, it will be because she ultimately wills it, having the supreme and absolute authority to take it, or not, as a part of her government. The amendment will not be obligatory, because the other States will it — it will not be an act of power in them, but a clear case of volition, free volition, in every Stale which submits to it. If it be urged, that the State has no option to submit to it, and has no right to secede ; L ask, why? The only reason which can be assigned, is, because the States are not sovereigns, and the people of the United States are one people. — ■
    But this is begging the very question to be proved, and is therefore no argument, besides being, as I have endeavoured to shew, historically false. If it be urg-ed that the State has no right to break her contract, and secede from the Confederacy, because the other States may have the right to make war upon her — the fact of the reasoning may be admitted, and its force denied. Where sovereigns enter into a compact for their mutual benefit, (not agreed to be perpetual) each of them may withdraw whenever he deems it expedient, without injury to the other parties. But admit that the other parties have a right of war, in consequence of the violation of faith in the party withdrawing — does the mere right (justifiable right if you please) in one sovereign to make war upon another, destroy the sovereignty of the party upon whom the war is made, or prove that he never possessed it? If so, there is not a sovereign nation in Europe; for there is not one which has not given justifiable cause of war to other nations.
    The same train of reasoning may be given, in answer to the other question which has been proposed — can the State establish a limited monarchy within her territories, in defiance of the 4th sec. of the 4th Article, by which “ the United States shall guaranty to every State m the Union, a republican form of government, and shall protect each of them against invasion,” &c. Supposing the guaranty in this clause not to apply solely to cases of invasion by any foreign power, interrupting the existence of a republican form of government within a State, it is obvious that this clause was intended to confer a-privilege, and not to put a restriction, upon the separate States. A guaranty is an obligation upon the party guaranteeing, by which a right or privilege is conferred upon the party to whom the guaranty js made. Here a republican form of government is the privilege or benefit, which all of the States have obligated themselves to secure to every State, which may require it. But suppose that a State should not require it, would the other States have a right to enforce such a form of government upon herí This would be converting a privilege into an obligation, plainly against the import of the clause. But the most conclusive answer is, admitting the right in the other States of prohibiting a monarchial form of government, in .any one of the States, whilst in the confederacy ; yet, such a form of government might be established, by dissolving the compact, and seceding from the confederacy. And oven should this be done, under circumstances which would make it wrongful, it would only give a right of war to the parties injured ; but this would be no proof of the non-existence of sovereignty in the party seceding.
    But passing over other verbal criticisms, 1 come to the chief ground, on which it is said that the sovereignty of the States have been conceded, viz : the important powers parted with by the States, and conferred upon the General Government by the Constitution of the United States.
    All powers over the body politic are sovereig-n powers ; and the greatest not more so than the least. It is true that some powers are more important than others, but their character is the same. They are not self-existent, but are mero attributes, and appertain, in the body politic, to the great source of all power, the sovereignly of the Slate. That Government, and the powers of Governínent, are mere trusts — and that those who wield them are merely agents of the people, are principles in our American institutions, scattered all along the records of our Revolution. In the Declaration of Rights, passed by Massachusetts in 1780, the 5th section of the 1st Article declares, “All powers residing originally in the people, and being derived from them, the several magistrates and officers of Government, vested with authority, whether legislative, executive or judicial, are their substitutes and agents, and are at all times accountable to them.” — . The Declaration of Rights, passed by Maryland in 1776, in the 4th clause, declares, “ that all persons, invested with the legislative or executive powers of Government, are the trustees of the public, and as such, accountable for their conduct.” The bill of Rights of New Hampshire declares, (sec. 8, part 1,) “ All powers residing originally in, and being derived from the people, all the magistrates and officers of Government arc the substitutes and agents, and at all timos accountable to thorn,” — and to the same effect is the Constitution of Vermont, Art. 1, sec.- 6, — and of Virginia, Bill of Rights, sec. 2.— Indeed this was the great principle of Government, which our Revolution established. Previous to that era, Government and the powers of Government, were, at least in practice, supposed to belong to those who held them. Our Revolution established that all Governments and the powers of -Government, are but trusts and agencies for the people, to whom they ultimately belong. If this position be correct, it will be impossible to establish that, by the concession of limited powers of Government, sovereignty is conceded, Such pow-ws will still belong to the sovereign who concedes them, and those who wield them will be his agents. These positions are plain enough, when applied to a single Government, as that of a State. — But when a double agency is cheated, that of the State and that of the General Government, confusion is apt to ensue. But suppose that the same powers Which ¿íro now conceded to the General Government, were added, inpiiy State, to the State authorities. They certainly were in the -State Governments before the present Union was formed, and they would return to them if the Union was dissolved. Would it for a moment be supposed, under such a contingency, the State had renounced her sovereignty ? Or suppose, that instead of being added to the authorities in being, these powers were vested in a council in a State — would not the sovereignty of the State still remain with the people ? and would such powers be any thing but trust powers in the hands of those who held them ? Now can it alter the case in. the least, if these powers, instead of being entrusted to an agency within the State, and solely responsible to her, should be entrusted to an agency without the State, and created by her, and responsible to her in common with others 1 Such, in fact, is the General Government, by the compact of the Constitution of the United States. The States have agreed to erect a general agency, responsible to them in various ways — for directing and managing their foreign affairs. An agency of a similar character, but of fewer, not inferior powers, had existed between them by the Articles of Confederation. By these articles, the States had entrusted to a general agency, the power of making war and peace, of sending embas-sadors, and forming treaties, regulating the coin, fixing the standard of weights and measures, regulating the post-offices, &c. The sovereignty of the States remained unimpaired and unimpaired by the grant of these powers. Why should it be supposed to have been conceded by the Constitution of the United States 1 There were but two powers of any consequence added by this instrument to those existing in the Confederacy. The power of taxing the citizen directly, and the regulation of foreign commerce. The former was necessary to the efficiency of the general agency, and to make it answer the purposes for which it was created. The latter was expedient to prevent collision between the States. But what is there in these powers, which was not in any or all of the powers already conceded, which necessarily imply that the States have, by conceding them, renounced their sovereignty? Why, in England the King has the right of declaring war and peace, Off making' treaties, and of regulating commerce by the formation of treaties. Is the sovereignty of Great Britain in the King, on account of these powers ? Tho Commons lay ail the taxes, although the Lords and the King can reject — does this power impart sovereignty? The sovereignty of Great Britain is in the King, Lords and Commons assembled in Parliament, becáuse unitedly they are the supreme authority of the empire ; but it is not in the Government, nor any particular department of the Government, nor in any particular powers any of these departments may possess, if in Great Britain then, where prerogative enters largely into the Constitution, the very powers which by the Constitution of the United States are conceded by the States, do not impart sovereignty, why should they have this effect in our free institutions 1
    If these views then, be correct, there is no sovereignty in the General Government on account of the powers it possesses. The General Government, like all other Governments, is an agency established by the.States. All of its powers are trust powers, belonging ultimately to the States — and those who wield them are the agents of the States. But if these views are erroneous, and the States have parted with their sovereignty, where is it 1 If it is in the powers conferred by the Constitution, in which of these does it exist 1 Is it in the Executive t That department, until of late, so far from being supreme, was thought .to be of very limited authority, if is liable to be controlled by the Legislature and the judicial power. Is sovereignty in the judicial department ? That merely expounds and enforces the laws ; it does not control or change them. Is it in Congress, the legislative power 1 The legislation of Congress is limited by the Constitution. Instead of being omnipotent, supreme and uncontrollable, the scope of its legislation, honestly observed, is of a very limited character, and controlled by both the Executive and the Judiciary. Is it in the Constitution of the U. S. or the laws passed in pursuance thereof, which are declared to be the Supreme Law of the land ? There can be no sovereignty in laws— for although they may be, (as they always are in a simple government,) supreme over the citizen whilst of force, they are never supreme over the sovereign; and are controllable and changeable at the will of the Legislature. How can sovereignty be in the Constitution 1 The Constitution is but the joint agreement, by which the powers it contains are conferred and apportioned amongst the agents who administer them. The Constitution, like the laws, although supreme over the citizen, whilst it continues, is not supreme over the sovereign, who can control, alter, and change it, as he deems expedient. Lastly, is the sovereignty of the States vested by the Constitution of the CJ- S. in the community of States or the peoples of the States ? The words, “States,” and “ peoples of the States,” I suppose when speaking of sovereignty, possess the same meaning: for sovereignty is only in the people of a Slate — when therefore the « States” are said to be in community, it can only mean that the sovereignties,- who are “ the peoples of the States,” are in community. Mr. Madison, in his report upon the Virginia Resolutions, has remarked upon the various meanings of the word “ States,” shewing the correctness of these views. “ It is indeed true “ ho says,” that the term-“States” is something used in a vague sense, and sometimes in different senses according to the subject to which it is applied. Thus it sometimes means the separate sections of Territory occupied by the political societies within each : sometimes the particular government established by those societies : sometimes those societies as organized into those particular governments : and lastly, it means, the people composing those political societies in their highest sovereign capacity. Although it might be wished that the perfection of language admitted less diversity in the signification of the same words, yet, little inconvenience is produced by it, when the true sense can be collected with certainty from the different applications. In the present instance, whatever construction oí the term “ States” in the Resolution-may be entertained, all will at least concur in that last mentioned ; because in that sense, the Constitution was submitted to the “ States in that sense the “ States” ratified it; and in that sense of the term “ States” they are consequently parties to the compact from which tho powers of the Federal Government result.” Supposing then, the word “States,” to mean “ilie people of the Slates,” — is the sovereignty of the States, under the Constitution of the United States, vested in “the Community of the peoples of tho States” — or in other words, in all tho people of the States, as one general aggregate community 1 This theory will be easily refuted, by keeping in view the meaning of the word sovereignty, and comparing with it the powers which all the people of the U. S. as a general mass, under the Constitution possess. Sovereignty, as previously defined, is that authority in a State, which is supreme, absolute, irresistible and uncontrollable. Now, so far from all the people of the ’States, as one community, being supreme, absolute, irresistible, and uncontrollable — they certainly, under the Constitution, have no separate power at all. They can neither make, nor repeal a law. Under the organization of the legislative power, one-third of the people in the Senate may prevent or make a law', against the will of the other two-thirds — no-treaty can be made but with the assent of two-thirds of the Senators present, who may represent not one-third of all the people of the U. S. Nor are they recognized, in that'great test of sovereignty, the power to alter or abolish the fundamental law of tho body politic — the Constitution. In the States alone, in Legislature or Convention, this power by the Constitution resides ; and three-fourths of these are necessary to effect an amendment of its provisions. Now seventeen (17) of the largest States in the Union contain 11,605,118 inhabitants, and seven (7) of the smaller States contain but 1,051,623 ; hence, one-twelfth of all the people of the U. S. can prevent an amendment desired by tho majority of eleven-twelfths. These views and facts appear to me to demonstrate, that so far from the people of the U. S. generally as one mass possessing sovereignty, they are in fact unknown as a supreme, final and independent power in our system. In the House of Representatives in Congress they have under our complex system a certain influence in the business of legislation ; but here they act in conjunction with other powers, and are controllable by them. It is otherwise with the States. As separate and distinct existences, they framed the Constitution of the U. S. and they alone by a majority agreed to amongst themselves, are empowered to change or abolish it. They alone in the system, are supreme, absolute, un-contiollable and irresistible, and therefore they alone are sovereign.
    
    1 deduce from the above views, that the State of South Carolina was once a sovereign State ; that never having renounced her sovereignty, she is now sovereign, and that the allegiance of a citizen of S. Carolina, is due alone to her, If the oath in the Military Bill be the oath of exclusive allegiance the Ordinance prescribes, it would not conflict with the Constitution of the United States, because that Constitution imparted no sovereignty from Ihe States, and has vested none in any other powers. But the Bill does not require exclusivo allegiance, at least according to the views of those for whose control or exclusion it was intended. They maintain, however erroneously, that allegiance is due to the United States as well as to the Slate. The definition of allegiance in the Ordinance and the Oath it empowered the Legislature to enact, was intended to counteract this error ; and if the Bill was intended to carry the Ordinance into effect, like the Ordinance, the Oath ought to have required “ abjuring allegiance to any other power.” All doubt would then have been removed.
    We come now to the second great branch of this subject. If this Bill is not passed in pursuance of the Ordinance, it is merely a legislative provision. The question then is, has the Legislature of the State, by virtue of its general legislative power, a right to require the oath the Bill prescribes ?
    That the Legislature of the State has all legislative power, excepting where restricted by the Constitution, is not de'nied; but it is argued, 1st. That the Oath now in the Constitution of the State, and the Oath in the Bill, are the same, and the Oath in the Bill should be rejected as idle surplusage. 2d. That the Oath in the Bill and that in the Constitution are not the same, and that the Legislature is restricted by the Constitution from exacting any other Oath than that in the Constitution. We will consider-, these objections in their order.
    1st. The oath in the Constitution is, “ to maintain, protect and defend the Constitution of this State and of the United States.” The oath in the bill is strictly an oath of allegiance to the State. Are these oaths identical in meaning 1
    I have already endeavored to shew, that a constitution made by a sovereign is not the sovereign. If this position be correct, an oath to support the Constitution cannot be an oath of fidelity and allegiance to the sovereign. This obvious distinction has been observed in many of the Constitutions of the States, and by our immediate ancestors in our Revolution. The Constitution of 1776, Acts, 24, 156, exacted an oath of all officers, “ to protect defend and support the Constitution,” almost verbatim the oath in our present Constitution. Yet, that this was not an oath of allegiance, is obvious, from the fact that the State was then a Colony, and entitled, therefore, to no allegiance from the citizen. This very Constitution, whilst acknowledging this dependency, expresses that it is only provisional until a reconciliation can be effected with the mother country. This distinction between an oath of allegiance, and an oath to protect the Constitution,- is strongly marked in many of the Constitutions of the States. The oath in the Constitution of New Hampshire is, “ that I will bear faith and true allegiance to the State of New Hampshire, and will support the Constitution thereof.” In Georgia, the oath required of all Legislators by the Constitution, is, that “ I will bear true faith and allegiance to the same, and to the utmost of my power and ability, observe, conform to, support and defend the Constitution thereof.” Now, it is obvious, that if an oath to support the Constitution, and an oath of allegiance, was supposed to he the same, they would not have been distinguished and separately provided for by these Constitutions. In Maryland there is no oath to support the Constitution, but “ that I do not hold myself bound in allegiance to the King of Great Britain, and that I will be true, and faithful allegiance bear to the State of Maryland.”
    If the oatii thus prescribed by the Constitution is not an oath of allegiance, and is not identical with that in the Military Bill, we come to the second objection. Is the oath in the Bill in opposition to the Constitution 1 It will be admitted that all legislative powers are in the Legislature, excepting where they are taken away by the Constitution. The argument is that the oath in the Constitution is a prohibition by the Constitution of any other oath. The words of the Constitution, it might be supposed, would easily settle this question, for where it prohibits discretion in legislation to the Legislature, it is plainly and distinctly expressed. The words, however, in this instance, are not prohibitory. The Constitution merely requires that all persons who shall be chosen or appointed to any office of profit or trust, before entering on tho execution thereof, shall take the following oath, &c. There is an express requisition, that cannot bo dispensed with by the Legislature. This oath must be taken, but how does it prohibit the enactment of any other oath ? The Constitution requires a certain oath as a mean by which it will secure the fidelity of its officers. Surely this is no more a prohibition of any other oath, than it is a prohibition of any other measure which the Legislature may deem expedient to pass for the protection of the State. The Constitution of New York, (Art. 6,) like the Constitution of this State, requires that “ all officers, executive, &c. shall, before they enter on the duties of their respective offices, take and subscribe the following oath,” &e. But so conscious were the framers of this Constitution, that this language would not restrict the Legislature from passing any other oath, that they added in the last clause, “and no other oath, declaration or test, shall be required as a qualification for any office or public trust. According to the argument of the counsel for the appellants, this prohibition was nonsense, because the prohibition was contained in the previous clause; but it is clear that the Convention which framed this Constitution thought otherwise.
    If authorities are needed to settle so plain a question, they are abundantly at hand, in our own State, the States around us, and the legislation of Congress. First — to commence with our own State— by the Constitution of 1778, an oath acknowledging the sovereignty of the State, abjuring allegiance to the British Crown, and of supporting and defending the State, was required, and in the last clause of this Constitution it is ordained, “ that no part of it shall be changed, except after a notice of ninety days.” Yet, but eight days after, on the 28th of March, an oath of allegiance to the State, precisely similar to the oath required by this bill, was required by an act of the Legislature. Now it is plain that the Legislature did not suppose that they were altering the Constitution, or that they were conflicting with its provisions. It is vain, therefore, to urge that the Constitution was an acf of the Legislature, and changeable by the Legislature. Was the act of the 28th March, an alteration of the Constitution I It is plain that the men of that day did not think so. — . They were providing, in the ordinary power of legislation, an addi-iional guaranty for the support cf the State, perfectly consistent with those contained in the Constitution. When we come later down, the evidence of the construction of the Legislature thickens on us. Before the present Constitution, in 1790, we have the oath in the Act of 1782, for settling the qualifications of voters. Other oaths were required in 1778, of members of the Legislature, the Governor of the State, Chancellors and Justices of the Peace. All of these, except when they conflict with the Constitution, are of force by the 7th Art. of the present Constitution, which declares, that “all .laws in force in this State, at the passing of this Constitution, shall so continue until altered or repealed by the Legislature, except when they are temporary.” By this clause it may be doubted whether the oath of allegiance required by the Act of 1778, is not now of force. It is certain that it was so considered in 1799, long after the present Constitution was in force; for in the act providing for the admission of aliens tojhe privileges of denizens, it is expressly required, that they take the oath of allegiance to the State. If the oath of allegiance in this Act is obsolete, it has become so since that day. Later still, we have the oaths under the militia bill, and the Gambling act, cited by my friend. How are these authorities to be overcome, except by the supposition that the different Legislatures which passed them did not understand their powers ? Their constitutionality has never been questioned until now.
    If we turn to the other States, authorities to the same effect thicken on us. We will select but two, and those from the States of Maryland and Georgia.
    The 55 Sec. of the Constitution of Maryland is in the iollowing words: — “That every person appoir ted to any office of profit or trust, shall, before he enters on the execution thereof, take the following oath, to wit: — “ I, A. B. do swear that I do not hold myself bound in allegiance to the King of Great Britain, and that I will be faithful and bear allegiance to the State of Maryland.” The Militia Act of that State, passed in 1807, laws of Maryland, S v. 349, contains the following enactment: — “And be it further enacted, that no person shall be a commissioned officer in the Militia of this State, unless he shall he a citizen of the U. S. and each commissioned officer hereafter appointed, shall take the several oaths prescribed by the Constitution of this State, and also previous to their entering on the execution of the respective duties, take the following oath : — . “ I, A. B. do swear (or affirm, as-the case may be,) that I will be true and faithful to the State of Maryland, and that I will diligently and faithfully perform the several duties assigned to me by the militia of this State, according to the best of my skill and ability, so help me God.” By the Constitution of Georgia, every Legislator, before he takes his seat, must take a certain oath already alluded to, yet by the Act of 1818, Prince’s Digest, 364, it is enacted “ all officers, civil and military, in this State, shall take and subscribe the following oath, in addition to the oath heretofore prescribed: — “ I, A. B. do solemnly swear, in the presence of Almighty God, that 1 have net since the first day of January, 1819, been engaged in a duel, either directly or indirectly, either as principal or second, or in any other character whatever, in the State.” In the -State of Georgia, in addition to the oath in tho Constitution, there are forty-nine different oaths exacted of various officers, by the laws. In Vermont, thirty-one. In Massachusetts, thirty-nine ; and in all the States, many oaths in addition to the one required in their Constitutions.
    Let us now turn to the legislation of the Congress of the United States. Hero is a Legislature, not possessed of all legislative power, as the legislature of this State, but with limited powers, confined to ‘ those subjects delegated by the States, and those that are “ necessary and proper” to carry the powers expressly granted into effect. Like our State Constitution, the Constitution of the United States enacts an oath, in Art. 6, sec. 2. “ The Senators and Representatives before mentioned, and the members of the several State Legislatures, and all Executive and Judicial officers, both of the United States and of tho several States, shall be bound by oath or affirmation to support this Constitution.” Now, when we look into the laws of Congress, we are struck with the universal swearing required of all its officers. In every department, civil or military, an oath is invented to bind the consciences of those who administer the laws. The Secretary of State and his officers — the Treasurer and his officers — the whole Judiciary — the whole military on land or sea, have special oaths in addition to that required by the Constitution, for their guidance and control. Passing- by all others, we will come to those more immediately applicable to the case before us. In the act of 1802, “ fixing the military peace establishment of the United States,” 14 Sec. it is enacted that “ every officer, non-commissioned officer, musician and private, shall take and subscribe the following oath or affirmation: “ 1, A. B., do solemnly swear (or affirm as the case may be) that I will bear true faith, and allegiance to the United Slates of America, and that I will serve them honestly and faithfully against their enemies -or opposers, whomsoever, and that I will observe and obey the orders of the President of the United States, and the officers appointed over me, according to the rules and articles of war.” By the act of 1806, for establishing rules and articles for the government of the armies of the United States, the same oath, with but slight alterations, is required of every non-commissioned officer and soldier who shall enlist himself in the service of tho United States; and as tho Militia, when employed in tho service of the United States, are subject (olhe same rules and articles of war as the troops of the United States, (soe act. 1795,4 sec.) I suppose they, too, may be required to take these oaths. Now, witli those who believe, as the Counsel for the Appellants maintain, that any allcgi-, anee is due to the United States, it is impossible to have authority more analogous and conclusive. The Constitution of this State, and of the U. S. requires an oath to support the Constitution; and the Legislature, under both Constitutions, have passed acts requiring an Oath of Allegiance of those who serve them m a military capacity. Will my friends on the other side affirm, that these oaths required by Congress, are unconstitutional, on account of the oath prescribed in the Constitution 1 If not, with what consistency can they argue against the constitutionality of the act of our State Legislature. To one holding, as I do, that no sovereignty has been parted with by the States, and, therefore, that no Allegiance, in the proper signi-iicatkm of the term,- can be clue by a citizen of. the State, to the United States, the oaths in the acts of Congress are unconstitutional— foully unconstitutional: but the usurpation is, in requiring allegiance at all, not in passing another oath than that prescribed in the Constitution. The last authority I will quote upon this subject, I am sure is one that all those who are for extending the powers of the General Government, and degrading those of the States, will most profoundly respect. Chief Justice Marshall, (4th Wheaton, p. 416,) in discussing what laws Congress may constitutionally pass, as « necessary and proper” to carry into effect the powers expressly granted to the General Government — uses the following language. “ The powers vested in Congress may certainly be carried into execution without prescribing any oath of office. The power to exact this security for the faithful performance of duty, is not given, nor is it indispensably .necessary. The different department may be established — taxes may be imposed and collected ; armies and navies may be raised and maintained ; and money may be borrowed without requiring an oath of office. It might be argued with as much plausibility, as other incidental powers have been assailed, that the Convention was not unmindful of this subject. The oath which might be exacted, that of fidelity to the Constitution, is prescribed, and no other can be required ; yet he would be charged with insanity who should contend that the Legislature might not superadd to the oath directed by the Constitution, such other oath of office, as its wisdom might suggest.”
    I have confined myself, in the argument of this case, to the two great points, upon which, it appears to me, chiefly to turn. Many, incidental to them, have been raised in the course of the discussion; but they have been so elaborately noticed by my associate in the case, and are so intimately connected with those I have discussed, that I deem further argument upon them unnecessary. I trust that I have shewn, that the State has a right to the exclusive allegiance of her citizens, and whether the oath in the Military Bill is considered as passed by the authority of the Ordinance, or as a mere act of the Legislature, passed by the authority of its general legislative powers, it is equally constitutional.
    MR. PETTIGRU’S ARGUMENT.
    A case that has excited so deeply the attention of the community, will no doubt receive the most serious attention of the Court. To say that this is a constitutional question, is enough to make it understood that the subject is one of the highest concern and interest— for a question of constitutional law exceeds m importance the discussion of a private right, as much as a general rule is of more importance than a particular decision. And if there is any thing of which we may be justly proud, as an improvement in the science of Government, it is that American innovation by which the judiciary is made co-ordinate with the Legislature, and the injured are autho-rised to appeal from the Law to the Constitution. Nor can any case be imagined more worthy of the exercise of this high and solemn duty of the Judiciary, than this, in which the decision must affect, not merely the freedom of an individual, but the rights of many thousands of the people of this country to be accounted free ; in which not the inheritance of a few acres only, but the birthright and portion of every man who does not subscribe to the prevailing creed, are at stake.
    The parties to the record are Mr. M’Cready and Col. Hunt; and the office about which the dispute arises, is one of minor importance; an office, not only-of small account in itself, but in the eyes of the parties, perfectly insignificant, m comparison with the principles which are involved. Between the parties to the record there is, in fact, no dispute. Col. Hunt consents to make the question for the sake of all who have an interest in common with the plaintiff: and Mr- M’Crea-dy pursues his right in behalf of thousands of his fellow-citizens, for the purpose of testing the validity of a law which incapacitates them from office. This civil incapacity with which we are menaced, extends not merely to offices in the militia, but to all places of power and trust under the authority of the State ; and not to the right of holding office merely, but to every constitutional and civil privilege. For, by the Ordinance of 1833, the principle of disfranchisement is adopted in the broadest terms of tyranny: and though the disability in question, applies, in this instance, to military office only, there is nothing to prevent the extension of the principle to all civil rights and immunities whatever.
    The oath which Mr. M’Cready is required to take, is in the following terms:
    “ I swear that I will be faithful, and true allegiance bear to the State of South Carolina.”'
    And he refuses to take it, because ho acknowledges allegiance to the United States as well as to the State of South Carolina, and the authors of this oath, by their authoritative construction, have declared that allegiance to the State is, and shall be, equivalent to abjuration of allegiance to the United States. The terms of the oath itself may not suggest the objection. The text may be ambiguous, but the commentary removes all doubt. Behold then tho alternative to disfranchisement, which is submitted to the citizen — to subscribe to a party test, or to swallow an ambiguous oath.
    Allegiance is derived from the barbarous iatin word ligeantia — it is peculiar to the English law, and there we must look for its proper signification. Fortunately we are at no loss for the most ample information, concerning the character of allegiance, in the monarchy which is its native soil. In Calvin’s case, 7 Co. J, it forms the subject of one of the most curious and elaborate arguments among the judicial discussions of that period. Lt is called the bond of subjection between the Prince and his subject — the tie by which the monarch holds his vassal, and by which he draws him from the remotest corner to which he can retreat. — A chain which none but the royal hand can hold, and which the subject can never shake off. It is the same in effect with liege homage, an abject ceremony which furnishes a striking illustration of the feudal origin of allegiance, and the profound subjection which it implies. “ For when the tenant shall make homage to his Lord, he shall be ungirt and his head uncovered, and his Lord shall sit, and the tenant shall kneel before him on both his knees, and hold his hands jointly together between the hands of his Lord, and shall say thus: “ I become your man from this day forward of life and limb, and of earthly worship, and unto you shall be true and faithful.” And then the Lord so sitting shall kiss him.” In simple homage there is a reservation; as thus, “saving the faith I owe our sovereign Lord, the King.” But in liege homage, which differs only in this, that it is performed to none but the sovereign, there is no such saving. — (Co. Lit. 64, B. — 1 H. H. 65.) From Gal-vin’s case and the common law authorities, we learn that the qualifies of allegiance are, that it is natural, universal and perpetual, and due exclusively to the King in his natural person. So intimately is the original idea of allegiance connected with royalty, that it is said, hy Lord Coke, to belong to the King, as an attribute proprium quarto modo — that is, to the King, and to the King always, to every King, and none but the King; omni solo semper. — 7 Co. 12 A.
    In strict propriety of language, allegiance to the State, like citizen King, is nothing more than a misnomer. No phrase can be less apt to express the duty of a citizen, whose obedience belongs to the law, than a word which implies most strongly and emphatically reverence to the person of the sovereign. We can easily conceive why our ancestors excluded from the Constitution of the United States, as well as from that of South Carolina, a word connected with so many heterogeneous associations as allegiance. The wonder is, that the noble example of plain dealing and simplicity, which they have left us, should be lost on their successors; and that we should see, at the present day, such an anxiety on the part of some people, to put on the cast-off finery of the royal livery.
    There is no douit, however, that when terms which express the relation between King and subject, are adopted into laws of a Republic, they must be received in a new sense, with a modification of meaning corresponding to the altered character of the Government. And so, in fact, we find the term allegiance used in some of the States. Neither do we deny that the State may require an oath of allegiance from her citizens. At least there, is as much propriety in speaking of allegiance to the State, as of ¿llegiance to the United States. No one supposes that the Government of the United States is supreme beyond the sphere plainly defined by the Constitution ; neither does any one deny that the State is supreme within its proper sphere of action. As to the boundaries of power between the Federal authorities and the State Authorities, men have disputed from the dawn of the Constitution to the present day. And from the assumption of State’debts, in 1790, to the last debate on the incorporation of the Bank of the United States, the acts of the General Government have been assailed and defended on the same grounds ; and truth requires us to add that South Carolina has been on every side of the same question. But that the States, in the language of Mr. Madison, retain a residuary and inviolable sovereignty over all objects not embraced within the powers of the Federal Go-vcrnment, has never been denied, amidst all the changes and conten» {jong 0p party; at least not by any man, or set of men, considerable enough to obtain for their opinions any general attention.
    If the oath in question therefore, stood alone, or upon the words °f a military bill only, we should, without hesitation, construe the obligation which it imposes, as an oath of fidelity to the State, com-mensúrate with its reserved sovereignty, and consistent with an equal fidelity to the United States, within the sphere of the Constitution. But if the State authorities have set their own definition on this t0rm « allegiance,” we are not at liberty in the oath under consideration, to construe it any other way. — And no honest man can take the oath in any other sense, than that which it would bear, if this word were omitted, and the corresponding terms of the definition inserted in its place. Now the fact is, that the authors of this measure have set a definition on the word 1 allegiance,’ which makes it, to all intents and purposes, a term of art, to express certain controverted opinions concerning the nature of the Constitution of the United States, a,nd renders the oath in question a complete criterion of party — in in one word, a test'oath. There is, I apprehend, a mistake that some people are very liable to fall into, in speaking on this subject, by confounding test oaths with religious persecution; for many persons seem to imagine that the new oath is not a test oath, because it does not interfere with religious liberty. But, in fact, all test oaths are political, not religious, in their objects ; and if test acts do sometimes put the principle of exclusion on religious opinions, it is not against such opinions, as offensive to Heaven, but as dangerous to the State, that they are directed. In the age of persecution, a sincere but misguided zeal for the honor of God, led to the punishment of the heretic, whether he outwardly conformed or openly dissented.
    But test oaths were the growth of a later age ; they were not exacted pro salute animi; for the spiritual welfare of people in office ; but had their rise, as well as whatever justification was ever attempted of them, in considerations of public safety. The Union of church and State, and the King’s supremacy, sufficiently account for the connexion, real or supposed, between the security of the State and the exclusion from office of those whose religious 'opinions were at variance with the majority. The Dissenter and the Catholic were against the church, and the church was part of the State. It was in vain that they were willing to give any and every assurance of their fidelity to the State as distinguished from the church ; for their interests were inseparably connected, and the distinction could not be admitted, in like manner, the Union Party are willing to give any satisfaction of their devotion to the State within its constitutional sphere, but the difficulty lies in acknowledging an absolute supremacy , in subscribing to a declaration that Gov. Hayno is supreme head of the church upon earth.
    In Locke’s Works, we find an account of the test oath of 1785, by a masterly hand. It runs thus :
    “ I do declare that it is not lawful, under any pretence-whatever, to take up arms against the King ; and that I do abhor that traitorous position of taking arms against his person, or against those who are commissioned by him, in pursuance of such commission ; and I do swear that I will not at any time endeavor the alteration of the Government in church or state.”
    This oath would suit the present times without any alteration besides’ that of putting state for King : And the authors of our test oath only repeat what the courtiers of OharlesL the II said before them ; that the public safety requires the Oath ; and that no one should complain of being excluded by it; because no one is fit to be trusted, that is not willing to swear to truths so plain, and to principles so clear. Yet the verdict of posterity has stamped the age of Charles the II. with its lasting reprobation ; and those who, upon a small scale, are now making a similar use of power, may do well to bear in mind that they are copying an example from the worst of men, and the worst of times.
    In looking over the Ordinance of 1833, we find that allegiance to the State is expressly declared to be inconsistent with allegiance to the United States. The obedience due to the constitution of the United States is declared to be a subordinate duty, subject to the regulation of the Legislature, so that a citizen may actually incur punishment as a criminal for acting in obedience to the constitution of the United States ; and to crown the whole, ample provision is made, by an unlimited power of punishing offences against allegiance, for opening those detested sources of oppression, the laws against treason, and re-enacting here the bloody tragedies of Scroggs and Jeffries.
    It is not wonderful that a new Oath speaking a language unknown to our constitution, should excite inquiry. Men are not to be blamed for asking what it is they are required to swear to. But where shall they search for the meaning of allegiance as used in this Oath 1 Not in the common law, nor in the constitution, but in the ordinance of 1833 ; and there they will find allegiance explained in a sense which renders it the symbol of a party ; a sense in which it never was defined before, and which nothing but the necessity of having a conventional term to designate certain peculiar views of the constitution, could ever have suggested. Allegiance which is absolute without being perpetual, is a perfect anomaly. Yet the ordinance, while it makes allegiance to the State paramount to all other obligations, confines its existence to actual residence ; for I know not what else can be made of the words “ so long as they continue citizens thereof,” unless they mean that allegiance begins whenever any citizen of the United States enters Carolina, and ends when he crosses the line. And what can be made of those words that speak of “ obedience 'to any power to whom' a- control over the citizens of this State has been or may be delegated,” unless they mean that the laws of the United States are binding, until the State interposes and sets them aside ? In one word, allegiance as used in the ordinance is only another word for the right to nullify ; and that such is the real intent and meaning of it, no one having -a regard for his reputation out of his own set or party should venture to deny ; much less cam any one who values his character take this oath, unless his mind be clearly satisfied of the creed which it is intended to enforce.
    
      The ordinance having- thus established a party-test, and authoris-ed the Legislature to carry it into effect by suitable oaths, the next Legislature passed an Act to organize the Militia of this State ; the 10th section of which provides that every officer hereafter elected, before entering on the duties of his office shall take a certain oath. And in order to determine upon the validity of that oath, it is necessary to consider the subject in reference to the State constitution as well as to the Ordinance. Put the constitution has fixed the oath of office, and the Legislature have no right under the constitution to legislate on the subject. Their authority then must be derived from the ordinance, or the oath is void. The supporters of the bill are placed in this dilemma; that if the oath is passed in pursuance of the ordinance, it is a test oath — and if not passed in pursuance of the ordinance, it is unconstitutional. It is indifferent to us which alternative is adopted, for either way the Oath is bad — but the objection to the oath as being contrary to the constitution, is so palpable— from the express provision that a certain oath shall be taken by all officers as a constitutional qualification, the inference that no additional Oath can be inqiosed for the same purjiose, is so manifest— that I shall leave this part of the case without further comment— and proceed to consider whether this Oath'pan be maintained upon the ordinance. And we contend that it cannot.
    1. When an act may work two ways, the one by an interest, the other by an authority, and the act is indifferent, the law will refer it to the interest and not to the authority — Hobart 159 — the case of Commendams — Clere’s case, 6 Go. 17, Maundrell v. Maundrell, 10 Yes. 257 — Turner v, Bradford 3 Ru. 354. The rule is that if the power is not referred to, the subject must be clearly identified, or it will not pass by the power. But it does not clearly appear in this case that the Legislature intended to pursue the ordinance. The word allegiance is the only thing that can lead to a supposition that they had in view such an oath as the ordinance contemplates. But the nature of allegiance to the State is a controverted question, and it is on the face of the act ambiguous whether the legislature meant a partial or a paramount allegiance.
    The rules which prevail in relation to the execution of private powers, are intended for the safety of the citizen, for the sake of certainty and to prevent the danger of arbitrary judgment. How much more strongly do all those reasons lead to the conclusion that the act in this case should be referred to the Constitutional inherent right of the Legislature, and not to an extraneous and adventitious power I
    If it is necessary that men should be secure in their estates, and that the rule of property should be certain, how much more important that their rights and privileges should not be guessed and conjectured away 1 Respect for the Legislature should forbid us to suppose that they meant the words of this oath in a party sense ; for though test oaths have been the fruits of the worst of times, yet to impose a test, and to establish the principle of disfranchisement in this underhand and clandestine manner, would be a new and unexampled instance of political profligacy.
    
      But here it may be said that the Act must bo referred to the power contained in the ordinance, because it can taire effect in no other way. In answer to this objection it is sufficient to refer to the'opinion of his Honor, Judge Bay — he supports the Oath on the authority of the legislature under the constitution ; and "there is no reason to attribute to the members of the Legislature a higher degree of legal acumen. Is it not a thousand times better that an Act should be declared unconstitutional, than that the courts should placo upon it a construction and give it a meaning which the legislature did not intend ?
    (Harper, J. On this part of the case I would throw out to your consideration that the words of the constitution are affirmative, not negative — Sheriffs have been required to take an Oath to execute the Act against Gambling, and the constitutionality of such an oath has never been drawn into question.)
    When an instrument contains the complete sense of the parties, there is no difference between adding to it and taking away. All interpolations are equally forbidden, whether the words of the instrument be positive or negative. In fact, negative words aro unnecessary when the positive expressions are clear. An estate for life is the same whether the words “and no longer,” be added or not. The constitution says Sheriffs shall hold their offices 4 years — the Legislature could not extend the term to six.
    The oaths alluded to may perhaps be considered as incident to the duties of the office — duties which must bo discharged after the party is clothed with the office, and for the neglect of which he may bo punished. But if such oaths be considered as a qualification, and put on the same footing as the constitutional oath, they cannot be supported. A contrary construction would make the constitution- nugatory — and authorise a latitude in relation to it, which the law does not allow even in ordinary writings. So much does the law favour certainty in the construction of' compacts, that independent of the Statute of frauds, no addition can be made by parol to that which is in writing. We are obliged to compare great things with small, but the analogy is direct and obvious for the application of the same principle to the constitution, which is a deed of the most solemn nature, and which must regulate the whole subject — or all its provisions may be eluded.
    
    But perhaps it may be contended that if the legislature have power under the ordinance to impose an Oath of absolute allegiance, they may execute the power, by enacting an Oath of qualified allegiance. In all reasonings, ambiguity of language is a fruitful source of error — and the object of all discussions which aim at truth, is to strip off the veil of equivocal words, and to arrive at correct definitions of things.
    , There are different meanings attached to the words “ allegiance to the State,” but qualified allegiance is one thing, and absolute allegiance is another thing. And the ordinance does not authorize the Legislature to impose an Oath of qualified allegiance, for it denies that the allegiance of the citizen is, or of right can be, qualified. We acknowledge a qualified allegiance to the State,' but the ordinance does not call for an Oath affirming such alio* giance, but for an oath to put down the supposition of such a thing. It is no less than absurd to say that the power to do a particular thing, may be well executed, not only by doing a different thing, but by doing the very reverse. There is no distinction of more or less between things of different natures — and in the construction of private powers an authority to do a particular act could never be executed by doing something else. A license to sell gunpowder would be no license for saltpetre, nor a contract for any particular drug be complied with by the delivery of one of the simples of which it is compounded. The oath administered by the Legislature might even be less objectionable than one in the terms of the ordinance. But this could 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 States, and it is just as far from reason to call it the oath of the constitution as the oath of the Ordinance.
    But in fact, this oath is doubly objectionable, for the very cause that it is ambiguous. Is it to be endured, that a man is to be called on to swear to an ambiguous declaration ?
    Among all the abuses of power, a certain pre-eminence is due to the singular wickedness and enormity of the wretch who caused the laws to be promulgated in such a way as to be purposely unintelligible. And if there was no other objection against the' oath which our present rulers have prescribed to be taken by honorable men, under pain of disfranchisement, the ambiguity and equivocation which lurk in its meaning, are sufficient to entitle it to the condemnation of all mankind.
    In these circumstances the duty of the Court is plain. The free and generous principles of the law, which the Court is sworn to administer, favor Liberty. The warrant 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 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 preceding 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.
    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 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 could not delegate their authority over the Constitution (if they have it) to the Legislature. • A member of the Legislature cannot act by deputy-rfieither can the whole Legislature. The reason is obvious, the trust which is reposed in them is personal confidence. And the reason which prevails in every case applies in the. highest degree to the Convention collectively, which was invest, ed with the most important trust. These remarks are in strict conformity with the opinions of Judge Nott, in the case of Pinckney v, the City Council. 1 Tread. 49.
    It is repugnant to reason that the Convention should delegate its supremacy over the Constitution, to a body like the Legislature, which is subordinate to the Constitution. If they had abolished the 4th Article of the Constitution, and left it to the Legislature to act without restriction, the objection might not apply — but they left it to the Legislature to alter the Constitution, or not, in their discretion, which is against first principles.
    Again^-the power of the Convention itself .was limited to one year — and every tyro 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.
    3. We contend, in the third place, that in this particular the Convention exceeded the powers delegated to them by the people. The act which called the Convention was passed in the forms of the Constitution. The Convention was therefore a Constitutional body, and it is preposterous to speak of Constitutional power as unlimited.-— As long as the distribution of power between .the three-departments of Government exist, there can be, in fact, no such thing as absolute power. The only way in which a Convention can become absolute, is by usurpation — their power would then be unlimited in the same degree in which it is unlawful. But whatever they might have done, they did not, in fact, seize all power into their own hands — -and having met and deliberated under .the authority of the act which called them together, it is too late now to deny that they were limited by its provisions. But this question maybe settled with perfect certainty. If this Court should decide that the Convention exceeded their power, can any one doubt that the Ordinance becomes immediately a dead letter! Yet if the Convention was not unlimited, it is impossible to deny that the duty of defining allegiance, and devising 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 tho Ordinance in which t is found.
    Lastly. The Ordinance of March 1833, in this particular, at least, is repugnant to ¡.he Constitution of the United States.
    The Constitution, and the laws of the United States, made in pursuance thereof, are the supreme law of the 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 a man may have of a law, higher than a 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 legrantes sues debitum. 1 H. H. 58, Eos. 183.
    Unless a contradiction in terms as direct as an issue in fact, be required, no stronger or more palpable example of repugnance to the Constitution can be imagined, than the Ordinance affords, which declares that no allegiance is due to the United States. I shall merely call the attention of the Court to the decisions in the cases of Janson, Williams and the Charming Betsey, which I shall do by briefly referring to Kent’s Commentaries, vol. 2, pi 42. In fact, the Ordinance is not only repugnant to the Constitution, but in direct collision with it. I have no inclination, nor strength, to pursue the argument.
    In 1788, Mr. Madison warned the people of the inconsistency committed in the old Articles of Confederation, “of endeavouring to accomplish impossibilities, to reconcile a partial sovereignty in the Union, with complete sovereignty in the States ; to subvert a mathematical axiom, by taking away a part and letting the whole remain.” But the blindness that could overlook a mathematical truth, is nothing in comparison with the hallucination that goes back in 1834, to the Articles of the Confederation for the Constitution.
    NOTE. — The 4th Article was evidently designed as a barrier against all tests. It was by the Constitution of 1790 that they were first removed-. Even the Constitution of 1788 left the disabilities of Jews and Catholics in full force. The oath of office in the Constitution is entirely misplaced, if it sets no bounds to legislative power, which is clearly the end and aim of all Constitutional instruments.— But if the Legislature can annex new qualifications and new oaths to the conditions of office, this article of the Constitution is without meaning or utility.
    The Constitution requires every officer to bo sworn to support the Constitution of the State and the United States; the Act adds that he must be further sworn to bear true allegiance to the State. The last provision is neither more nor less than an amendment of the former, and if both be equally obligatory, the difference between an act and a constitution, in point of authority, is idle and delusive. Tho remarks of Mr. Leigh, on a similar occasion, are equally distinguished by truth and eloquence.
    “ Of the doubt as to the Constitutionality of this law (the Virginia Act, requiring an oath against duelling from officers) the more he pondered on it the deeper impression it made on his mind. Our Constitution (Art. 14) provides that certain officers shall have .fixed and adequate salaries, and together with all others holding lucrative offices, and all Ministers of the Gospel of every denomination, bo incapable of being elected members of either House of Privy Council.
    Now, these being the only Constitutional qualifications, the strong implication was that there should be no other. And there would be no doubting it, but for another provision of the Constitution— “ that delegates and senators shall be chosen of such-men as actually reside in, and are freeholders of the country, or duly qualified according to law” — as to which Mr. L. remarked, that these very words were plainly meant to fix a qualification; otherwise the whole passage had as well been omitted, and the subject left entirely to legislative discretion — whence the phrase fduly qualified according to law,’ must refer to some pre-existent or co-eval, not future laws, &c. But if the words of the Constitution were doubtful, its spirit could not be mistaken, if the Legislature might add one qualification, they might add many — multiply disabilities without end — disqualify whole districts or classes of men, by personal or local description — make an academical degree, or even a previous service in one of its own bodies, a necessary qualification, and thus convert the government into an oligarchy. If this tremendous 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 particularly were the first weapons young oppression would learn to handle — weapons the more odious, since, though barbed and poisoned, neither strength nor courage was requisite to wield them.
    Should we rely on public virtue-to keep us from the use and extension of this system of tests ? In no age nor clime, nor nation, had ever virtue wholly swayed the human bosom and actions ; man was universally liable to be transported with passion, blinded with folly, corrupted with vice, and yet more with power — maddened with faction, and fired with the lust of domination. Let us not flatter ourselves ; we were not exempt from the' common lot — and altho’ the wise exposition of the Bill of Rights by the act to establish religious freedom, might for'a time secure us from a religious test — a political one was certainly a possible, perhaps a probable, and not very remote event.
    I am possessed with a very strange delusion, if this very law in question does not appoint a ‘political test. Such are the beginnings. The end of all these things, is death ! A free Constitution cannot co-exist with this dangerous and paracidal power, in the hands of the ordinary Legislature. 1 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.
    MR. M’WILLIE’S ARGUMENT.
    In the consideration of this grave and important case, I will proceed, first, to discuss the question of Allegiance:
    I presume it will not be denied that this is the true issue between the two great parties, in this State. The nullification party believe that they owe allegiance to the State exclusively, — and the Union party believe that they owe allegiance to. the United States, as well as to the State. We all admit that we owe allegiance to the Ulule., and the difficulty with the relator, Mr. M’Crady, in the present instance, is that he believes that the oath proposed is an oath of abjuration of allegiance to the Jnited States. This is his objoction to it, and therefore he cannot take it — nor ought he — for, if there is such a thing as allegiance to the United States, it would be perjury if he did.
    1 will now proceed to shew, tl^at the citizens of South Carolina ¿0 owe anegiance to the United States :
    The greatest difficulty which presents itself to my mind, in relation to the proposition, is, that 1 am at a loss to find any thing more certainj by which to demonstrate it, — I may say, that it is a truism — * that in our National and State politics, it is an axiom. 1 might as well, under the full blaze of the meridian glories of a noon day sun, be asked for the proof that we were in the midst of light. None but the blind could ask the question, — and even they, perhaps, might feel the heat if they did not see the light. So, in relation to this matter, on all sides it presses with the irresistible certainty of truth, upon the mind, f see it in every Newspaper, Tract, and Pamphlet, published in the United States, up to the year 1832, from the declaration of independence. It is to be found in the archieves of our Federal and State legislation. It has received the sanction of Judicial tribunals of the country ; and it is declared in the Constitution of this State and of the United States. It is contained in the Constitution of the United States ; in the second Section of the first Art. 1 find there the fact stated, that the United States have citizens. The same is declared in the third section of the first Art.; and also, in the fifth clause of the first Sec. of the second Art.; there it is ordained, that no person,unless a citizen of the United States, shall be eligible to a seat in cither house of Congress, or to the Presidency. This would appear to be sufficient to satisfy the most sceptical, that the United States have citizens. But as I am in a Court, and the fact is denied,, I will offer testimony:
    Washington, the Adamses, Jefferson, Madison, Monroe, and Jackson, and every member who has ever taken his seat in Congress, have sworn to the fact, that they were citizens of the United States. For before entering on the duties of their respective offices, they were required to swear or affirm that they would support the Constitution of the United States.
    If they had not been citizens of the United States, by taking upon themselves those offices they would have violated that Constitution. They would have been perjured. I will now ask your Honors, if all these men were to be brought before a jury, impannelied to find the fact, whether or not they were citizens of the United States, could there be a question of the verdict ? Was there ever a case sustained by ñames so venerated — by testimony so ample ? No ! they were and are citizens of these United States — and I glory in the fact that I am their countryman — an amekicam citizen.
    It is with hesitation and reluctance that I argue this branch of the case. I am unwilling that others should know the hallucination with which our State is afflicted.
    If I have made out the fact, that the citizens of South Carolina are also citizens of the United States, I think it will be admitted that they owe allegiance : for I have never yet heard of, or imagin-«I that it was possible for any person to claim, the privilege of citizenship, of a country, to have the benefit of its laws and institutions, and not owe it allegiance. I will here be told, that it is not denied, (perhaps) that there are citizens ot the United States ; but that this results from the fact of citizenship of a State. To this, I would reply, by asking through, or by virtue of, what State citizenship are the inhabitants of the District of Columbia, or the Territories, citizens of the United States'? According to the present notions on the subject, they not being citizens of any State, are not citizens of the United States. I believe, and assert, that they are citizens of the United States — and thafthey may be so, though they never have been in any State.
    It has been held, by the supreme court of the United States, that treas'on may be committed against the United States by levying war upon a territory. Can treason be committed by any other persons than those who are citizens of a country ? What is treason, but the violation of allegiance ? None but citizens owe allegiance.
    Is this sufficient to shew that the United States have citizens 1— If it is not, I will refer to the general frame and character of our Government. I will ask, if it has not those powers which other governments possess over their citizens. It has the power of binding ns by its legislation, (within the pale of the Constitution) — It has the right to require our property and our blood, in its defence. Is this not the duty of citizens, and of citizens only ? and. is not the fact that the Government relies on our military services in time of war, for its preservation and defence — the strongest evidence that we owe it allegiance 1 — is not this the tie > of our fidelity 1 and the strong defence of our government 1 But, who ever heard of a government without citizens 1 The supposition is a monstrous ano-moly !
    I again find in the constitution, that we are citizens of, and owe allegiance to, the United States, and that even an oath of Allegiance or fidelity, is required by that instrument, (see the third clause of the 6th Art.) “ The Senators and Representatives, before mentioned, and the members of the several State legislatures, and all the 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.” Is not this an oath of fidelity to the Constitution — a Republican’s oath of allegiance 1
    
    I also find, in the third Sec. of the 3d Art., the following declaration, that we are citizens of, and owe allegiance' to, the United States : “ Treason against the United States shall consist only in levying war against them, or in adhering to their enemies — giv«" ing them aid and comfort.”
    Treason is the violation of our allegiance. It can only be committed by a citizen of the United States — a citizen of England or France, (not under the protection of our government, and thereby a temporary citizen) would laugh the court to scorn, that would attempt to try him on a charge of treason.
    It will appear by the 2nd clause of the 4th Art. ahd 2nd Sec., that treason may be committed against a State, as contradistinguished from treason against the United States. Could not a citizen of the District of Columbia, or a Territory, commit Treason 1
    
      There is further evidence of the fact, that we owe allegiance to the United States, to be found in the circumstance that the Supreme Court has held that the oath of allegiance required of the Naval and Military officers, and which is endorsed on the back of their commissions, is constitutional, and is but an oath to support the Constitution of the United States.
    1 might, if I thought proper, make an issue on this question, and have before the jury the benefit of Governor Hamilton’s testimony, (even though he was President of the Convention.) Pie, among many others of that body, has sworn allegiance to the United States.— They would be creditable, intelligent witnesses, and I would, before any unprejudiced jury in the world, obtain a verdict.
    I have said that the Constitution of this State has acknowledged our allegiance to the United States. I will now endeavor to prove it:
    In the 4th Article, which is in the following words — “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:” * 1 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, according 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 not this, in the republican language of our fathers, an oath of fidelity or allegiance, to the United States — an oath in exact accordance with the spirit and character of our institutions. Suppose this, instead of being an oath to preserve, protect, and defend the Constitution, had been an oath to preserve, protect and defend King Philip, would it not be to him an oath of allegiance ? Does the King of Prance or England, or even the Autocrat of Russia, ask a stronger oath of his subjects Í
    
    The term allegiance is expressive of the relations existing between a king and his vassal — and the framers our present constitutional oath, among whom were many of the sages and heroes of the revolution, shewed both their good sense and good taste, by rejecting it. They had just thrown off, at the time of its adoption, the royal power — and they rejected a term that was only applicable to its existence. Is it then, good sense, and republican simplicity, that we are losing, or is it their patriotism ?
    Can any oath be. framed, binding more strongly our fidelity to the State, than our present constitutional oath 1 To what can we be bound, that it does not bind us 1 Is the one proposed, a power above the law 1 Is it expressive of some new relation between the citizen and the State 1 If so, let it be defined.
    I do not know, nor never will acknowledge, any authority in this country above the law. The sovereign power is with the people— (or rather, for all practical purposes, in the governments they have established) — their, will is the law — and that will can only be expressed by law. — What power is there above this ? The reply of the gentlemen who are opposed to me, will be, ‘ The sovereign power.’— This may be, under the Emperor Nicholas — it can’t be, in South Carolina!
    I will be told, that sovereignty is a unit; and that allegiance is indivisible — and that allegiance is only due to sovereign power; and that the United States have no sovereignty — and consequently, no allegiance; And if I would consent to follow, I might be led through a labyrinth of metaphysical reasoning and disputation, as to the meaning of the terms allegiance and sovereignty, their unity and divisibility, worthy the casuistry of the best days of the Jesuits. But splitting hairs is a business that won’t pay,' and I am unwilling to embark in it'.
    I propose to take the matter as I find it.' - -That allegiance is due to the State we all agree — and that it is due to the United States, I flatter myself, is proved. That the State is sovereign to the extent of her reserved rights, we also agree ; and. that the United States have many of the attributes of sovereignty, is 'matter of knowledge. They have the power of the purse and the sword ; and treason may be committed against them — this is an offence against sovereignty, and sovereignty only.
    But can it be necessary to prove that the United States is, or are a sovereignty? Why, may it please your Honors, it is a matter as certain and notorious as the Declaration of Independence; every act perhaps ever passed by the Legislature of this State, since the 4th July, 1776, has concluded'“in the-year of the sovereignty and independence of the United States of America.” Look at those of the last Legislature, and you will see they are all dated in the 58th year of the sovereignty and independence of .the United States of America. Even the very act now the subject of. this controversy, is so dated. The records of your Court, and every formal will, or bond, or deed, or covenant, has the same recognition ; and five years ago, he that would have doubted on this subject, his friends would have had a writ of lunacy executed upon him.
    It was only in the year 1828, that the celebrated exposition and protest, (which I have heard aptly called the book of the gospel of nullification) was published to enlighten the people on the subject of their sovereignty. This was written by Mr. Calhoun, and printed by order of the Legislature, and paid for out of the people’s money ; and this recognizes in the highest terms the sovereignty of the Union, and the divisibility of sovereignty. This was the beginning of our metaphysical political philosophy — and 1 fear too much learning has made us mad.
    If you look into the Constitution of the United States, you will see that it is, from the beginning to the end, grant after grant, of the powers of the States; and you will see, beyond all question, that the States, (I mean the individual States) have created a power above them; I refer to the amending power — (see the 5th Art.) The Constitution of the United States may be' amended, three fourths of the States concurring, and that amendment will become the supreme law of South Carolina, even against her unanimous vote.— Could this occur, if she had never parted with any portion of her sovereignty ? No! The supposition is absurd.
    In the 4th sec. of the 4th Art. you will see that no State can establish any other than a republican form of Government. This is not the case with Prance or’England. They may vibrate from the extreme anarchy of revolution, to the military despotism of Napoleon ; 
      and there is no restraint. Why ? Because they have parted with no p0rtj0n 0f their sovereignty.
    I trust that I have said enough to satisfy the most sceptical, that allegiance is due to the United States as well as to the State. If so, * think the difficulty of proving the oath contained in the military bill unconstitutional, is much lessened; (and unless this is proved tho contest is at an end.)
    In the remainder of my remarks, 1 shall assume that we owe such allegiance — and proceed to shew that the oath contained in tho tenth section of the military bill is an oath of exclusive allegiance to tho State, and abjuration of all other allegiance. To do that it will be necessary to prove the meaning of the term allegiance, as used in the oath.
    We can’t look to the common law definition. That is, <* the natural and lawful obligation of obedience, on the part of the subject to his prince.” This is entirely inapplicable. Then, where else can we look, but to the history of the times, and the motives and policy and declarations of the law maker 1
    
    
      If we go to this source, it is impossible to doubt or hesitate. The genera] course of tho party enacting the law, and all their declarations even at the time of its enactment, were in favor of an exclusive allegiance.
    The highest authority for its meaning and sense, is, however, to be found in the Ordinance of March, 1833, which is in the following words—
    “ We do further ordain and declaro, that the allegiance of the citizens of this State, while they contine such, is duo to the said State ; and that obedience only, and not allegiance, is due by them to any other power or authority to whom a control over them has been, or may be delegated by the State; and that the General Assembly of the said State is hereby empowered, from 'time to time, when they may deem it proper, to provide for the administration to the citizens and officers of trhe State, or such of the said officers as they may think fit, of suitable oaths or affirmations,, binding them to the observance of such allegiance, and abjuring all other allegiance.”
    In the present instance I refer to the Ordinance, merely for the sense in which the Legislature used the term allegiance, in the military bill. And, I presume, none of us can have a doubt that it is such allegiance as is defined in said Ordinance — exclusive allegiance to the State; which is the same as abjuration of allegiance to the United States.
    Having thus established the sense in which the term allegiance is used in the oath contained in the military bill, and further, that we owe allegiance' to the United States, I will proceed to consider the first ground of appeal, which is as follows:
    That it is a violation of the Constitution of the State to require the appellant to’ take the oath contained in the military bill. — Because the 4th Art. of the Constitution declares, that all persons who shall be chosen or appointed to any office of profit or trust, before entering on the execution thereof, shall lake 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.” And that so much of the milita-' ry bill as goes to add to, or alter the foregoing oath, or to impose any other Oath of office, is, therefore, unconstitutional and void.
    I will do so, considering first, that it was passed, not in pursuance nor by authority of the Ordinance of March 1833, but as a general right of legislation, (and will hereafter consider whether or not it could be passed under the Ordinance, when I come to consider the second ground.)
    I will commence by asking, if the fact of the Constitution having fixed and provided an oath of office, is not conclusive against the Legislature’s interfering with the same subject. Do not the affirmative words, requiring the constitutional oath, imply the negative words, that no other shall be required! Is not the fact that the Constitution has occupied the ground, conclusive against the Legislature’s interfering with the same subject? For instance, the Constitution has fixed the qualification for a seat in the Legislature ; can the General Assembly interfere with the subject ? To add to the Constitution, is as much a change as to take from it.
    Further. — To be Constitutional, it is necessary it shall be consistent with the Constitution.
    Now, the great object of the Constitution of this State (and of every State) is to secure the liberty and prosperity of the people.— Has this oath such consistency ? No! — It, at one fell swoop, disfranchises nearly one half of the free citizens of South Carolina — for, if I have been correct in supposing this an oath of exclusive allegiance, can any man who believes he owes allegiance to the United States, take it? Is it not a test oath? Do you not see the fact, that a large portion of the people, for neither the honors nor emoluments of office, can be prevailed upon to take it ? Believing as they do, would it not be perjury if they did ? Does not this disseize them of their liberties and privileges, contrary to the second section of the ninth Article of the Constitution of this State ? which is as follows: “ No freeman of this State shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers, [the trial by Jury] or by the law of the land.”
    Now, may it please the Court, if my freehold, my land, had been taken by an act of the Legislature, and given to my neighbors, without the benefit of a trial by Jury, your Honors would have had no hesitation in setting aside the act, as unconstitutional and void.— You have done so again and again ; of this there is no doubt.
    Are not my liberties and privileges secured to me by precisely the same tenure? — Are they not more valuable ? Who would hesitate between his property and liberty ? Does not this act reduce the whole Union party to the condition of the hewers of wood and drawers of water? We can hold no offices — the practical consequence is, that we are deprived of the rights of suffrage — for those who would represent our opinions and feelings never can take the oath of office. Could our fathers, the champions of liberty, and framers of the present Constitution, ever have intended to leave a power so monstrous and tyrannical, in the hands of the ordinary Legislature — and that our liberties were to depend upon the popular humor of the day, or the toleration of faction i It is impossible! It is to suppose that in •their case, the experience of the revolution had been thrown away; ■that they neither knew or valued the guards of liberty !
    It is denied that this is a test oath. Is the fact so 1 Would it be a test oath to require every officer to swear to the constitutionality of the Bank of the United States 1 If so, this is the same. These are the two subjects on which we are most divided — allegiance and the Bank.
    The oath in the Constitution requires the officer to swear that he is constitutionally (not legally) qualified to bold the office to which he has been elected.
    Much reliance has been placed on the circumstance that in 1816 the Legislature passed a law, requiring of sheriffs to take an oath to enforce the gambling act. This was no more than prescribing a duty to the sheriffs — for if the Legislature had said ‘ it shall be the duty of the sheriff to enforce this act,’ it would have been all that it did do — since the constitutional oath swears him to discharge the duties of his office. This does no more.
    The Legislature has the right to regulate the civil duties and rights of the citizen — but his political relations are fixed by the Constitution of this State and the United States — and the General Assembly has no right to change them, unless by the amendment of one or the other of these Constitutions. I have authority for this view of the subject, in the bill passed by the last Legislature, to amend the Constitution on this very point, and in the very words of the oath in the military bill.
    The appellant in this case believes that he owes allegiance to the United States, (or, for all practical purposes, to the government they have established) and calls upon this Court to sustain his views.— You have sworn to do so — you have sworn to administer the law— and the Constitution of the United States has the following words— (see 6th Art; 2d sec.) — “ This Constitution and the laws of the United States, which shall be made in pursuance thereof, and all 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 of every State shall be bound thereby — any thing in the Constitution' or laws of any State to the contrary notwithstanding.”
    You, the Judges of the State, are bound by your oaths to give him his rights under the Constitution of the United States, as well as of the'State. And he believes that the proposed oath is directly in conflict with both these Constitutions.
    I am sustained in all that I have been saying against the right of the Legislature to require the present oath, by the authority of the ■Convention which passed the Ordinance of March, 1833. That Convention has conferred upon the Legislature the right to require such an oath — why grant the right or confer the power, if it before existed! It did the same in November 1832. This is conclusive as to the opinion of the Convention. I suppose the gentlemen opposed to me will respect that, as they are members of it, and believers in its infallibility and omnipotence.
    There is one other point of view, in which I will present this oath, and I will have done with it on the present ground.
    The 8th Article of the State Constitution has the following words: “ The free exercise and enjoyment of religious profession and wor* ship, without discrimination or preference, shall forever, hereafter, he allowed within this State, to all mankind: Provided, that the liberty of conscience thereby declared, shall not be so construed' as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the State.”
    Now, suppose the legislature were to pass an act declaring that the Methodist, or any other religion, was licentious, and was against the peace and safety of the State ; and were to require the Judges and Juries to take an oath to enforce that law, would they not prostrate freedom of religious opinions and violate the 6th Sec. of the 9th Art. of the Constitution of this State, which says that « The trial by Jury, as heretofore used in this State, shall be forever inviolably preserved” ? Thus, you may, by an oath, be deprived of the trial by jury, (because a jury sworn to find against you, is no jury) and all freedom of religious worship. Would this be consistent with the constitution of the State 1 You must answer NO !
    But I would ask, what has that case to distinguish it from the present 1 By that you would be deprived of your religious and civil rights — by the present, you are deprived of the semblance of freedom ; unless you not only believe, but swear,, as your masters bid you.
    What right has the legislature to swear me to any given set of political opinions, which it has not of religious 1 May it not as well swear you to the truth of the Catholic religion, as to the indivisibility of allegiance ? or to the infallibility of the Pope, as the supremacy of the State 2 Each is alike contradicted by reason and common sense ; and no honest man can accommodate his opinion or. conscience, to the powers that be ; men ever have, they ever will differ on controversial subjects.
    I will now proceed to consider the second ground of appeal, to wit : That the authority of the Legislature to enact the oath contained in the military bill, cannot be derived from the ordinance of March 1833.
    The first objection in this point of view is, that the authority of the ordinance is exceeded.
    The Ordinance only permits the oath of allegiance to extend to such time as you may continue a citizen of the State. The oath' in the military bill is general, binding you at all times and places. Their authority is not strictly pursued ; nor is the ordinance referred to.
    Another objection to this oath (as derived from the ordinance) is in the fact, that the Convention was called for a special, limited, and defined purpose, to wit: On reading the act calling that Convention, it will be found to have had no trust reposed in it, or power conferred on it, by the people of this State, but the adjustment of the tariff question. They could not go beyond their trust — the power conferred. Practically they were but the representatives of the people, and could not in good faith or law, transcend their authority — and if they did, it is the duty of the Court to protect the people against usurpation, and to guard the Constitution.
    I would ask the court, if it had ever heard at the time the Convention assembled, that a test oath was to be enacted — and proscription to be made the order of the day ? No. Xou never heard of it there, nor is it to be found in the act calling the Convention. South Carolina never has, and I trust in God, she never will, require the proscription of any portion of her children.
    A further objection to this oath, as referrable to the ordinance, is to be found in the fact that the Ordinance itself is clearly repugnant to the constitution of the U. S., and therefore, void, and of no effect,
    Is not this proposition 'unquestionably true, if what I have said on the question of allegiance be correct, and the constitution of the U, S. is the supreme law 1 [and 1 would feel that it was folly to argue with him that doubted on the question.]
    Were not the people of S. C., in Convention, as citizens of the U. S., and bound by the constitution thereof 1 Did not the advocates of the Convention say to the people, that their object was to preserve that constitution, and to perpetuate the Union ?
    If, as I have attempted to prove, this is an oath of abjuration of allegiance to the United States, it follows as a necessary deduction, that it is a .violation of that instrument. He who believes he owes allegiance exclusively to South Carolina, may differ with me, but none other. Even the people in Convention, while there as citizens of the United States, are bound by the Constitution ; and it is only when, in the language of the Declaration of Independence, they set about to abolish old and to establish new forms of government, that its obligation ceases — in other woxds, it is only when they become a revolutionary tribunal. The Convention did not assume this character, and therefore all its acts must conform to the Constitution of the United States — and you, the Judges, are bound by your oaths to require such conformity, or to declare them void ; and let me urge upon you to bear in mind, that mighty as the things are which it is said a Convention can do, it has not yet been proved that it can (as the Pope) grant absolution to a purjured conscience. The people have constituted you a co-ordinate department of their government, and have confided to you the sacred trust of guarding their persons, property and liberty : be faithful to that trust — be wakeful sentinels upon the watch-tower — sound the alarm that the Constitution is in danger, and the people — aye, the people, will come to the rescue. I have not yet consented to believe that the citizens of South Carolina will not defend their institutions, and protect their freedom.
    I will now hasten to a close. 1 have wearied my own strength (and perhaps your partience) — the subject, however, is of the last importance, and requires no apolongy for the time consumed. The end is worthy of our past and continued efforts. If they have been in vain, I have the proud conscientiousness that I have discharged my duty. If successful, I shall be mote, than rejoiced.-— Even if I have made you hesitate or doubt, I will feel that I have done much — for your doubts must operate in favor of the Constitution, Liberty and Peace. On doubtful grounds you cannot, you will not, permit the disfranchisement of so large a portion of your follow-citizens. You will not permit the imposition of an odious test oath — the worst and most universal enemy of human liberty. Judging from my own feelings, I am not permitted to doubt your course. If you sustain the oath, it must be on the most unquestionable constitutional grounds. You will not, you cannot violate the sacred principles of liberty, the unalienable rights of man, unless upon the sternest necessity. Can such' a necessity be found in our Constitution'! Is such the form and character of our government ? Was the Declaration of independence unnecessary and untrue 1 Was all the blood of the revolution but an idle waste of human life! and all the toil of sages and patriots but foolishness ? No ! 1 have heretofore believed, and still believe, that there, and even now, we are erecting a temple, sacred to liberty, whose foundations rest on the remotest borders of the Republic, whose walls have arisen, and are still rising strong and beautiful, and whose spires shall yet mingle with the Heavens — to which we will invite the oppressed of every name and nation. Is this but the decree of hope? Have I in vain thanked Heavon that the lines to me had fallen in pleasant places, and that I had the goodly heritage of liberty ? Shall these spires never rise? Shall these walls crumble and fall before their cement is dry ? and shall the descendants, even of the Hugenot,be driven from their once sacred precincts ?~ No ! This cannot be — you who are the guardians of its altars must, you will protect them from pollution. Shall they be stained by the sacrifice of all the dearest rights of the appellant, and of man? Isaac was once bound, and upon the altar. The sacrificial knife was raised — a merciful providence then came to the deliverance. That in the present case he may make you, his servants, instrumental to a similar result, is my prayer,
    MR. WILLIAMS’S ARGUMENT.
    The first question I propose to discuss is, whether the clause prescribing the oath in the military bill is a violation of the Constitution of the State. If I should succeed in shewing that it is, then there is an end of the question, unless the oath can be sustained in virtue of the Ordinance of March ’33. When we come to that question others will necessarily arise, which will then be considered — But I propose first to argue the question in reference entirely to our State Constitution, the same as if no Ordinance had been passed. By the 4th article of the constitution of this State, the oath of all officers is prescribed. It is not the mere substance of the oath, but the oath itself — the words are, “ 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.” Surely it will not be pretended that the word “ office”- means only civil office — should this construction be contended for, the answer is easily given by referring to the 21st section of the 1st article of the same instrument — there you have a constitutional exposition of what the framers of the constitution meant by the word office or officer. “ 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 any other power, except officers in the militia or navy of this State, justices of the peace, or justices of the county Court while they receive no salaries.” The very fact, that in the exceptions contained in this clause “ officers of the militia” are enumerated, proves that the word “ office” was understood by the framers of the constitution to include military as well as civil officers — otherwise the exception was totally useless ; and it will not be 'denied that among the safest and best rules for understanding an instrument is, not only to take the whole instrumnent, but in doing so to compare one part by the other, and thus to make the whole consistent. Let us now turn to the act of the Legislature prescribing the oath to which we object, and ask if it violates this constitutional oath. 1 admit it must be a violation of the Constitution. If it is only in accordance with the Constitution, then the oath must stand — and it will be the duty of this Court to sustain it — but if it violates the constitution, then it is void, and it will be the duty of this Court to declare it so. On this question there is no middle ground to occupy. The clause in the act prescribing the oath is either constitutional or it is not constitutional.
    It will not be denied that the constitution may be violated as effectually by leaving undone what is required to be done, as by doing what is forbidden to be done. The present constitutional oath is to preserve, protect and defend not only the constitution of this State, but of the United States. Should the Legislature pass a law requiring the officer to swear that he would preserve, protect and defend the constitution of the United Stales, and not require that he should preserve, protect and defend the constitution of this State, this surely would be against the constitution, and would therefore be void — so if the Legislature should pass a law requiring the officer to swear that he would preserve, protect and defend the constitution of this State, the United States, and of the State of North-Carolina, this last addition would be equally against the constitution, -and void. The reason is manifest. It would be an alteration of the constitutional oath, or of the oath prescribed in the constitution, by a simple act of legislation, when the constitution declares that “no part of this constitution shall be altered, unless a bill to alter the same shall have been read three times in the house of representatives, and three times in the Senate ; and agreed to by two thirds of both branches of the whole representation ; neither shall any alteration take place until the bill so agreed to be published three months previous to a new election for members to the House of Representatives ; and if the alteration proposed by the Legislature shall be agreed to in their first session by two thirds of their whole representation in both branches of the Legislature, after the same shall have been read three times on three several days in each house, then and not otherwise the same shall become a part of this constitution.”
    The clause in the act of the Legislature now under consideration is in the following words : “ In addition to the oaths now required by law, every officer of the militia hereafter to be elected, shall, before he enters upon the duties of his office, take and subscribe before some person authorised by law to administer an oath, the following oath :I, A. B. do swear (or affirm as the'case may be) that I will be faithful, and true Allegiance bear to the State of South Carolina— so help me God.”- Is this an additional oath to the constitutional oath 1 If this is disputed, surely we have the most conclusive proof that it is. The very clause itself furnishes the proof — the words aro “ In addition to the oaths now required by law” — It is either an additional oath or it is not an additional oath. The Legislature who passed the’ law, and those who deny that it is an additional oath, have taken issue on that point — I take none — for I agree with the Legislature, and say with them it isN an additional oath. It may be contended, however, that notwithstanding it is an additional oath, yet the constitution is not violated, inasmuch as the article in the constitution is not negative, but is affirmative only — that is, notwithstanding the constitution declares that all officers shall take the oath therein prescribed and set down, yet it does not say they shall not take any other oath. Let us try this rule of construction, and see if it bears its supporters out. I have before contended, and I think It will not be disputed, that the safest and best rule for understanding an instrument, is to take the whole instrument together, and compare its various parts, that each part may be consistent with the others. If this rule of construction will apply to one article because it is affirmative only, then it will apply to the other parts which are affirmative only ; for the same rule of construction should be applied to the same instrument throughput, in order that its true meaning should be understood, and its consistency preserved. Tho first article, and first section of the constitution, says, “ the legislative authority of (his State shall be vested in a general assembly, which shall consist of a Senate and House of Representatives” — this article is affirmative only — it does not say the legislative authority shall not be vested in any other body — will it therefore be pretended that the Legislature could say the J udge.s of the Appeal court should be added to this Senate and House of Representatives, and thus become a part of that body in exercising the legislative authority of the State 1 Would this not be such an addition to the legislative authority-of the State, as to be a clear and palpable violation of the-constitution ? Again, 2nd article and 3d section — “a Lieutenant Governor shall be chosen” ; this is affirmative only: it does not say more than one shall not be chosen — will it be pretended that the Legislature could pass a law saying there should be two Lieut. Governors ; one for the upper, and a second for the lower division of the State 1 In the amendments to our constitution, it says, “ every free white man of the age of 21 years, who has, been two years in the state and six months in the election district previous to the election, shall be entitled to iiis vote” — this chase is also affirmative oniy — w¡ji pretended that the Legislature could pass a law, saying that females or persons of color should be allowed a vote 1 Many other such clauses could be produced — but it is needless to multiply. We challenge the production of one clause which would authorize any other construction than the one we contend for — 1 shall how* ever produce one more on this subject, and that one is from the con-slitution of the United States. It relates to the oath of the Presi* dent of the United States — and is the only oath the form of which is prescribed in that instrument — article 2d, sec. 1st. p. 9. “ I do so-lemly swear (or affirm) that 1 will faithfully execute the office of President of the United States, and will to the best of my ability preserve, protect and defend the constitution of the United States.”
    This paragraph is .affirmative only — could Congress pass a law adding to this oath, and requiring the President to swear allegiance to Congress, or that he would not veto any bill except by the consent of the Vice President, or that he would be faithful, and true allegiance bear to the United States 1
    Gentlemen will not contend the latter, when they deny that airy allegiance is due to the United States — and yet the Constitution of the United States dees not say the President shall not be required La take any other oath. If this oath could thus he added to, it is manifest the rights and powers of the Executive department could be so trammelled as to defeat one of the great ends for which the office of President was established. The Constitution cannot be so construed, then, as to allow the Legislature to act on a matter already acted on by the Constitution, unless the subject matter is left incomplete by that instrument. An instance of this may be found in the Constitution of the United States. It is to be found in the 3d section of the 6th Article. “ The Senators and Representatives before mentioned, and 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 an oath or affirmation to support the Constitution.”' Here the form of the oath is not prescribed, and it' is therefore left to the different Legislatures to adopt such form as they may think proper, only requiring that the oath shall contain a declaration to support the Constitution of the United States.— And hence we find this incorporated into the Constitution of our State.
    What is the rule, then, for construing the Constitution, so as to como to a correct understanding of it 1 The true rule is laid down by Judge Nott, in the case of Cohen v. Hoff, 2 Trend. 657. At page 658, the Judge says — “ This Court will not lightly set aside an act of the Legislature — it is the highest exercise of judicial authority, and, therefore, will not bo used on trivial or doubtful questions. But whe^e such act is manifestly repugnant to the Constitution, it becomes a duty to declare it void. Our Legislature does not possess the political omnipotence ascribed to the British Parliament. It is circumscribed by the pale of the Constitution, and must be construed by it. A Constitution iff defined by an eminent Judge to be “ a form of Government delineated by the mighty hand of 'the people.” It is the supreme law of the land — it is the commission from which Legislatures derivé their power. — It prescribes their limits and sets their bounds. It says to them “ thither shalt thou go, and no farther.” A written Constitution constitutes the great difference between a free Government and a despotism_For, whether unlimited power is committed to the hands of one person, or of many, it is equally liable to be abused. Destroy our written Constitution, and the Legislature possesses the same omnipotent power, the same arbitrary and unlimited control over the people, as the British Parliament. Whenever, therefore an act of the Legislature comes in collision with the Constitution, the latter must prevail. At page 660, the Judge, in laying down the rule of construction, says, “ It is • said there are no negative words restricting the powers of the Legislature in this respect; but sometimes affirmative words necessarily imply a negative of what is not affirmed, as strongly as if expressed, and the Constitution must be understood in that sense. It is a form of Government established by the people, in which they have declared in what manner its different branches shall be organized, and the Legislature can introduce no other.” The doctrine here laid down, is where the affirmative is expressed, the negative is implied. It follows, where the Constitution prescribes a particular oath for all officers, although the clause is affirmative, it is necessarily implied that no other shall be added , and is therefore as binding on the Legislature as if it had been said “ the following oath,” and no other shall be taken.
    But it is said, the Legislature in 1816 passed an act against gaming ; that in that act they required sheriffs, clerks and constables to take an oath to enforce that statute — and this is referred to as an evidence that the legislature has the right to require the present oath of military officers, even though it is an additional oath. This argument cannot prevail, for many reasons. If the fact that a legislative body passes a law which has not been judicially objected to on the ground of its unconstitutionality be conclusive, then our mouths are effectually shut on the subject of the want of power in Congress to protect domestic manufactures, to carry on internal improvements, and to charter a bank. Neither could we say a word on the right of the General Government to extend its dominions by purchase, even to the ends of the earth. But I apprehend the passage of one unconstitutional act, never can be urged as an authority for passing another of the same character. This is the doctrine of usurpers and tyrants. The constitution remains the same, whether an act violates it or not. It would be enough however to say, that the act of the legislature of 1816, has never been under judicial investigation ; and the fact that the officers therein enumerated, having taken the oath without objecting, can weigh nothing ; and it is no more than begging the question to refer to the conduct of constables and sheriffs who are always office hunters, to establish the power of the legislature on a constitutional question. But another and perhaps a better answer can be given to this argument. The additional oath required of sheriffs and constables does not alter or chang'e the duty or obligation of the officer; nor does it change the nature or effect of his oath. The act against gaming requires these officers to “ enforce the law, when the offence occurs in their view” — as an inducement to what the law made their duty, they were required to swear that they would enforce the act. Would not their constitutional oath require them to enforce it? How could an officer be said to preserve, protect and defend the constitution of the State, but by doing what the law made it his express duty to do ? A law passed in conformity with the constitution, requiring.certain duties of officers is as obligatory on the officer as if the constitution required the duty. It is not only his oath which makes it his duty to enforce the law, but the law itself. The oath then required of sheriffs and of constables to enforce the statute against gaming, in this point of viow may we]j jje ga;l(j i0 jje jn ¿(i an(j gUpport of the constitution, and although the constitution requires no such additional oath for its aid and support, yet it is not a violation.
    But it. may be said, if. the additional oath now under consideration, comes in aid of the constitution, then the constitution is not violated : for how could a military officer bettor preserve, protect and defend the constitution of the State, than by being faithful to the State, and bearing true allegiance to the State? I consider this question as the vital one in this part of the case, and although I may fail to satisfy your Honors, for aught 1 can tell, yet I shall attempt to shew that there is a vast difference between the constitutional oath as it stands, and the oath as amended by the act now under consideration. The constitutional oath may be said to be an oath of allegiance — It is an oath of allegiance. But to what power is this allegiance due under the constitutional oath ? It is not due to the State, (keep that in mind,) nor yet to the Governor, nor the Judges, nor the Legislature ; but it is to the constitution or government of South Carolina, and the constitution or government of the United States jointly. To' say that an oath of allegiance to the State, is an oath to preserve, protect and defend the constitution of the State, would be to make the State the constitution, which would be nonsense. There is as much difference between an oath of allegiance to the State, and an oath to preserve, protect and defend the constitution of the State, as there is between the sovereign people and the constitution, which the sovereign people have adopted,— The constitutional oath is to preserve, protect and defend the constitution or “ form of Government,” which the people in their sovereign power have adopted. The oath of allegiance to the State is an oath of fidelity to the sovereign power that formed the government. Look at the 9th Article, 1st Section of our 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.” Here we have a constitutional declaration of the origin of power: that it is originally m the people; that it is on the authority of this power, that all free governments are established — and secondly, that these governments are established for the peace, safety and happiness of the people. The words “ originally vested” shews that the people may divest themselves of power, and until they do so, all is vested and resides in them. Have they not divested themselves of power in this government — I mean the government of South Carolina? Can the people now assemble either in mass or by delegates and pass laws? They cannot without overleaping the constitution of the State. What would become of the first article of the constitution ; which declares, “ that' the legislative power of the State, shall be vested in a general assembly, to consist of a Senate and House of Representatives V’ Here' the law making power of the State is given by the people to the general assembly. This power cannot now be exercised by the people while that article in the constitution stands unrepealed. Can the people now assemble either in mass or by delegates, and expound the laws, and thus decide on the rights of individuals 1 They cannot without overleaping the constitution of the State. What says the constitution1
    “ The judicial power shall be vested in such superior and inferior Courts of law and Equity, as the Legislature shall from time to- time direct and establish.”
    Here the legislature is authorized by the constitution to establish Courts of Law and Equity, and the constitution, which is the act of the people, vests m these courts the judicial power — so that the people having parted with this judicial power by the constitution, and vested it in the courts of law and equity, could not now exercise this power while this article in the constitution remains unrepealed. Again we might ask, can the people now assemble either in mass or by delegates, and execute the laws of the State 1 I answer they could not without overleaping the constitution. What says the constitution on this subject 1 “ The Executive power of the State shall be vested in a Governor.” If the people should now assemble, and pass laws, and expound the laws, and, then execute the laws would they not be violating these different clauses in the constitution 1 It does seem to me, that no one can be found so stupid as not to see that they would. Suffer me to demonstrate the doctrine I am contending for by putting a case. Suppose during the sitting of the late convention, one of their body had been murdered by some individual — would the convention then sitting have tried the murderer and put him to death 1 If the Court of General Sessions had been sitting, could not that tribunal have tried and put the murderer to death ? The truth is as the constitution declares; all power is oru ginally vested in the people — and as such “ all free go mrnments are founded on their authority.” When they met and formed their government, the power of administering the government they did not reserve to themselves — but transfered to their agents. These agents then exercise this power until they are-removed, or the grants under which they act are altered or repealed. The right to alter or abolish these grants of power, is what belongs to the people — and this is sovereign power — that is the highest power. The power to form a government, the power to alter a government and the power to abolish a government, is certainly the highest of sovereign power. This power resides in the people and no where else. I say and no where else : for let me ask where else can it reside 1 Is it in your Legislature 1 Is it in this court ? Is it in the Executive of the State ? It is a strange sovereign power residing in your Legislature, when your Honors have the power to review their acts and declare them void as against the constitution. Can it be in this Court 1 It would be a strange sovereign power, which the Legislature can regulate both as to the time and place of its sitting and transacting business, and control and direct in a thousand instances. Does it reside in the Governor 1 It would be a strange sovereign power, liable not only to be controlled by legislative and judicial acts, but which cannot move one inch without permission from the one or the other, and sometimes only by the consent of both. Can it reside in the Government ? It would be a strange sovereign power liable to be altered or abolished at pleasure. For surely no man can be found who would say the people have not the power to alter or abolish their government at pleasure, if then the sovereign power docs not reside in the Legislature, nor in this Court, nor in the Governor, nor yet in the Government, where else can it reside but in the people ? The answer is — ■ no where else.
    Having shewn, as I trust I have, that the people have not the power of administering the Government, becaüse by the constitution which is their act, they have given this power away, and having shewn also, that the sovereign power consists in forming, altering or abolishing a Government, does it not follow that the allegiance of the citizen is due to this sovereign power 1 . This I take to be the very argument of our opponents. They say that sovereignty resides in the States or people, which is the same— that sovereignty is a unit, and indivisible — that allegiance is due to sovereignty — therefore our allegiance is alone due to the State. Now, I am willing to grant that all this is true — and what does it prove ! It proves clearly the new obligations a citizen is brought under, by taking this oath of allegiance. It is to be true and faithful to the sovereign power of the State — that is, to be faithful and true allegiance bear to the power residing in the people which can alter or abolish this Government; If I am correct in defining sovereign power, and it is to that sovereign power that allegiance is due, and the obligation of the oath is to that power, then L cannot be mistaken in saying that this oath of allegiance is to the power that can alter or abolish the Government. Surely, if I am correct in this view, the oath, as prescribed by the clause now under consideration, will be found to be an additional oath to the one prescribed by the Constitution, in a very important particular.
    What is the constitutional oath! It is that you “ preserve, protect and defend the Constitution of this State and of the United States.” The additional oath is, if I be correct, that you will “ be faithful, and true allegiance bear to- the power residing in the people to alter or abolish the Government of South Carolina.”
    Let us now suppose a case to happen. Our opponents maintain the right of a State to secede from the Union — a majority of the State maintain that doctrine — a Convention is called for that purpose — a dissolution of the Union, so far as South Carhlina is concerned, is declared — the sovereign power resides in the people; that power consists in altering or abolishing the government — the delegates of the people are sitting — they abolish the Government of South Carolina — they have the right to do so. — By this sovereign power they go on to establish another Government — suppose it to be a monarchy — would not this oath of allegiance to that so-veregn power, bind the officer taking it, to submit to the govern-, ment thus established by the power to which he has sworn alie» giance ? Can any man say this additional oath, then, is in accordance with the Constitution of the State, and comes in aid of all its requirements! It is not denied, but that the people of South Carolina have a right to abolish their government, and if they have a right to secede from the Union, they would have the right to establish a monarchy or any other government they pleased.
    But does it follow from all this, that the Legislature possesses the right to require an oath from the citizen, binding him to submit to such a government? Does the constitutional oath bring the citizen under all these obligations? The constitutional oath is to preserve, protect and defend the Constitution of the State ; and no more, it is to preserve, protect and defend the form of government which the people, m their sovereign power, have adopted. The administration of that Government is nothing more than the exercise of the powers given by the people, to their officers or agents. Thus, are to be clearly seen, the additional obligations the person is under, who takes this additional oath of allegiance, over one who takes the constitutional oath. It is, therefore, in violation of the Constitution, being an attempt to alter it without observing the. forms prescribed by that instrument, for its alteration.
    As 1 consider this question .of vast importance in the final decision of the case before the Court, I beg leave to illustrate it by one or two supposed cases, and shew that the proposed oath is altogether different in i's obligations, from the one prescribed by the Constitution. Suppose the Constitution prescribed no oath; and suppose the only oath administered, was the proposed oath of allegiance — each officer of the State would be sworn to be faithful •and true allegiance bear to the State of South Carolina. Would that oath bind the officers to preserve, protect and defend the Constitution of this State and the United States ? Your oath would then be, to be faithful; to what? — to the Constitution ? — and true allegiance bear, to what ? — to the Constitution ? The answer is clearly, no ! ' But your fidelity and allegiance would be to the State. Is the Slate the Constitution? Can the words “ the State of South Carolina ” in the oath, by any rule, be construed to mean the Constitution? If, then, the constitutional oath had been in the words of the present oath of allegiance, would not an additional oath to preserve, protect, and defend the Constitution of this State and of the United States, have brought the citizen under an additional obligation ? an obligation to preserve that form of Government which the people had adopted ? And would not this have been an important alteration or addition ? It surely would.
    An oath "then of allegiance to the State of South Carolina, is not an oath to preserve, protect and defend the Constitution of the State, much less of the United States; nor is an oath to preserve, protect and defend the Constitution of this State and of the United States, an oath of allegiance to the State ; but the oath of allegiance is in the words of the clause now before the Court, “ an additional oath,” laying the party taking it, under a new and an additional legal and moral obligation from that of the constitutional oath. As such it is an important alteration of the oath now required by the Constitution, and void.
    
      
      Surely 1 am sustained further in this view, by the fact, that a bill ]lag pagged the same Legislature, and is now before the people for their consideration, and which this same Legislature call an altera. ti0n of the Constitution, and which amendment consists m the very oath contained in the clause now before the Court.
    But there is still another point of view in which this oath makes an important alteration in the constitutional oath; and this results from^tne sense in which the word “ allegiance” is to be understood in this State. It may finally turn out that the whole difference con-g¡sj.g jn a digpUte about words. We are told that “ allegiance is due to sovereignty — that sovereignty is a unit and indivisible ; and that this sovereignty is in the Slate.” If this be true, then allegi. anee is a unit and is indivisible. This doctrine is either true or false. If it be true, it answers our purpose — if it be false, it answers our purpose. If true, it clearly follows that ‘¿allegiance” is alone due to the State. Now it cannot be said that the constitutional oath is an oath of allegiance, in this sense of the word. If this be so, then the officer swears allegiance to the United States also, for the constitutional oath is as well to preserve, protect and defend the Constitution of the United States, as of the State. We have abundant proofs that the sense in which the word “ allegiance ” is -used by our opponents, is the one above attributed to them.
    In December 1832, we find the first proceedings of our Legislature on this subject. That body then passed the following resolution: « Resolved that the primary and paramount allegiance of the citizens of this State, native or adopted, is of right due to this State.”
    By the Ordinance of March 1833, it is declared, that “ allegiance is due to the State, and that obedience and not allegiance is due to the United States.” And in December 1833, when the very clause now before the Court, was under discussion in the Senate, an amendment was offered, “ Provided, nothing in the said oath should be so construed as to affect the allegiance due by the citizens of this State to the United States,” which was rejected. Will it be pret tended after all this, that the Legislature, in using the word “ allegiance,” did not mean a primary and paramount allegiance ?
    If, then, the doctrine as contended for by our opponents, be true, the oath binds the persons taking it to a primary and paramount allegiance to the State. And will it, under this construction of the word “ allegiance,” be contended that the additional oath is not one making a great and serious difference or change in our constitutional oath? But it might be asked as an answer to all this, do not the citizens of South Carolina owe allegiance to South Carolina? 1 answer, unquestionably they do — and that kind of allegiance, too, which would require the citizens to pour out their hearts’ blood, if the safety of the State, if the Government or even one single act of the Legislature, require it. Where then is the harm of swearing to it.— This question might be asked out of doors — in the streets, or on an electioneering tour — but not in this Court.
    The question here is, has the Legislature of the State, a right under our Constitution to require the officer to take the oath? It is a question of constitutional law — not of abstract principles. It is not whether the obligation of this oath would be in accordance with the natural obligation of the citizen — but, would it be so with the Constitution of the the State ? The doctrine I contend for, then, is, that the present constitutional oath is an oath to sustain the present Government, leaving the sovereign power which consists in forming-, altering or abolishing the Government untouched, in the people.
    The oath of allegiance goes farther, and binds the officer, in addition to his natural obligation, by oath, to the sovereign power. If 1 am correct in this view, then the present additional oath would be, in the highest degree, against liberty. It would be an oath to a power residing in the people — and which could be brought into exercise to do any thing- without the obligation to follow any fixed or settled rule — any sort of government might be established — any government might be formed — >it might be altered — it might be abolished — still the obligation of the oath is to submit to this power. Can this state of things bo tolerated in this country, wh'ere the people are free 1— Does this not show that allegiance to the sovereign power, in this sense of the word, should not be required in a free country í That to preserve, protect and defend the Constitution, is the highest obligation under' which the citizen should be brought, — That an oath to do this, would be the best of all possible oaths ; for this would require a faithful execution of every constitutional law, and a resistance of every unconstitutional law. So long- as this is the case, will we not be free — and so soon as we begin another rule, will not our liberty be in danger I
    I trust I have shewn the obligation of the constitutional oath ; and that the oath of allegiance is an additional obligation of a different character, which would be an alteration of the constitutional oath in an important particular, and is therefore void as against the Constitution.
    The second question is, can this additional oath be supported- under the Ordinance of 18331 The words of the Ordinance are “ we do further ordain and declare that the allegiance of the citizens of this State, while they continue such, is due to the said State; and that obedience only, and not allegiance, is due by them to any other power or authority, to whom a control over them has been or may be delegated by the State; and that the General Assembly of the said State is hereby empowered from time to timo, when they may deem it proper, to provide for the administration to the citizens and officers of the State, or such of the said officers as they may think fit, of suitable oaths or affirmation^, binding them to the observance of such allegiance, and abjuring ail other allegiance, and also to define what shall amount to a violation of their allegiance, and to provide the proper punishment for such violation.” It is said this is a part of the Constitution of South Carolina — and that authority is here given to the Legislature to pass the oath of allegiance contained in the clause now before the Court. I will not argue that part of the question arising in this case, which has been so fully and ably discussed already, shewing that where a special authority or power is delegated, it must be strictly pursued. The argument applies with force in the present instance. Here the power is to pass “suitable oaths, binding the citizens to such allegiance ” as that defined by the ordinance — which is alone due to the State. But this power goes on and says “ and ah-juring all oilier allegiance, so that the oath, to follow the Ordinance, must be first a paramount allegiance, and secondly, an “ abjuration of all other allegiance.” This is not even pretended, by any one, to be contained in the present oath. In this view, therefore, the oath cannot be supported under the Ordinance. But can the Ordinance itself be sustained ? Is it not in violation of the Constitution of the United States ? And does it not violate the sovereignty of the'United States ? 1 know it is asserted by our oponents, that the United States possess no sovereign powers. But if one State possesses sovereign powers, does it not follow that the twenty-four, all of whom possess equal powers, must also be sovereign 1 Only distinguish between the United States, and-the Government of the United States, and the difficulty vanishes at once. Sovereignty no more resides in the Government of the United States, than in the Government of the State. It resides in the States as- United. It does not reside in three-fourths of the States as supposed by some, but in the whole of the States. But three-fourths of the States can exercise the power which belongs to the whole ; and this is by compact between the States. The twenty-four states are united together by a league of friendship. They have concentrated their sovereignty — and in the exercise of this concentrated soveregnty they have formed a government. This Government only extends to the external relations of the States — and surely it will not be pretended that the sovereign power of the States was less exercised in forming a government for their external relations, than in forming a Government for their internal relations, when the only difference is, that in the latter case they acted separately, and in the former they acted jointly. If this view be correct, of which I think there can be no doubt, will it be pretended that allegiance is only due to the sovereign power forming a Government which relates only to the internal concerns of the State ?— Would not such an allegiance be contradictory and absurd, as being against a part of the sovereign power of the State 1 By what power was the Government of the United States formed, if it was not that pa.rt of sovereign power m each State to form a Government for the external relations of the State 1 Suppose the States had not united themselves together, but had remained separate and distinct States, would not the people of South Carolina have had the power, in their sovereign capacity, to extend their Government so as to embrace their external relations as a nation? And if an oath of-allegiance only applied to the power so far as to form a Government for the internal relations of the State, would such allegiance have extended to the external part of the Government? Would it not have been an allegiance to a part of the sovereign power, in exclusion of the other ? And would this not bo absurd and contradictory ? The force of this argument will be seen at once, when we remember that the Government of the United States is the Government of South Carolina, so far as the external relations of South Carolina are concerned. The same power which formed the Government of the States separately, formed the Government of the United States jointly — and although each State acted for herself in forming the General Government, it was nevertheless in virtue of sovereign power, and was as much an exercise of sovereign power, as when the State farmed her own Government separate from the other States. To this sovereign power then united, and forming a General Government, reaching only over the external relations of the States as united, the citizens of each State owe allegiance, as much so, as to the sovereign power which formed the State Government; for the State Government is hut a part of the Government of the State — and an abjuration of the allegiance spoken of in the Ordinance is void as being against the sovereignty of the States, which is indeed a part of the sovereignty of each State,
    I have always insisted that a State has the right to secede. This is my opinion — it is also the opinion of our opponents. There is a great difference between the right to secede and the consequences of secession — no matter what the consequences may be, this never can affect the right. The consequences may, and I hope always will be, a reason why the right should not be exercised — but this is all. The right to secede is founded on sovereign power — which embraces the right to abolish a government, .as well as to form or alter it. Will it. be pretended, that the States, assembled in Convention, could not abolish the Government of the United States 1 And could they not form another of a totally different character 1 And if they could abolish the Government, could they not dissolve the Convention without forming any Government at all, and thus leave the .States disunited, and for each one to pursue any course which the people of the State thought proper to adopt. I think all this will be admitted.— Now suppose a Convention of the States to assemble, tn amending the fundamentals of the General Government, they would be governed by the rules of amendment, as laid down and -agreed to by the States — but, in this they would not be acting under their sovereign powers, but under their league or compact. But if this Convention thought proper-to abolish the Government of the United States, would they be acting under the compact' or in virtue of their sovereign powers! If they act in virtue of their sovereign powers, then each State would be acting for herself, she would not be acting in virtue of any power derived from an assemblage of the States, but in virtue of her- sovereign power, and this power is her own, not derived from an assemblage of the States, and- exercised for herself. Why may she not exercise this power as well out of Convention as in it 1— But this high act of sovereign power has not been exercised by the people of South Carolina. — We are still in the Union, and for all the purposes of this argument, we are under the same moral and legal obligations as though the State had not the right to secede. We must therefore look at our Government as it is; and not as it might be. We insist, therefore, that the Ordinance itself which denies allegiance to any other power or authority but the State, is void, as being against the sovereignty of the Stales as united. But we are told that this Ordinance cannot be void — -that it is the act of the people in their highest sovereign character, and that it is “paramount to the Constitution and to all departments of the Government” — and that'your Honors have no power to pass upon it.
    Let us suppose a case. The Constitution of the United States says « no State shall ever make any thing but gold and silver coin, atender in payment of debts.” Suppose the late Convention m their unlimited powers, (for this is the doctrino,) had ordained that bills on'the Bank of the State of South Carolina, should be a lawful tender m the payment of debts. A. owes B. one hundred dollars— and under this Ordinance, A. tenders bills on this Bank in payment of this debt. B. refuses to accept the tender, and brings his action. A. pleads tender before the action brought — relying on the Ordinance. B. demurs, and relies on tho Constitution of the United States. By the second section of the sixth article in the Constitution of the United States, it is expressly declared — ‘“this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall he the suprema 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.” Your oath is to preserve, protect and defend the Constitution of the United- States, as the supreme law of the land. This supreme law declares nothing shall be atender but gold and silver coin. The Ordinance declares bank bills shall be a tender. How long would this Court be in deciding that tho Constitution of the United States must prevail over the Ordinance, so long as the State remains in the Union 1 But lot me remind your Honors of tho difficulty you would be laboring under, if you had taken an oath of'allegiance to the State. This oath would bind you to obey the sovereign power. Your constitutional oath is to preserve, protect and defend the Constitution of the United States. If then the sovereign power should be exercised, contrary to the Constitution of the United States, you would be under oath to execute two supreme laws, and they being directly opposed to each other — could you avoid the consequences of perjury, without resigning your commissions ? And yet this will be the situation of every officer who .takes tho oath now before the Court; If I should be correct in my exposition of it.
    But it seems to me, this Ordinance does not possess the high character which has been attributed to it. It is not the act of the people. It has not been submitted to them for ratification or confirmation. The members of the Convention who ordained it, were not under oath — and it is strange, to say the least of it, that the Honorable gentlemen composing the Convention, should be for binding tlie people of this country, by an oath of-allegiance, when they were not not under oath themselves, and their a cts were not even to be submitted to the people, for their assent or dissent. Who can say this was the act of the people 1 The Constitution says, “ all power was originally vested in the people, and that all Governments .are established by their authority.” But here it seems all power is vested in a body called by an act of tho Legislature, elected only by the people —acting* not upon oath — holding themselves above all law, and above all Constitutions, not amenable to the people, nor subject to their control, nor under their instruction, on this particular subject; but when assembled, they have all power, and can do as they please.
    I do trust in God, such another assembly will never be h'eard of, while this Government stands, if such be its powers. Whose head could they not have taken offl Whose estate could they not have confiscated 1 Whose blood could they not have corrupted 1 Is this liberty ? Is this the. freedom which our fathers shed their blood to obtain for us 1
    I hope I have succeeded in shewing, that the Government of the United States was formed by the sovereign power of the States as united, and that an oath of primary or paramount allegiance to the State, would be in opposition to the sovereign power. This sovereign power having adopted the Constitution of the United States, that which is opposed to this sovereign power, is also opposed to this Constitution, because this Constitution is the result of this power, or is the will of this power expressed.
    Here we might again repeat the argument, that the Government of the United States is the Government of South Carolina, on her external relations. As such the Constitution of the United States, is the Constitution of South Carolina, and our constitutional oath requires that both shall be preserved, protected and defended. And if allegiance is due to the sovereign power, producing one, allegiance must be due to the sovereign power producing the other. Yet the .Ordinance boldly asserts, “ no allegiance.is due to any power or authority but this State.”
    But there is still another view to be taken of this Ordinance, by which it will be seen to be void.
    Allegiance is due to the sovereign power. — Granted. But why is it that allegiance is due to this power? Is it because it is sovereign ? In England sovereignty resides in the King and parliament. Do I owe allegiance to that sovereign power ? The answer is no. Allegiance cannot be due then, merely because that the power is sovereign. But because the sovereign power protects the citizen. Where protection, is given, there allegiance is due. What is intended here by the word protection ? Does it mean security from outrages on my person, my family and estate ? If it means this, and this only, then every alien who enters the state owes allegiance to the state : for they receive this kind of protection. They are entitled to all the protection from the laws of the State which a citizen of the State is entitled to : and yet no one can be found who is not more than ignorant, who will pretend an alien owes allegiance to the State, because of this protection. The protection is of a higher character which demands our allegiance. It is the protection which the government receives from the sovereign power, securing civil and religious liberty to the citizen that demands allegiance. This protection is afforded sometimes against oppression from abroad, sometimes from insurrection and civil war at home. Whence do the citizens of South Carolina receive this protection ? From the sovereign power of the State, or from the sovereign power of the United States? If war should be declared by a foreign power agaist the Unitéd States, and the State of South Carolina should be the point of attack, with an intention to reduce her citizens to subjugation, and fix upon us another form of government, by which all our rights would be destroyed, where do we look for protection ? It is only to be had from the sovereign power of the-United States. B y the constitution of the United States, section 4th, article 4th, “ The United States shall guarantee to every State • in this Union a Republican form of government, and shall protect each of them against invasion, and on the application of the Executive (when the Legislature cannot be convened) against domestic violence.” — Thus the sovereign power of- the United States stands pledged to secure the government of the State of which I am a citizen, against invasion from abroad, and against domestic .violence at home ; and yet X am told I owe this sovereign power no allegiance, and am moreover required by the ordinance to swear it. This objection will be seen with more force perhaps by setting down such an oath as this ordinance demands; “ I do swear that I will be faithful and true allegiance bear to the State of South Carolina, that I will not bear allegiance to any .other power or authority, but hereby abjure all other allegiance except to this State, and I do furthermore swear that I. owe nothing more than obedience to the United States, and which is not allegiance, so help me God.” This is the substance of the ordinance of March ’33. And although citizens of other States have taken, and do take oaths of allegiance to those States, yet in no State is the oath expounded by an ordinance, and set down, to abjure allegiance to the United States, and swearing also, that nothing more than obedience is due to the United States. What is this, but calling- upon the people of South Carolina to swear to the truth of a particular political tenet 1 The citizen is required to swear that he does not “owe allegiance.” This is worse than requiring him to abjure allegiance. He may abjure allegiance without perjury — but to swear he does not owe, what he does owe, is perjury : because his swearing he does not owe it, is no proof that he does not. He may be in error — he may owe it. If the oath had been, he did not believe he owed allegiance ; his guilt in perjury would have depended on the fact of his belief — and if he was even wrong, yet believing it, he would be safe from perjury. Who would swear that the Christian religion was true? Millions would swear they believed it tobe true, and would seal their belief with their blood, but ns man who regarded the obligation of an oath, would swear to its truth.
    Here then you have an ordinance in this free land, requiring an officer to swear to the truth of a particular creed as a condition precedent to office. If a man did not believe this doctrine, he would not swear it without perjury, and yet this oath is to be required as a condition precedent to office. Can you imagine a more perfect despotism ? If this is not oppression, and against the true spirit of our constitution and the liberty of the people, I confess 1 cannot see what is. But we are told, if we cannot take the oath required of us by the sovereign power — by this convention — leave the State. Many of us were born and raised in the State, and our fathers before us ; our wives and our children were born and raised in the State ; the property we own, has been accumulated in the State; and what little character we may have, has been fixed in the State ; and more still; we are willing to shed our blood for the State — our hearts blood ; and shall we be driven from our native home, the home of our fathers, of our wives and children, and not be allowed even to complain : and will this be called liberty ? Our opponents will feel the force of this better by giving the scale another turn. Chancellor Job Johnson introduced this amendment, 90 members of the convention voted for it, of course they believe this doctrine to be true — that is to say, they believe they do not owe allegiance to the United States, that they owe nothing but obedience. Wow let us suppose that the Union party should get into power, should call a convention, and pass an ordinance, and should ordain, that not only obedience, but allegiance was due to the United States, and that all officers and citizens should bo required to take an oath to that effect before entering on the duties of their office ; could these 90 gentlemen take that oath 1 Could any citizen in the State lake the oath who believed as the 90 believed ? And the oath being a condition precedent to office, would they not feel that it was a disfranchisement of themselves 1 And would they feel themselves kindly treated, by being told, leave the State, or take the oath 1 It would be oppression and oppression of the strongest kind. But this oppression operates on the people also. The very case before the court is an illustration of it; the relator Col. McDaniel has been elected Col. of — Regiment, for Chester District. He is the choice of the people ; he is willing to serve in the office ; he does not believe this doctrine, therefore he cannot take this oath ; the people who have elected him do not believe this doctrine, and they would not have him to take this oath, for they would not take it themselves — yet the oath is required as a condition precedent to office, Mr. M‘Daniel must take it, or he cannot hold the office; he must .take the oath, or the people cannot have the Colonel of their choice. They cannot believe this doctrine, and because of this fact, their rights are taken from them ; they are degraded and debased, because they happen to differ on a political tenet with a majority of the State. Is this the genius of our government 1 Is this the spirit of liberty which is found in all our institutions from the highest down to the lowest among us 1
    Heretofore, our government lias been administered on principles securing to each party in the government, every privilege freemen could ask for. No test oaths have been adopted, requiring the citizen to surrender his particular opinions ; but whenever they have had office conferred on them by the people, they have been allowed to exercise the office without a surrender of their own particular opinions : it has been reserved to this day and time, for freemen to be required on oath, to change their opinions, or surrender the right of holding office when their fellow citizens have conferred it on them. It does seem to me, that look at the question as you may, and it will be found that our Constitutions are violated both in letter and spirit.
    Much more might be said on this question, but I must not forget that the question has been already .fully discussed, and it would be useless to repeat their arguments ; they are published, and are now before the court, and I have no doubt your Honors will review them before deciding the question. I shall therefore, leave the case with the court, feeling satisfied you will do your duty, regardless of every consequence which may follow.
    
      MR. BLANDING’S ARGUMENT.
    It is proper to state in opening my argument, that I am one of those who are ready at all times to enter into any obligation to support the State of South Carolina, which tho Legislature may rightfully command, or the people in Convention‘can require of me, consistently with the obligations which I am under to the United, States, and which were imposed upon me by this State, when she adopted the Federal Constitution. But 1 cannot, I will not take any oath, which this Court shall decide to be contrary to that Constitution. When tho Court shall have decided that the oath, required by the act of the 19th December, 1833, to provide for the military "organization ^of the State, is consistent with the Constitution of this State and of the United States, I am ready to take it. When that decision is made, 1 shall know my duties, and I am ready to swear to perform them.— Bnt so long as the import of the oath required is doubtful, (and I re-grot to say that the counsel for the oath have not attempted to clear up the doubts which rest upon it) I must rank myself among those, who fear to take the leap in 1he dark, and to swear to that which we do not understand.
    The act of the 19th December, 1833, declares that the oath of allegiance required by it, is “ in addition to the oaths required by law.” It is then something more than the oath of office, and the oath “ to preserve protect and defend the Constitution of this State,” required by that instrument. The refusal to take this Legislative oath, by tho express provision of the act of 1833, works a forfeiture of the office to whicli the person refusing has been elected. It goes further — the refusal disfranchises him, and renders him, forever after, inelligible to the same office; and it authorizes the commissioning officer to to fill the vacancy by appointment, and thereby to disfranchise all those who reside in that military section, and to deprive them of the right to elect their own officers; a right which is conceded to all tho other citizens of the látate. It may be said this last is but a temporary disfranchisement. But it is disfranchisement .still, and might be made perpetual by the same authority that has made it temporary. The question then arises, whether the Legislature had a right, under the Constitution of the Stale, to require an additional oath to that contained in the Constitution, and to make the taking of it a condition precedent to entering on office, and to declare the refusal to take it a disfranchisement of the person refusing, and of all his constituents 1— This is the first and leading question. But if the Court should decide that the Legislature possessed this power, then other questions of vast import will arise, viz: whether the Legislature do not derive that power under the Ordinance of the 18th March, 1833, by which the State Convention declared that our citizens owe exclusive allegiance to this State, and owe no allegiance to the United Stales, and if the power be so derived, then whether-that Ordinance is not repugnant to the Constitution of the United States, and void"! This last is the great contest in which, to use the language of Mr, M’Duifie in his “ One of the People,” “ the parties litigant ave the people of all the States ” on one side, and “ the rulers oí a particular State ” on the other. One contending that allegiance is due to the people of all the States, to the extent of the powers “delegated” to the United States, and the other contending that exclusive allegiance is due to the people of this Slate.
    
    It seems to be conceded, on all hands, that it is the duty of this Court to decide on the constitutionality of acts of the Legislature, when that question arises in a case before it — and 1 should have concluded that the concession was broad enough to include the power of the Court to declare an Ordinance of a State Convention void, which violates the Constitution of the United States. But from the grounds of appe.al, just presented by the solicitor of the middle circuit (Mr. Player) I now learn that it will be contended that this Court possesses no such power. The argument, as I understand it, is this: The State Judiciary is but the creature of the people of the State, while the Ordinance of the Convention must-be regarded as the act of the people themselves, and that it is absurd to allow the creature to destroy the work of the creator. This is the whole strength of the argument; and its fallacy consists in regarding the State of South Carolina as entirely independent of the General Government, and not bound by the Constitution of the United States, as the supreme law of the land. If that be - the case, it is true that the Ordinance of the State Convention must control all the governmental powers of the State, and the Judiciary cannot declare its Ordinance void as unconstitutional; because the Ordinance itself must then be regarded as a part of the Constitution. But the question must be decided on a view of the matter under an entirely different aspect. South Carolina is still in the Union and is bound by the Constitution of the United States, which she has voluntarily adopted; and if tho Ordinance violates that Constitution, it is void, and must be declared to be so by the State Judiciary, whenever a case comes properly before them, involving that question. By the 2d sec. of the 6th Art. of the Constitution of the United States, it is declared that “ that Constitution shall be the supreme law of the land, and that all the Judges in every State shall be bound thereby, any thing in the Constitution or laws of any Slate to the contrary notwithstanding.” And by the third section of the same article, it is declared that “ all Judicial officers, both of the United States and of the several Slates, shall be bound by oath to support the Constitution of the United States.”— If a question then arises within the acknowledged jurisdiction of this Court, in which it is found that the State Constitution and the Constitution of the United States impose contradictory obligations, which must prevail ? Which are your Honors bound to declare shall be void 1 Can there be a doubt that you are bound by oath to declare the Constitution of the United States the supreme law, and that the State Constitution conflicting with it is void'? Those who deny this cannot be met in argument. They are beyond the influence of reason. But it may be said, that the Ordinance of the State Convention is not a part of the State Constitution, and therefore is not within the terms of the 2d section of the 6th Article of the Constitution of the United States. Those who make this objection, Should toll us what the Ordinance is, if it be not a law of the Slate or a part its Constitution.- Should it bo urged that this case is not within the acknowledged jurisdiction of the Court, I can only reply, that all the counsel for the oath have admitted the jurisdiction of the'Court over the subject matter. It is conceded on all hands; and if it wore not, it cannot be denied, that a military officer refusing to deliver to año-ther a commission to which he is legally entitled,' may be compelled by this Court to deliver it. The subject matter is then within the jurisdiction, and in deciding on it, if a question necessarily arises, whether a State law or State Constitution, or the Constitution of the United States shall prevail, this Court must d'ecide it, and are sworn to declare the latter the supreme law of the land.
    If therefore m the investigation of this case, it would appear to your Honors, that the requisitions ot the military organization act of .December, 1833, requiring the oath in question, is contrary to the Constitution of this State, or if it should be found to be consistent with the ordinance of the 18th March,1833, but that ordinance should he found to be inconsistent with the Constitution of the United States, your Honors have power, nay. more, it is your bounden duty, imposed under the obligations of an oath, to declare the requisition of that act of the Legislature void, and to order the commission to issue, although the officer demanding it has refused to comply with that unconstitutional requisition. -While I thus contend for the powers of the Court, I admit that they should be exercised with .great caution and with the most profound deliberation and consideration of the whole matter. But I cannot agree with Judge Waties, in the case of Byan v. Stewart, which has been relied on by the Attorney General, “that the validity of the, law ought not to be questioned, unless it is so obviously repugnant to the Constitution, that when pointed out by the Judges, all men of sense and reflection may perceive the repugnance,” This would render the power of the Court of no use, when most wanted. In times of high party excitement, the majority are most likely to transcend constitutional authority. It is then that “ men of sense and reflection ” always divide in opinion, and to expect a concurrence is preposterous. Are not men of sense and reflection now divided in this very matter 1 . And to say to the Judges, you should look to them to recognize the repugnance between the law and the Constitution, would be to abrogate the powers of the Court, which have been conferred expressly with the view of protecting the minority against the oppressions of the majority. For any other purpose, the rule is of no real use. It would in reality be limiting the powers of the Court to cases of inadvertent or hasty legislation, in violation of the Constitution, which legislators being men of “ sense and reflection,” and under no party excitement, and perceiving, as the rule of Judge Waties supposes the repugnance, would, of themselves correct; thus leaving the violations of the Constitution produced by high party excitement, by vindictive passions or by real oppression, without a remedy. The worst form of the disease would thus bb withdrawn from the physician. The true rule, I take to be, that so long as the law is susceptible of several constructions, and one of them by reasonable exposition may be found to consist with the Constitution, that construction shall prevail and the law be declared valid. But that when under the obligation of the oath to preserve the Constitution according to their own “ sense and reflection,” .the Judges shall have feaiiessly met the question, and without looking abroad to the jarring opinions of conflicting parties (however “ sensible and reflecting ” they may be on ordinary occasions) shall have come to the settled conclusion, that the law is repugnant to the Constitution, they are bound (nor can they avoid the duty without perjury) to pronounce the law null and void. It is to this fearless course of the Court, that the country now looks. You must settle the all-absorbing question, and you will meet it regardless of the views or opinions of any party. It is for that purpose, that you are placed above the storm that rages around the foot of that eminence, to which the Constitution has elevated you. Feeling none of the influences which have divided our community into angry conflict, you must calmly pronounce -the decree. — You must say to the jarring elements “ be still,” and they will be still. Yes, whatever your decision may be, all must obey it. It is this part of our system which distinguished it from all others. It is the right of appeal from force to reason;— the power to put down oppression without the sword, and to give to the oppressed protection from' the oppressor, without staining the field of conflict with blood.
    Under these considerations I approach these question with a solemn conviction, that the oath required by, the military organization act cannot be sustained. In presenting my views, I do not appear before the Court in the character of an advocate ; I stand before you as an American citizen, as a citizen of South Carolina, to vindicate the cause of the State and of the United States, feeling that on the issue of this great judicial conflict, the question is to be settled, whether I am longer to bear the pround title of an American citizen ; whether the stripes and the stars that wave over me for protection, are the ensigns of a mere league or the standard of a sovereign people.
    
    In presenting my views, I am bound by considerations of the most solemn character, by the oath “ to preserve, protect and defend, the Constitution of this State and of the United States,” which I have often taken, when the kindness of my fellow citizens has called me to office, to meet the question with perfect fairness — I must preservé both, as far as lies in my power, nor take one tittle from one'to add to the other. I cannot, I dare not present a consideration or urge an argument, that does not find in my breast the stamp and impress of truth. Where I doubt, I must be silent, but where my mind is perfectly convinced, 1 shall speak fearlessly as becomes a free man, bound to support the Constitution of his country, regardless of personal consequences.
    The first question regularly presenting itself, is what is the meaning of the oath “ to be faithful and true allegiance bear to the State of South Carolina V’ and then follow the .questions, whether that oath is imposed by a power having authority to impose it and is consistent with the Constitution of the United States or a violation of it.
    1st. Does it mean nothing more than the constitutional oath we have all taken “ to preserve protect and defend the Constitution of this State 1”
    
      2nd. Does it mean the sanction by oath of some tie between the citizen and the State not inconsistent with all his duties to the United States, buf which tie is not secured by the oath “ to preserve, protect and defend the Constitution of this State 1
    3rd. Or does it mean the sanction by oath of allegiance to the State as exclusive sovereign denying all allegiance to the United States 1
    
    If it has the first moaning, and is identical with the oath prescribed by the State Constitution, I should have no scruples of conscience in voluntarily taking it. Although I should deny the power of the Legislature to require it and to make it a condition precedent to taking office, and to annex to the refusal disfranchisement. If it has the second meaning, I deny the power of the Legislature to exact it. If it has the third meaning, I pronounce it a violation of the Constitution of the United Slates; holding that to the extent of the powers, which are delegated to the United States, the people thereof are sovereign, and to that extent we owe them allegiance, and that to the extent of the powers reserved to the States, the people of South Carolina are sovereign, and that to that extent we owe them allegiance.
    I shall proceed to enquire what is the meaning of the oath, on the supposition that it is not enacted by the Legislature in pursuance of the ordinance of 18th March, 1833; and in doing this I am to suppose, that that ordinance was never passed, or what' amounts to the same thing, that the Convention had no authority to pass it; which I shall here take for granted only for the purpose of the argument, considering it unnecessary to agitate that question at all. Is the oath in the Military act identical with the Constitutional oath ? I think it cannot be affirmed to be so. The act declares it to be an oath in addition to that; and this necessarily implies that it is something more. Besides knowing as I do, the men who urged this oath with so much pertinacity, that they are intelligent and honorable, I cannot bring myself to believe, that intending to add nothing to the constitutional oath, they used terms varying from it, with no view to impose any additioal obligation, but for the purpose of creating a doubt as to its meaning, so that their political opponent could not conscientiously take it, and thereby to prevent them from holding any office in the militia, and to work their disfranchisement. This is the only motive, that can be suggested, if the oaths are intended to be identical — a motive so impure cannot be imputed by this court to any legislative body, to a co-ordinate branch of the government.— It imports a design of folly or wickedness, the imputation of which cannot be made against honorable men and cannot be sustained by any rational rule of construction in a Court of justice — It is then clear, that whether we regard the terms of the act itself, declaring it an additional obligation, or the motives of the Legislature that passed it, the military oath cannot be regarded as identical with the constitutional oath. ■
    But when we look into the history of the State and examine the acts and resolutions of its Legislature," and the Ordinance, reports and addresses of its State Convention, we can be at no loss as to the meaning of the oath — and it is to them we must look. The word allegiance is of feudal origin and its meaning here cannot be ascertained by looking to a state of things and principles of Government entirely different from any that exist with us. We must look to our own code for a definition of the term. Now prior to the adoption of the Federal Government which ' went into operation on the 4th March, 1788, the term allegiance had a definite meaning, whenever used by the legislature of this State afier'it became independent. It meant the tie, which bound each individual citizen to the State, and obedience to its absolute supremacy as an independent sovereign community. As soon as the Constitution of the United States was adopted, the term allegiance was no longer used in this State by its Convention or Legislatures, till revived in the ordinance of 1833 and in the act under consideration. When the State Constitution of 1790 was framed by the State Convention, the term was not employed, but instead of it, the oath “ to preserve, protect and defend the Constitution of this State and of the United States” was required. This would seem to cover all our duties.; it was precisely commensurate with all our obligations to both communities. About 1828, a new theory was advanced and the position taken, that the State was exclusively sovereign. As loi^g as this was but the declaration of individuals, it could have no authority as a rule of construction. But when it received the sanction of the legislative and conventional authority of the State in its resolutions, reports, addresses, acts and ordinances, its character was changed, and these various acts of authority did then furnish a rule of construction, and the only rule, by which the meaning of the Legislature could be ascertained, when in Dec. 1833, they passed the act in question. From Dec. 1830 to the passing of this act, every Legislature had distinctly asserted, that each State has the right to decide for itself, what powers are conferred on the Government of the United States, and if in its opinion that government has exceeded its powers, to declare the act void and resist its execution within the State. The Legislature of 1831 (page 59) passed a joint resolution in which it declares « This is a confederacy of sovereign States, and each may withdraw from the federacy whenever it chooses ; such proceeding would neither be treason nor insurrection nor a violation of any portion of the Constitution.” “ It is a right, which is inherent in a sovereign State and has not been delegated by the States of this Union.” In pursuance of these doctrines the Legislature called the Convention of 1832. The report of that Convention asserts the same doctrine and declares that “ South Carolina claims to be a Sovereign State — she recognizes no tribunal upon earth, to be above her authority.” The Ordinance of that Convention of 24th Nov. 1832, gives effect to this declaration and also asserts the right of secession from the Union. In the address to. the people, the Convention asserts the right of the State to combine all the resources of the community in opposition to the act of Congress nullified. ■ The Ordinance gives the Legislature the power to organise those resources for that object, and in' Dec. following, the Legislature did organize those resources. After these acts and declarations of the Legislature and Convention, what was intended by the new oath “ to be faithful and true allegiance bear to the State of South, Carolina” cannot Be doubted. It means that we, who take it, acknowledge on oath, that South Carolina is absolutely sovereign, that her decisions by Convention are not subject to the control of any earthly tribunal, which decision she may enforce by all her resources, and that she has an absolute right to nullify any law of Congress, and secede from the Union at any time, for causes to be decided for herself. There can be no other meaning given to the oath — these are the rights she claims as a sovereign, and the duties oí her citizens are claimed as co-extensive with them, and she requires them to be secured by the oath of fidelity and allegiance contained in the military organization act.
    Now suppose all this to be true, (which I however deny) had the Legislature without the ordinance of 18th March, 1833 a right to impose such an oath 1 I say without the authority of the Ordinance, for I am arguing this part of the case upon the supposition that the Convention had no authority to pass that ordinance. In another part of my argument I shall discuss the question, on the supposition that the Convention had such authority. The competency of the Legislature to require such an oath is denied, even supposing the theory of our Government is rightly stated in the various reports, resolutions, acts and ordinances recited. I think I need to go into no elaborate argument to shew the clear distinction between an oath of office requiring the person, who takes the office, to bind himself to, or qualify himself for, the faithful performance of its duties, and that oath which establishes the relation between the citizen and the Sovereign. The imposition of the first may be within the competency of the Legislature ; the other is clearly an act of Sovereignty. If relations between the citizen and sovereign are to receive new sanctions, if new qualifications for holding office are to be required, or new disabilities to take office are to be created, the act is one of sovereign and not of legislative authority. Let me illustrate this matter. The moment Government is established and offices are created, every citizen according to our system of equality, has an equal right to fill the offices thus created — but the Sovereign power that creates the Government, has a perfect right to add whatever condition it please to the exercise of this.right — But if that power annexes no condition, the State of equality exists, and the Legislature cannot destroy it; but this supposes that the condition annexed by the Legislature may be performed by some and cannot bo performed by others. If the condition superadded by the Legislature can be performed by all,-then the equality is not destroyed, and another rule must be adopted which I shall hereafter mention. Let me illustrate the principle by resorting to examples; suppose the Legislature were to declare that no man should be a Major General who is not six feet high. Would any one doubt that such act is void and that a General of five feet might take and hold the office in spite of the Legislative usurpation 1 Why have not the Legislature a right to say this i Because it destroys that equality of rights, which is a fundamental principle of all free institutions, and which no power short of the people themselves can destroy. It seems clear then, that the Legislature cannot make a physical impossibility a disability to hold office, for if such impossibility be peculiar to some and not to others, it destroys equality of rights, and if it be common to all, it in effect abolishes the office by rendering every one incompetent to fill it. Can the Legislature make a thing morally impossible to some and not to all a disability to hold office 1 1 think not. Suppose a legislature should require as a condition precedent to taking office, that our citizens should swear that they believe there is no moral obligation to obey the supreme law of the land, or that he is under no moral necessity to perform his contracts. Now it is morally impossible that some should take.^uch an oath. Would'such a disability imposed by the Legislature be constitutional. 1 think I may answer no. The result then is, that whatever is physically or morally impossible for some men to do, cannot be made by the -Legislature, a condition precedent to taking office, because it destroys that equality of rights, which can be destroyed but by the people acting in their sovereign capacity. It cannot be denied, that he who swears allegiance to the State, acknowledges on oath that he owes that allegiance to the extent of the meaning of the term. If the allegiance is intended to be exclusive, the person taking the oath swears to his belief that ho owes exclusive allegiance to the State. So when the Convention authorized the Legislature to require an oath from all officers to support the ordinance of Nullification and an oath from the Judge and Jiuy before they proceeded to trial, to decide that the law of Congress annulled was unconstitutional, and that the ordinance of Nullification was valid; who ever took one of.the oaths, swore to his belief that the duty required of him existed. Now it is certain that the citizen, who conscientiously believes that these doctrines are false, is under the moral necessity to refuse to take the oath. If his refusal works a forfeiture and a disability to be again elected to the same office, there can be no doubt that this is adding a disability, which the Constitution of 1790 did not provide, and destroys the equality of rights, over .which the Legislature has no control. It is equally clear, that this disability arises from a moral impossibility in one citizen to take an oath, which another citizen can take; and that thus the Legislature disfranchises one man, while it leaves all the rights of the other entire. Can these distinctions be created by the Legislature 1 If this right exists, every majority however tyrannical, however oppressive, may perpetuate its power, and deprive its opponents of the possibility of repealing the odious and tyrannical oppression, by excluding them by test oaths from ever being elected to the Legislature, or from holding any office under the State Government. They may control the decisions of the Court — excluding from the bench all who will not swear to their political dogmas thus émbodied in a test oath. It will be at once seen, that in this way a majority in the Legislature may aggregate to themselves all power by holding an unlimited control over all departments ofthe Government, and make that control perpetual, even after they have ceased to be a majority. It is one of the ways, by which power is usurped, and the most odious of all aristocracies created ,sthat which under the semblance of a democracy, vests irrevocably all power in a few leaders.
    L present another view of this matter. That an affirmation in particular cases implies a negative in all others, is a rule of construction universally received as admitting of ho exception'. Thus in our State Constitution, where the third article declares, that “ the Judicial power shall be vested in such superior arid inferior Courts of law and Equity as the Legislature shall direct,” this affirmative grant negatives the power of. the Legislature to vest judicial authority in the Senate, House of Representatives, or Governor, or any other body, but a Court with Judges appointed according to the Constitution.— Again the negation in particular cases implies an affirmation in all others. Thus our State Constitution declares that “ no person shall be eligible to a seat in the House of Representatives, unless he is twenty-one years of age. This is a negative restriction on the right of the citizen, and implies an affirmation that every one over that age is elligible to such a seat. And this implied affirmative right cannot be taken away by the Legislature; unless it can be shewn, that the Legislature may constitutionally declare, that no man over a certain age shall be elligible to such seat; and I think no one will contend that the Legislature can do so. The result of the whole matter is — • if you can perform all that is required by the Constitution to entitle you to office,-the Legislature cannot require you to perform more.— Now let us test the present oath by those principles. When the Convention of 1790 framed the State Constitution, they could not have been ignorant, that there were a variety of opinions in relation to the theory of our system of Government. The parties of federalist and anti-federalist already existed; and new divisions of party— new theories of our Government — new readings of the Constitution might well have been, and no doubt, were expected to spring up.— It would have been strange indeed, if in a Government where the freedom of the press and of speech was secured, there would not be an almost endless variety of doctrines broached by the various parties, who would be struggling for power. With these reasonable anticipations, what did the Convention of the State do % They required by the Constitution they framed, an oath as a condition precedent to taking office, that the party had the requisite qualifications according to the Constitution, (not according to any law the Legislature might enact) to fill the office, that he would perform the duties of it, and preserve, protect and defend the Constitution of the State and of the United States, if he neglected or refused to take these oaths, he was disqualified to hold the office. This was a plain intelligible oath. Did the Convention intend that the Legislature should create any other disability, by imposing some further oath! What would have bqen the consequence of permitting the Legislature to exercise such a power I Why the majority might claim the right to frame some oath founded on a party'doctrine, which they believed, and the minority disbelieved, which they could conscientiously swear to, and the minority could not swear to, without committing moral perjury, and thus disfranchise all their political opponents. I want no better illustration of the matter, than the oath under consideration. The majority can take it, because they believe the State is absolutely and exclusively sovereign, because they believe sovereignty is indivisible, and to reside alone in the State ; but the minority cannot take it, because they believe that sovereignty is divided and that a part is deposited in the United States, and a part in the State, and that therefore they owe allegiance to both. Are they, for this honest belief to be entirely disfranchised 1 Did the Convention intend that for this cause, the 
      Legislature should have the power to disfranchise them 1 I say disfranchise them, for if this oath may be required of militia officers, it may be required of all officers — it may be required of voters, and the right of the minority to hold any office, or even to vote may be taken away. Let us look at the consequences of this doctrine. Who would be disfranchised if the doctrine of “One of the People,” that “ the great conservative principle which lies at the foundation of all our political institutions, is the responsibility of the officers of the General Government, not to the State authorities, but to the people of all the States” — or, if the declaration in the same work, that “ the General Government is as truly the government, of the whole people, as a State Government is of part of the people,” were now embodied in a test oath 1 or who would be disfranchised, if we were now to frame the oath on the doctrine of General Hamilton, who, in presenting “One of the People” to the public, in 1820, declared — “ To these views the triumvirate added the tocsin of Slate sovereignty, a note which had been sounded in the ancient dominion, with such an ill-omened blast, but with no variety by them, to relieve its dull and vexatious dissonance.” Whom would it disfranchise now, if the sworn belief in the doctrine of Mr. M’Duffie was made the test of qualification for office, when, in “One of the People,”•ho says. — “If after the national judiciary have solemnly affirmed the constitutionality of a law, it is still to be resisted by the State rulers, the Constitution is literally at an end; a revolution of the Government is already accomplished, and anarchy waves his horrid sceptre over the broken altars of this happy Union,” or when he says, “ as far as I can collect any distinct proposition from the medley of unconnected quotations you (the trio) have made on these important subjects, I understand you to affirm that in expounding' the federal Constitution, we should be tied down to the strict letter of that instrument, and that the General Government was not made the final and exclusive judge of the extent of the powers delegated to itself) but that, as in all other cases of compact among parties having no common judge, each parly has a right to judge for itself. 1 confess l am at a loss to know how such a proposition ought to be treated — no climax of political heresies can be imagined, in which this might not fairly claim the most prominent place. It resolves the Government at once into the elements of physical force and introduces us directly into a scene of anarchy and blood. There'is not a single power delegated to the general government, which it would not he in the power of every State Government to destroy, under the authority of this licentious principle. It would be only necessary for a Stale Legislature to pass' a laxo forbidding that which the Federal Legislature enjoins, or enjoining what the Federal Legislature forbids, and the work is accomplished. Perhaps you would require the State Judiciary to pronounce the Stale law constitutional.”— How such a proposition should be treated we have now learnt. The whole doctrine of the trio thus reprobated by Mr. M’Duffie, has been embodied in our Ordinance and laws, our State Judiciary has been required to swear before they proceed to judgment to pronounce the State law constitutional, forbidding what the Federal Legislature enjoins, and we are now called on to swear allegiance to the State as exclusive sovereign, to enable her to command the whole recourses of the State in giving effect to this “licentious principle” of the trio,, “ This climax of political heresies.” I blame no man for changing his opinions, and I am bound in charity to believe these changos are the result of honest conviction. But it will be perceived at once, that if the political dogmas of one day may be embodied in test oaths —at another day, when honest changes of opinion have taken place, even the authors of the test may become its victims. Had « One of the People” prevailed in 1820 and made his doctrines the test, 1 should now bo competent to take office and he be excluded. It hap. pened, however, that in December, 1833, the doctrine of the “ Trio,” prevailed, and the author oí “One of the People ” is competent to take office, and 1 am excluded.
    I hope I shall not be thought to have revived these doctrines for party considerations. I present thorn as the most apt illustrations of the doctrines 1 am contending for, and as likely to be most forcibly-felt by those who oppose me. 1 again ask, who would now be disfranchised, if the doctrine of the exposition and protest of 1828, had been embodied in a test oath, and every man, before taking office, was now required to swear to his belief in the truth of the declaration there set forth 1 That exposition declares, “the committee entertains no doubt, that the present disordered state of our political system originated in the diversity of interests in the several sections of the country. This very diversity the Constitution recognizes, and to it owes one of its most distinguished features : the division of the sovereign power (not powers) between the State and General Government.” (See Exposition, page 25, reported by Col. J. Gregg to the House of Representatives, 19th December, 1829.) The very authors of that exposition, who now hold that sovereign power is not divisible, much less divided between the State and the United States, would now be incapable of taking office, if the sanction by oath of the truth of their then doctrines, were required of them as a condition precedent to entering on the duties of it. If that were now the law, I .should hear my friends of the State Rights party exclaiming with utter indignation, “ what! require me to swear to what I do not believe, to perjure myself or be disfranchised! My friends have changed their opinions — they were right in doing so, because they found themselves in error as they believe, honestly believe. But I think they were right. How awkward their position ! I can take the oath which in 1828 I suppose them to have required, because my opinions have not changed. But they cannot take it, for theirs have changed, and unless they could repeal the supposed law, they would be disfranchised by their own acts. Let us look a little into the future; and in doing so, it is fair to presume, that that may happen again, which has so recently happened. It is, therefore possible that the State Rights party, or some of them at least, may change their present opinions. Their late conversion has been too sudden and universal to gain the belief, that all have been convinced of their error on full examination for themselves. Some must be converted on faith, and honestly believe, that sovereignty is indivisible, because men, in whoso integrity and wisdom they have confidence, believe so. They may, then, be under a very natural delusion, and where will they find themselves under this act, when that delusion is dispelled? Why in a degraded caste, among men who may be turned, into the ranks of our militia, but under no circumstances can hold a commission in it. These commissions must belong to those who honestly retain to their present faith, or falsely swear they do; but not to those who may honestly adopt another. It seems to me this view of the matter clearly proves that every oath required by. the Legislature as a' condition precedent to taking office, not sanctioned by an express provision of the Constitution, whatever may be its form, is a po-itical test oath, and may assume the most dangerous and oppressive character, — and the one now attempted to be enforced, I think, is clearly of that character.
    The oath required by the State Constitution is in these terms, “ I swear that I am qualified according to the Constitution of this State, to exercise the office to which I have been appointed.”— I am not bound to swear that I am qualified according to any lato the Legislature may pass. If I can satisfy the terms of the Constitution as to my qualifications for office,' who, under this article, shall say that I am disqualified by law, and shall not enter on the execution thereof?
    I did not expect to be met by authorities and adjudged cases by my opponents, they seem to set all authorities at defiance. If adjudged cases — if settled constructions of the Constitution, by all the departments of the Government, by all the States in the Union, by themselves, down to 1828, were to have any influence in the argument, this case would be already decided against the new assumption of power by our State authorities. But I must not follow the example set me. I must examine their cases with due respect. The case from Cranch is relied on where Chief Justice MakshaXi decided, that an act of Congress requiring an oath of allegiance to the United States, to be taken by the federal army, was constitutional. Although this case is an unfortunate one for the Ordinance of 1833, since'it proves that something more than obedience is due to the United States, still it has been dragged into this discussion to shew, that where the Constitution requires no oath of allegiance m express terms, the Legislature may impose one. ’ This is answered by observing that the Constitution of the United States does not prescribe the form of the oath, and that in our State Constitution the. very form of the oath is prescribed. The Constitution of the United States merely declares, that the executive and judicial officers of the United States and of the several States shall be “bound by oath to swppert this Constitution.” The form of the oath it leaves to Congress, and the several States to prescribe. In prescribing that form in this State, our Convention required it to be taken in these words, “preserve, protect and defend the Constitution of the United States.” The word “support ” is here not used, although it is the only term used in the Constitution of the United States. Yet ours has always been held to be a compliance with that Constitution, and acted upon as such.for forty-four years; and for this obvious reason, that the form not being prescribed, any words expressing the same obligation, without adding to or changing it, is a compliance with the requisition to support the Constitution. Congress, however, used other words and required an oath of allegiance to the United States, as identical with the obligation to support the Constitution of the United States. The case then simply proves that Congress and Chief Justice Marshall, believing that the whole sovereignty of the United States was derived from the Constitution of it, held that the oath to support that Constitution and the bath of allegiance imported the same thing, and were identical ; and that Congress having power over the form, might adopt one or the other at pleasure. But how different is the case here — the State Constitution has prescribed the form in express terms. The Legislature have no control over it. They can no more change its form than its substance, much less change its meaning, or add another oath to it, which has been done in the military organization bill. On this subject the Legislature have left nothing in doubt, they have declared their oath to be an additional one — and I think I have shewn, that they did not intend it to be identical with the constitutional oath.
    The acts of our own Legislature are referred to as warranting the power exercised by the Legislature of 1833. We must distinguish between those acts, which were passed prior to the adoption of our State Constitution of 1790, and those passed since. All prior Con-stititutions in this State were mere Legislative acts, and any clause of them might be repealed by the same power, that exacted them.— Whatever oaths of allegiance, therefore, may have been exacted before 1790 do not prove, that where there is a constitutional oath prescribed by the people themselves, it is subject to legislative enlargement — and unless it proves this the argument goes for nothing. Besides the oaths of allegiance and abjuration required during the revolution, were revolutionary measures, exacted by the legislative body, at the time that that bady, from necessity, had to represent the people in their revolutionary capacity. In fact the distinction between the exercise of sovereign and governmental powers was hardly known at that time. It has been developed and established since the peace of 1783, and now forms the great characteristic feature of the American systems of Government, The absolute control of the people over Constitutions, and of Constitutions over Governments is so well established as to admit of no exception, and to defy controversy. But the oath required to he taken by Justices of the Peace, &c. by the act of 1816, is subject to a different construction. That is a mero oath of office. The act prescribes a new duty in exacting an oath to perform it. In terms it is but a repetition of the constitutional oath of office. It was wholly unnecessary, being identical with the oath required by the Constitution, neither repugnant nor in addition to it.
    We are referred to several of the State Constitutions, in which oaths of allegiance are required. But this does not prove, that when an oath in a prescribed form is exacted in the Constitution of a State, that the Legislature of that State may lawfully impose an additional oath. The utomst it does prove is, that in those States, where such oaths aro required by the constitution, the-convention that adopted it, believed that allegiance was due to the State. But it. does not prove, that they believed no allegiance was due to the Unit. ed States. _ To give it that extent, it must be" shewn that in those States, as in South Carolina, their Conventions and Legislatures have denied, that the United States were in any respect sovereign.
    According to the 2d section of the 9th Art." of the Constitution of this State, no freeman can he disseized of his privileges, or deprived of his liberty, but by the judgment of his peers or the law of the land. This provision has reference exclusively to the mode of trial, and by the law of the land is meant the law regulating the mode of trial as it existed at the adoption of the Constitution of 1790. This is the settled construction of that section of the Constitution. A freeman may be convicted, and deprived ofhis liberty, and disseized of his privileges, among which is the right to hold office, only in such manner, as was authorised by law in 1790, and the Legislature cannot prescribe another mode of trial. To a conviction and privation of privileges, it was at that time essential, that the proceeding should be in a court of justice, that the party should be tried before a jury, and by their verdict, or by his voluntary confession found guilty.— There could be no conviction, or deprivation of privilege, or forfeiture of any kind incurred by a forced confession of guilt. No freeman could nor can be compelled to answer, whether he is guilty of an offence, if such guilt works a forfeiture. This silence is a privilege secured to him by this section of the Constitution, and the Legislature may as well abolish the trial by jury as this protection against oppression. Yet under the military organization act, the holding of particular political tenets, constitutes a crime, which works a forfeiture of office, and admitting the power of the Legislature to punish this crime, in this way, have they the power to order the conviction to be, by compelling the party to swear that he does not hold those tenets, and on refusal to declare him guilty without the intervention of a Court; and to authorize the Colonel of the regiment to pass sentence of forfeiture and disfranchisement on him, and carry the sentence into execution ? Let us see where such a doctrine leads. The Legislature declare exclusive allegiance is due to South Carolina. Two fifths of the State conscientiously believe the contrary, and probably two fifths more have no belief on this subject, but as it is a tenet of their party. The other fifth then convert a difference of political opiniou into a crime, force by test oaths an acknowledgement of guilt, impose the penalty, and carry the whole into execution by a militia officer, whose faithfulness to his party must be well secured before he can act, since if he has not sworn to the test, he cannot be in office. If all this may be done in relation to one set of opinions, it may be done as to all opinions : if it may be done as to military offices, it may be extended to all offices, to all liberties and privileges, and the Legislature may require any freeman to deny his guilt on oath, and on his silence convict him of any crime or political heresy, with which he may be charged, not only in a court of justice, but before any officer the Legislature may designate, or travel-ling commission they may appoint. Will this court tolerate a doctrine, which has no parallel but in the Spanish Inquisition ? That citizen is a recreant to every sentiment of independence, of liberty, of honor, who will submit to be thrown into a caste, that is subject to this degradation.
    
      A vastly snore important question remains to be considered. I now suppose that the powers of the late State Convention wore unlimited, and that the military organization act was passed by the Legislature by the authority of their ordinance. In this view of the subject, if that ordinance be consistent with the Constitution of the United States, that oath is constitutional. But if the ordinance declaring allegiance to be exclusively due to the State and that none is due to the United States, be repugnant to the Constitution of the latter, and therefore void, the oath required by the act passed in pursuance of it, is also void. I shall proceed to prove, that that ordinance is a direct violation of the Constitution of the U. S. I may safely assume, that sovereignty and allegiance are correlative; that where the first resides, there the last is due. This narrows the enquiry to the single point, whether the United States are, to any extent, a sovereign community. For if they are, then the ordinance la untrue, when it affirms that no allegiance is due to that community. To support my view of the case, I shall attempt to shew, that the United States arc a political community, possessing sovereign powers, having citizens, that owe it allegiance, and who by violating that allegiance, may commit treason, which the Government of the United States have the right to punish : and then I shall attempt to show, that South Carolina, so far from being exclusively sovereign, has no sovereign attributes, but what consist in the control she has over her own State Government, and that allegiance is duo her only to the extent of her reserved rights.
    But before I proceed I must define what I mean by sovereignty, and where I regard it as deposited. It is evident that before political associations were formed, sovereignty could not exist. But when men formed communities for the purpose of living under a common government, the power to constitute that government originated, and vested wherever the people of that community deposited the Constitution making power. Unless some other disposition of it were made, this power would seem to reside in the people themselves, to be exercised by a numerical majority of them, following in this respect, from necessity, the law of physical force. But so far from this control of the majority being universal, it will be found that in most communities, the usurpations of power, or the concessions of the governed, have abandoned this law of the majority, and the supremo power to constitute the Government, as well as to administer it, has been vested in one or a few, who by a superior organization of a numerically inferior force, or by superior address, subjected the groat mass of the community to their absolute will. This was so general throughout Europe, that it was there received as the true political theory, that the rights of the people, depended on the grant of the crown or nobility. It is only of late that this doctrine has been exploded. The great political discovery of modern times, on which the hopes of all free constitutions rest, is the acknowledged supremacy of the people over constitutions and of constitutions over governments. This distinction constitutes the foundation of our American political systems. I might say, that till lately, it was peculiar to them. This marks the limit between sovereign and governmental powers, between the right to make, and the right to administer the government. The first of these can be legitimately exercised only by the people, or those in whom the people deposited the power, when they entered into the social compact; the last is exercised by the government, divided into legislative, judicial, and executive departments. And here 1 may observe, that whether the Constitution making power in a republic, shall be exercised by a numerical majority or by some other portion of the community, depends entirely on the compact of association, which constitutes them one people, agreeing to be governed by a common will. In .South Carolina a mere numerical majority is not the exponent of that common will. It is a regulated majority, approximating to the major part of those in whom the right of suffrage is vested ; but still the whole structure of our government may be altered by less than a majority of all the voters of the State. The late Convention was called, and the sovereign power of the State brought into action, upon a principle of representation, which might have placed the power of that Convention in the hands of those who represented less than one third of the voters of the State.
    _ By sovereignty, therefore I mean, the supreme power in a community, to be exercised by a prescribed number of its members, in constituting a government for all its people residing within a territory of defined limits, or where such government has already been formed, in altering, amending, and reorganizing it, beyond the control of any earthly tribunal. If any other tribunal may control the exercise of this power, it is not supreme, it is not sovereign. Wherever m other countries, this paramount control over all the departments of government may reside, under our system, the people are the depository of it, and the exercise of it is perfect and binding on all, when it is expressed by such a regulated majority of them, as by their social compact contained in their Constitution, have been designated to give such expression.
    I am aware that many consider sovereignty as residing in the Government of a country. They confound the Constitution making power with the power to administer the Government, which has been created by the Constitution. This confusion of ideas has arisen from adopting the language of England, where these distinctions have not been authoritatively recognized, and till lately were hardly known. The sovereign and the lawgiver were there once confounded. Parliament met only when the king called them. Laws were not enacted by them, but the statutes of the realm were in form, and substance too, petitions to the King, and that which was prayed for, became law only when the sovereign consented it should be so. The King was considered as the fountain of justice, which he administered in person, when he pleased. The Judges at Westminster were his agents merely. So in France, on the first overthrow of Bonaparte, the Bourbons on their return, claimed the right to grant a charter to the people, and refused to receive a Constitution from them. This was in conformity with the old doctrines of nearly all the governments in Europe. It is not, therefore, extraordinary, that when Europeans speak of their sovereigns, they intend to designate not only those who make, but those who administer their Governments. But even in Europe this language is ceasing to be regarded as correct— and with us it should be entirely discarded. For if by sovereignty we mean absolute supremacy, it would .be absurd to ascribe it to any department of our General Government, or all the departments in mass, when the Constitution, which gave them all their powers, contains a provision, by which the whole structure of the Government may be changed and remodelled, and every department of it may have its powers limited, transferred or abolished, beyond its control, except in the single particular of the equality of representation in the Senate.
    Another view of this matter will serve to confirm this opinion. — < Allegiance is only due to the sovereign. Treason is the violation of this allegiance, and according to our system, consists in a forcible attempt to transfer the sovereignty, or abolish the Government, it has formed. This can be done only by levying war or adhering to our enemies, giving them aid and comfort. It must be a belligerent act, and not a mere act of disobedience to the laws. But if the government were sovereign, obedience to its laws, which is the only duty we owe it, would be allegiance, and disobedience treason.' The man who should knock down a constable, that attempted to arrest him with a legal warrant, would then be a traitor. To preserve the harmony of our system we are compelled to exclude the idea of governmental sovereignty, and to regard all governments as the mere creatures of sovereign power, which, in the United States, resides wherever the Constitution, that unites them into one political community, has placed the right to alter, amend or remodel the Government of it.
    We must then enquire whether the Constitution of the United States, ordained or establised by the people of it, to preserve the blessings of liberty to themselves and their posterity, has constituted a political community, and vested in the people of it, the power to alter, amend and remodel its form of government, by the action of a regulated majority, whose decision, when once made, binds the people of all the States, as well those who dissent, as those who assent to it.
    I believe no man will venture to asssert that the people of thirteen independent sovereign communities may not form a new social compact, and constitute themselves one community for certain governmental purposes, reserving their separate existence for certain other purposes, and that they may not vest in the aggregate community, the constitution making power, or the right to form for itself a Government co-extensive with the objects for which that community was formed. I think 1 may also venture to assert, that they may make that compact irrevokable, and renounce the right to dissolve it. 1 admit the Governments of these thirteen communities cannot do this without the consent of their people ; but when the people have ordained and established such an aggregate community, to assert that any one of them may dissolve it, without revolution, is to deny the authority and binding force of all political compacts.
    There result from the formation of every political association, whether organized from insulated individuals, from a new combination of several communities into one, or the abruption of a single community and the organization of saveral independent ones from it? three distinct species of power, sovereign, governmental, and revolutionary. The two first depend for their existence, entirely on the compact.— The last successfully exercised, destroys that compact, and usually ends in the establishment of new communities, formed out of the elements of the old, possessing distinct sovereign existence, or m the reorganization of the social compact for the old community, with a new form of government or new distribution of the powers of sovereignty. I urge these distinctions with more earnestness, because 1 believe that all the errors of the South Carolina doctrine, have originated in confounding revolutionary, with sovereign rights. In my mind nothing is clearer than that sovereignty is the result of the social compact, and that revolution is the destruction of it — and that, to ascertain, whether a measure be the exercise of a sovereign power, or revolution, we have only to enquire whether it is in accordance with, or in destruction of, the political compact, which unites the people in one community.
    In pursuing the argument, I am hound to concede, that at the declaration of independence, the State of South Carolina became a sovereign State, independent in this respect, of all other communities. Before that declaration, the British Crown was absolutely sovereign here. It was from that crown the colony received its charters, containing its form of Government, and when the revolution destroyed the authority of George III, the Constitution making power, vested in the people already associated as a political community ; and they exercised it, by forming a government for themselves. When the State entered into a “league of friendship,” with the other States, called the Old Confederation, she reserved, in express terms, her “sovereignty,” and in this capacity she adopted the Constitution of the United States.
    Let us now examine the manner of that adoption. The Articles of Confederation which preceded it, had been ratified by the delegates of the several States in Congress, authorized to do so, in most instances by the State Legislatures; and not by the people of the States. This mode of adoption was, therefore, a merely governmental act; and well might be so, since the Confederation was declared to be-a mere “ league of friendship,” receiving no sovereign power. To the formation of such league, the Legislature were competent; no exercise of sovereignty was necessary, as it neither formed a Government nor conferred sovereignty. But when the Constitution of the United States was formed, by the General Convention, it was declared to be the act of the “ people ” of the United States, and to make it so, was ratified by the “people of each of the States ; no State became a part of this new political association, but by the full consent of its people. Every step of the ratification was the exercise of sovereign power; and it may well be asked, why resort to this, if a mere confederacy was to be formed, or as has been asserted, if the new Constitution was but a continuation of the confederation, with a simple enlargement of its powers %
    
    In almost all the arguments offered to prove that the States retain their undivided sovereignty, it is principally relied on, that “ each State adopted the Constitution of the United-States, through its own Convention, by its separate act, each for itself, and is only bound, in consequence of its own adoption, without reference to the adoption, of any other State.” This states the historical fact correctly. Let us examine the deduction from it. It is unquestionably true that this must have been the only mode of efficient adoption, had that instrument contained only a single article, merging the entire sovereignty of all the States in one national community. If so, it is a mere sophism to urge that fact, as any proof that no sovereignty was parted with. It does not furnish the shadow of evidence to support the only position attempted to be proved by it, unless it can be affirmed, that the transfer of sovereignty requires no exercise of sovereign power. But I am led to a very different inference. If a confederation was intended, the mode of ratification then in use, by delegates appointed by the State Legislatures, would have been equally appropriate, and, no doubt, would have been resorted to. A departure from the accustomed mode of creating a league, and a resort to that which was required, only when a new political community, with soverdgn powers, was about to be formed, is strong to prove that such community was intended tobe formed, and such powers to be conferred, and when we connect with it the fact, that in the old confederation, State sovereignty was expressly reserved, and in the Constitution, this reservation is dropt, the inference becomes too strong to be resisted.
    But now let us look to the instrument itself, to decide what the Constitution has done. It declares that “ the people ” of the United States, “ to secure the blessings of liberty to themselves and to their posterity,” without limit of time, have ordained and established a Constitution, which vested certain powers “ in the Government of the United States,” (see clause 17, sec. 8, art. 1 C. U. S.) and has created legislative, judicial, and executive departments, extending their action to every individual in every State and Territory, and in immense regions beyond the limits of the twenty-four States. This Government depends on its own efforts for the execution of its own laws, and while acting in the heart of a State, requires not its aid for their enforcement. Here is a constitutional government formed, acting uniformly on every individual of the country within its immense territory, and following them even beyond its own territorial limits, on the ocean, and in its foreign relations, in the remotest nations ; and can it be said that all those individuals are not associated in one community 1 That although they are subject to a common government, they are members of no common community, but of twenty-four independent communities, some of them belonging to no community at all, but to such as have been formed into territories by the sole power of the Government of the United States ? Those who hold this, should refer us to instances where the word “ Government ” has been applied to express the stipulations of a confederation, where “ Constitution,” has been used to express the formation of a league, and where under a confederacy, its action has been direct on the individuals composing the confederated communities, and not on the communities themselves. No such use of the terms “ Constitution and Government” can be shewn. When these same States formed a league of friendship, they styled the terms of Union, “Articles o! Confederation,” they used the word “ confederacy,” not “ go-vernmont.” The action of this confederation was on the States, not on the individuals composing them. Now if, as has been said, the Constitution of 1787, is a mere continuation of the confederacy, is it not extraordinary, that the Convention should have expressed themselves in language so entirely inappropriate to their object, and have called that a “government” which was intended to be a “ league!”
    The universal understanding' of the American people, at the time of the adoption of the Constitution of the United States, and ever since, with the exception of a party in South Carolina and a very few out of it, has been, that the people of the United States formed one communily, to the extent of all the interest secured by that instrument ; and-even now among the adherents of the Carolina doctrine, one of its leaders, if not its great author, admits the existence of this one community. In Mr. Calhoun’s speech m the Senate, 9th April, 1834, he says — “ Each State has two distinct Constitutions and Governments, a separate Constitution, to regulate the objects in which each had a peculiar interest, and a general one, to regulate the interests common to all, and binding by a common compact, the ivhole into one community, in which the separate and independent existence of each State, as a sovereign community, is preserved, instead of being fused into a common mass.” The leading fact here admitted is, that as far as their common interests are concerned, there is a general Government for all the States, bound, by a common compact, into “ one community. The metaphor I leave others to explain. Metaphors are not always arguments.
    It would seem unnecessary to pursue the argument any further. But I must meet an objection. To avoid the inference, that the United States are sovereign, which necessarily follows from the fact, that they are one community having a common government, we are told, that this general, government is not the government of this one community, but of each of the States that compose it, or to use Mr. Calhoun’s own words, “ the Constitution of the United States is in fact the Constitution of each State.” “ In Virginia, for instance, it is the Constitution of Virginia.” If it is the Constitution -of Virginia, in any other sense, than that it is mine or yours,, because we are a part of the people of the United States, it is, that it is hers in her separate independent existence as a sovereign State, and if so, Virginia as a sovereign having an absolute control over her own government, may alter and amend it; for it is in this right, that her sovereignty as an independent community consists, viz. in the uncontrollable right to make her own government what she pleases. If Virginia cannot so amend the Constitution of the United States, if she has parted with the right to do so, and has conferred it on another community, whose will when expressed, as to the form of this very Constitution, she must obey, although she may vote with her whole population against it, it is absurd to say, that this is the government of independent Virginia — her Constitution as a sovereign State ; not one article of which can she amend and every article but one of which, may be amended without her consent and still bind her as the supreme law of her land. Again if the Constitution of the United States is the Constitution of Virginia, not as a part of the aggregate community, but as a sovereign community of “ separate and independent existence” as affirmed by this distinguished Statesman, from whose opinions, most of the arguments for exclusive State sovereignty are drawn, then it would be the Constitution of that State, were all- the other States annihilated. It would then follow, that under one of her Constitutions, she might declare war, while she is prohibited by it from engaging in war, she might coin money, while prohibited from coining it. But such absurdities do not exist. Virginia has but one Constitution in her separate capactity. In her capacity as a part of a common community, she has another Constitution in common with the rest of that, aggregate community, over which she has no controul, either in amending or in administering the government created by it, but what that Constitution concedes to her. It does appear to me extraordinary, that after the admission that all the United States form one community, it should have been imagined, that “ the government of the United States” (for so the Constitution calls it) was not the government of that “ one community.” But an object was to be obtained by it. The inference that that community was sovereign, which would follow, from the admission that it had a government, was to be avoided and hence the assertion, that “ it is in fact the Constitution and government of the whole only because it is the Constitution and government of each part.” Now the words of the Constitution are in direct opposition to this assertion. On the face of the instrument itself, it is declared to be “ the Constitution of the United States,” “ the government of the United States.” In the whole instrument there is not an intimation, that it is intended to be the government of each of the States separately. If it was intended to be so, it might, and would have been so expressed. But it is not so expressed nor so intended, but to use the language of Mr. M’Duffie, it was intended to be “ as truly the government of the idhole people, as a State government is of part of the people,” and therefore it has been so expressed.
    The assertion, that it is the several governments of each State, and not. the general and common government of the one political community of the United States, is the only support of the Carolina doctrine. If this falls, exclusive State sovereignty falls with it. J must, therefore examine it a little further. If it be the several governments of each State, let us be informed to which State it belongs, when it unfurls its stripes and its stars in the broad Pacific and there extends protection, to the American sailor and to American commerce. Shall we be told it is the Virginia sailor and Virginia commerce, because the last land seen from the vessel that conveys them, was the capes of Virginia. What then, if she had sailed last from the mouth of the Columbia river 1 Of what State is it the government, when in the far distant west, it gives protection to the emigrant, or the native 1 When its process issues from Washington, which is within the limits of no State, and runs through all States, all territories, all regions within our limits, and beyond the limits of any State or territory, and reaching every individual within this broad expanse, disregarding state or territorial boundaries; whose government is then acting 1 It is useless to pursue this imagination any further. The Constitution of the United States has not formed a government for each State separately, but « we the people of the United States,” have established a Constitution forming a social 'compact and government, for ourselves and our posterity, as one community with perpetual succession, without limitation of time.
    The assertion, thererefore, cannot be supported, that “ it is the government of the whole, only as it is the government of the parts.” — • But the very converse is true. ' It is the governments of the parts only as it is the government of the whole, formed by the whole, made for the whole, capable of acting only as the government of the whole and ceasing to exist, when it ceases to be the government of the whole.
    
    It is hardly worth stopping to notice the observation, that “ we the people” have a plural meaning although in the singular form. It proves nothing, let the assertion be true or false. I have before observed, that if sovereignty was to have been conferred on the United States as a community, it must have been done by the people of the several States in Convention and not by the State Legislatures. If therefore, “ we the people of the United States,”'mean we the several communities of the thirteen United States, still it would not prove that no sovereignty was parted with by the instrument, they ordained and established. But on the contrary would strongly lead to a different conclusion. For why resort to the sovereign people to ordain this Constitution, if no sovereignty was to be parted with, but a mere league was to be formed: for which purpose Legislatures, before that time, were always regarded as competent. But the assertion that it has a plural meaning, cannot be supposed : it is merely conjectural, and we must look to other parts of the Constitution to determine whether the people intended to become one, or remain many communities- under their new government, for the purposes embraced by it.
    That the people of the United States are a political community united in a new social compact, adopted by the people of all the States in their sovereign capacity, I think may be shewn by comparing the provision in the articles of confederation for alterting them, with the amen ding power in the 5th art. of the Constitution of the United States. By the articles of confederation, no amendment could be made in them, but by the unanimous concurrence of all the States, and had such unanimous concurrence been required to alter each article of the Constitution, an inference might have been thence drawn, that the States had reserved their separate existence and had not agreed to unite m one political mass for any purpose. But this inference would have been subject to the control of other facts appearing in the instrument, and would be sustained or not, according as it should receive support or not, from other parts of the Constitution. But when we find the whole amending power changed, on the adoption of the new government, and rendered available to bind the whole people of the United States, by the concurrence of a majority of the people of three fourths of the States, we are forced to the conclusion, that the other one fourth are bound by this change in the government without their consent, only because it is the government of a political community of which they are a part.
    Having thus shewn, as I believe, that the people of the United States are a political community, having a common Government, I shall attempt to prove that this community is sovereign for all tho purposes expressed in the Constitution. If my definition of sovereignty be correct, that it consists in the right to remould and amend its own Government at its own will, by the action of a regulated majority, the 5th or amending article of the Constitution has expressly conferred sovereignty on the community for which that Government was formed. Claiming the right to correct one immaterial error in the argument, I cannnot so well express my views on this'part of the case, as in the language of the South Carolina exposition of 1828.— It is there asserted, “ that by an express provision of the Constitution, it may be amended or changed, by three-fourths of the States, and each State, by assenting to the Constitution with this provision, has surrendered its original rights as a sovereign, which made its individual consent necessary to any change in its political condition, and has placed this important power in the hands of three-fourths of the States, in which (he sovereignly of the Union does now actually reside.” This position I regard as correct in every particular but one. The sovereignty under the amending power, according to my view, resides in the whole United States as a political community: it may be exercised by a regulated majority, which shall never consist of less than a majority of the people of three-fourths of the States. When this majority acts, it expresses, under the compact, the will of the whole, which is always the case under the social compact. The government, when thus amended, is the Government of the whole people, established by the whole people, who have agreed to be hound by the acts of three-fourths, and to consider their will as the will of the whole. Can it then be doubted, that the Constitution has made tho people of the United States one community, has created a Government for them, and conferred on them the sovereign power of changing that Government and amending all its provisions except one 1— and shall Í be told, afler this, that the United States are in no respect sovereign, but that South Carolina is exclusively so?
    It may be supposed that there is an implied condition annexed to the amending power, which would restrain the three-fourths from departing from the republican form, in changing the provisions of tho Constitution. Admit it, and it does not follow, that because there is a particular restraint on the exercise of sovereignty, that it therefore ceases to be sovereignty, for all purposes beyond the restraint. Authorities have been cited by the counsel for the oath, to shew that sovereignty may be restrained and diminished, and be sovereignty still. But I do not concede that any such condition is implied. I grant that if three-fourths should make the Chief Magistrate hereditary, it would be a gross abuse of power. Againt this and other abuses we have provided, by requiring so large a majority as three-fourths, and this is the only guard we have thought necessary. The right in the one-fourth, to correct the abuse, is revolutionary, not sovereign.
    I recognize the distinctions between allegiance and obedience, holding that the first is due to those, who can constitute a Government, or when constituted, can amend it; and that the last is due to those who can administer it, when made or amended. Is there any thing in the Constitution of the United States, which hinds us to-support the Constitution making power? By the sixth article of the Constitution, all legislative, executive and judicial officers, both of the United States and of the several States, are (required to be bound by oath, to support the Constitution, and among-its other provisions, to support the sovereign power of amendment. This path is precisely identical with that to support the sovereign, arid is an oath of allegiance, according to my view, and according to the decision of every department, of the General Government, as appears By'the case from Crunch, on which the counsel for the oath have relied.
    But we have been lately told, that sovereignty is indivisible, and that allegiance cannot be due to two sovereigns. When I deny this, 1 should state what I mean. I do not pretend that when sovereignty is regarded as a mere physical attribute, resolving itself into absolute uncontrolable force, that two communities, in this sense of the word, over the same matter, can bo supreme. But we are not considering this state of things — we are looking to political supremacy, parcelled out and restrained within fixed limits by compact. 1 hold, that under the modern theory of government, it is possible to retain sovereignty by compact, and that the thing.called indivisible sovereignty means the absolute physical power to violate that compact — and in this sense of the word, I regard the new doctrine ot indivisible sovereignty, as another name for absolute despotism. For that power, which can remove all conventional restraints, which can at its will free itself from all conventional obligations, may be absolute indivisible sovereignty, but still it is despotism, wherever it may reside. But we are considering a question of right, not of force — a question arising under the social compact entered into by all the people of the United States, ordaining and establishing a Constitution, the obligation to support which, as yet we all acknowledge; and the enquiry is whether, by that compact, we have not divided between the United States, and thé several States, the power to sustain, amend and change the Governments, which have been established for each, over distinct and separate interests. Whatever may be urged to the contrary, there can be no doubt that there is a Government of the United States, as well as a Government of Carolina, the formation and alterations of which require the exercise of sovereign power. There can be no doubt that these Governments were made, and must be amended, by different masses of the people, and not by the same mass — that of South Carolina must be amended by the people of the State — that of the United States may be amended without the consent of the State. Now if the mass that made, and may amend the one, bo sovereign, and the mass that made and may amend the other, be sovereign, it would be difficult to shew that sovereignty may not be divided. The larger may, to be sure, swallow up the less, and-would do so, but for the moral restraints which controul physical indivisible supremacy. I am contending for the support of these moral restraints — those who conténd that sovereignty is always an unit, assert the right to abolish them.
    Let me illustrate this matter by a supposed case. The people of a country transfer the constitution milking power to three persons— to one 'they assign the irrevokable power to frame the government iu the executive department, to another, the power to frame the legislative, and to tiie third, the judicial departments. If the three are bound by this compact, who will tell me that sovereignty may not be divided! Will any one say that the people may dissolve this compact, may resume their surrendered rights,/evoke the grant which they have imprudently made irrevokable! No doubt they may — but what would this be but revolution ? The iesort to physical force to avoid a political compact! If this be not revolution, it is because the contract sought to be dissolved, is an unjust one. But who will toll me that force used to destroy a government is revolution, only when that government is just! If it be not revolution the word should be blotted from our vocabulary. It will be seen from ibis view of the subject, that the advocates of its indivisibility, place sovereignty in the ultimate supremacy of force, by which a people may destroy a government, however fortified by conventional guards, and by which the social compact may be dissolved, and one political community split into an hundred. This I deny to be sovereignty. That to which I am willing to swear allegiance, is the creature of the social compact; it is the depository, under that compact, of the power to control the form of our government in peace, not to change it by force.
    I may be told, that in the case I have supposed, of the division of conventional sovereignty, one may prove too strong for the rest, and absorb all their powers ; that therefore, he alone is sovereign. But is it not at once perceived that this is the sovereign right of force, to destroy what, by compact we are bound to preserve ! And the whole argument, at last, resolves itself into this, that the Uniied States ought not to bo sovereign at all, lest, if they are admitted to any participation of sovereign power, they may swallow up the whole.
    Till this fear was excited, the indivisibility of sovereignty was never imagined. It was not thought of in 1798, nor in 1828. It is a new light of more recent origin. In the report on the Virginia Resolution, page 26, we find the following assertion: “ To consolidate the States into one sovereignty, nothing more can be wanted than to supersede their respective sovereignties in the cases reserved to them by extending the sovereignty of the United States to all cases of the general weifere, that is to say to all cases whatever.” This asserts that the States are sovereign in the cases reserved to them, and that the United States possess sovereignty, which, by usurpation, may be extended to all cases whatever ; and the object of the Virginia resolutions and report, was to prevent this usurpation, and keep each within the limits of ther respective sovereignties. But it never entered the imagination of politicians of those days, to deny that the United States possessed any sovereign power. The exposition of South Carolina of 1828, which Mr. Calhoun, in Ms speech of the 9th May, 1834, seems to approve, still more strongly expresses this division of sovereignty. It says, “looking to facts, and not mere hypothesis, the constitution has made us a community only to the extent of our common interests, leaving the States distinct and independent as to their peculiar interests.” The United States, then, are a community. The exposition proceeds, “ our system, then, consists of 
      mo distinct and independent sovereignties.’' Again, “ thence the division of the sovereign power, and it is upon this distribution of power, that the whole of our government rests.” Will the gentlemen who wrote this exposition, who reviewed it, who reported it, tell us that sovereignty is indivisible 1
    
    But we arc told there is a distinction between sovereignty, sovereign powers and the exercise of them, i am not skilled in these subtle distinctions — but if the right to the entire exercise of sovereign powers be conceded to me, the gentlemen, who discovered the distinction, may have the phantom that remains behind, and they may call it sovereignty too, if they please. But I beg them not to attempt to swear all our people to the acknowledgment, that such an abstraction is entitled to all our homage, fidelity and allegiance.
    The Attorney General has presented a license to a practising attorney, which recites that he had taken the oath of fidelity to the State. What meaning the Clerk who made it out, or the Judges who signed it, attached to the term “ fidelity,” we are left to conjecture.— But if legal forms are to have any influence in deciding the question, I would refer the Attorney General to the test of the same certificate, which he will find dated in-“ year of the sovereignty of the United States.” This is the form pursued in all our deeds, wills and writs, and in most of our commissions and legislative acts. The first professional act performed by my legal opponents, on entering on the study of the law, and the one performed by them to-day, if they have issued a writ, has been to subscribe to the sovereignty of the United States. I shall not be told here, that sovereignty, like we the people,” has no plural form, nor that if the exclusive sovereignty of the several States is meant, it vyould not be more appropriate to test our judicial processes in the-'"year of the sovereignty of the State of South Carolina. If the United States, as a community, are not sovereign, I do not know why, in those forms, we should have dragged in the sovereignties to Rhode Island, Delaware, &c., to help us out with the mere test of a writ. The truth is, that until the South Carolina doctrine of forcible resistance to the United States, without committing treason, was advanced, no one over asserted the doctrine of State supremacy, in the latitude it is now claimed.
    That treason may be committed against the United States, and be punished by them, is conclusive that allegiance is due to them, unless it can be shewn that treason is not the violation of allegiance. And so destructive to the doctrine of the Ordinance of 1833 is this view of the matter, that the advocates of that doctrine' iiave ventured the assertion, that treason may be any other crime as well as violation of allegiance, if the government choose to make it so, or perhaps, it was intended to be added, if the people choose to make it so. Admit it, and it proves nothing, unless they shew that the people of the United States, in defining treason, have made it something other than the violation of allegiance. Who have dared to attempt this! Who have attempted to shew, that to levy war and adhere to our enemies, is something else than the violation of allegiance % At the time the Constitution was adopted, treason, or the crimen lesee majestalis the crime of destroying the sovereign, had a definite technical meaning.— The British Barliament had fixed the character of the oflence. It meant the forcible attempt to destroy the sovereign, and in that sense the Convention of 1787 used it, and declared that “ treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” I-Iad the Government never passed a law, treason might have been committed — but it must have been a bcllig'erent act — either civil war, or aiding a foreign one. Now, the object of civil war is to compel, by force of arms, a chango of the government, or it is intended to resist its action, or deny its authority, and this is a direct assumption of the powers of those who formed that government, or who alone can alter it. Foreign war is a direct attack on the existence of an independent community, and an attempt to subject it to the control of the aggressor. It has the destruction of sovereignty for its object. So that whether we look to the meaning of the term, as used by all legal writers, or to the definition of it contained in the constitution itself, treason is no other than the violation of allegiance, the violation of the obligation to support tho constituuion of the United States — ■ And after this view of the matter, it is vain for counsel to urge, that the people might have made it something else. We must take it as we find the people have made it, a crime against the United States, in their sovereign capacity, independent of any laws the Government may enact.
    1 might here ask when under a mere league or confederation of independent nations, was treason ever supposed to he committed against the confederacy, or was ever attempted to be punished by it 7 As far as my reading extends, I have never found an instance in which this has been the case. Treason, under such confederacies, has always been regarded as a crime against the confederate, whose subject has committed it, and that confederate has punished it. Under our old confederation this was the case. Each State punished its own citizens for treason, and they could be punished in no other way — for the confederation had no courts but for the trial of piracies and felonies, committed on the high seas, and for deciding appeals in oases oí captures. If treason had been charged, it must have been charged, in a State Court, against the State sovereignty, which had •been expressly reserved. But under the present constitution, treason must be charged against the United States, not as the violation of any law of its government, but as a violation by civil or foreign war, of its social compact, which constituted it a nation.
    I must here notice the assertion, that has been made with such confidence, that “delegated powers are the reverse of sovereign powers.” The argument, when put iu form is this: Sovereign powers cannot be delegated ; the United States have none but delegated powers, therefore, the United States are not sovereign. If “ to delegate” means to grant, without the power of revocation, then sovereign power may be delegated, and the assertion is not true. But if it means to transfer a revocable power, the assertion amounts to nothing more than Uiis, that the United States possess no powers but such as have been delegated in this sense of the word, viz: powers which may be revoked by any State at its pleasure — which is the very point in dispute. This pretended truism is, therefore, a mere petiiio prmcipii, or begging of the question.
    
      The word “ delegated,” is not used in the original constitution, and only once, and then negatively, in the tenth amendment. The terms conferring power on the United ^States, are “ ordain,” “ establish,” “ vest.” When a constitution is ordained and established, creating a political community, and forming a government for it, in which executive, legislative and judicial powers are vested, I think I may assert, with great confidence, that the powers which result from this ordination and establishment, this creation of a government for a nation, are the very1 reverse of powers revocable by State authority, and may be sovereign. The tenth amendment uses the words “ powers not delegated to the United- States,” and the whole assumption is founded on this expression alone, and the inference attempted to be drawn, is, that because there are some powers “ not delegated,” there are no sovereign powers granted or created. This is the entire strength of the argument, and is wholly inconclusive.
    I have said that the United States have citizens, as distinguished from the citizens of a State. But it is supposed that all the rights of citizenship in the United States are derived from the 2d sec. 4th art. of the constitution, which declares that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” This is a mistake. As citizens of the United States, our rights are not so derived. As citizens of a State, we may have privileges and immunities, with which the United States have nothing to do — such as the right of suffrage, of office, of property, &c. Now the object of the provision above recited, was to compel each State to put the citizens of every other State on a footing with its own citizens, in those particulars which are peculiar to the States. But without this provision, as a citizen of the United States, every man, within the acknowledged limits of our republic, would have equally participated in the privileges and immunities of every other man in the Union, so far as they are under the general government. How else could a man born in a Territory, or in the District of Columbia, be President ofthe United States ?
    But let us see in what light the several State Conventions have viewed this matter. Of the twenty-four States, four formed their State Constitution before the adoption of the Constitution of the United States, and one is still governed by its royal charter; — of the remaining nineteen States, the word “ citizen” is not used in the Constitution of four. In fixing the qualification of office, one of these only (South Carolina) uses the term “ citizen of the State,” and the remaining fourteen use the terms “ a citizen of the United States.” Thus in the 4th sec. 4th art. of the Constitution of Virginia, adopted in 1830, it is declared “ no person shall be eligible to the office of Governor, unless he shall be a native citizen of the United States, and shall have been a citizen of this Commonwealth five years next preceding his election.” In Alabama, “ the Governor shall be a native citizen of the United States, and shall have resided in the State four years next preceding the day of his election.” Can any one doubt what is the meaning of this ? If there be no such thing as a citizen of the United States, in their capacity as an aggregate community, this language is wholly inappropriate. It should have been, «no man shall be Governor unless he has been a citizen of some of one of the United States.” But this would not have included all the citizens of the United States — The natives of the territories and districts would have been excluded, and so might one bom abroad, of parents in the service of the United States. But under the general term of “ native citizen of the United States,” the citizens of States, Territories and Districts are included, being all regarded as citizens of that one community composed of the whole of them. That this is the light in which they have been uniformly regarded, till lately in South Carolina, will appear from our naturalization laws. The Constitution of the United States gives Congress the power to establish “ a uniform rule of naturalization.” If the citizens of the several States were not citizens of the United States, as an aggregate community, the powers of the general government would have ended with prescribing the rule, and each State then must have acted in making citizens of its own, swearing them to bear allegiance to that State. But instead of this course, the general government has authorised its own courts to admit citizens — and when the State courts act in this respect, they are merely the agents of the United States, swearing them only to support the Constitution of the United States — and that this course is correct, your honors have all lately decided, in the case Ex parle Granstien, 1 Hill’s Reports, 143. The legislature of this State has recognised the same doctrine. On the 19th December, 1807, the act was passed to enable aliens, under certain conditions, to hold real estate — and it declares, “ that every alien, previously to his being entitled to avail himself of any of the benefits of this act, shall declare his intention to become a citizen of the United States, agreeably to the acts of Congress, in such case made and provided.”
    Having thus shewn, as 1 think, that the United States, as a political community, are sovereign, that allegiance is due to them, that their citizens may be punished for violating that allegiance, it follows, as a matter of course, that the ordinance of 1883, which authorises the Legislature of the State to require an oath of abjuration of all allegiance, except to the State, is a violation of the Constituton of the United States.
    I shall now shortly state my objections to that part of the ordinance, which affirms that allegiance is only due to the State. The prohibitions in the Constitution of the United States, on the exercise of certain powers by the States, would, according to some, be regarded as restraints on their separate sovereignty. No State can make war, form treaties, coin money, and so forth, and these have been regarded as sovereign attributes. 1 do not consider them such. The power, for instance, to declare war, is merely governmental. Under the Constitution, Congress alone can declare it. It is thus the act of the Legislative department. But it might have been lodged with the Executive, the Judiciary, and even might have been vested exclusively in South Carolina, the other States consenting that she should decide on war for all of them. And had any of them been substituted for the power now lodged in Congress, it would not have conferred a particle of sovereign power on the Executive, the Judiciary, or the State — but they would have been the governmental agents of the United States, for th,is particular purpose. But the power to change our government, so as to take the right of declaring war from Congress, and put it in some other department, is sovereignty; and if South Carolina can make this change for all the rest, of the United States, she is exclusively sovereign. This power might have been vested in her, according to my theory, but. it has not been ; so far from it, that that change may be made, and the pawer to declare war may be taken from Congress, and conferred on the President, or placed any where else, not only without her consent, but against her consent — and still South Carolina will be bound by the change, as the supreme law of the land. ,
    On a former day, when called on by the Attorney General, to explain the principles on which I intended to rest my resistance to the military oath, I took the liberty of propounding to him two questions. I requested him to state, how he would reconcile the exclusive sovereignty of South Carolina with the following, view of the subject.— Suppose three fourths of the states should amend the constitution and declare that the general government should have power to levy export duties, which the 5th clause of 9th sec. 1 art. of the constitution now prohibits. That South Carolina, by the unanimous vote of its state convention, should reject it, would this amendment be the supreme law of the land and bind South Carolina 1 If it would, it was then clear that so far from being absolutely sovereign, she may be bound not only without but against her consent. Again, suppose the State should think proper to convert her Governor into an hereditary chief, and her Senators into hereditary nobles, with the power to exercise the functions of Legislators, would this be a government which the United States are pledged to put down, and after relieving the citizens who opposed this monarchial aristocratical government, leave the people to establish any republican form of government they might choose 1 Could the' State create a nobility, under the express prohibition that no State shall grant any title of nobility 7 If the State could not establish any other than a republican form of government, 1 begged to be informed how it could be affirmed, that South Carolina was absolutely and exclusively sovereign, when absolute sovereignty is' nothing more nor less than the incontrolable power in a political community, to establish any form of government it pleases ? The answer was frank — but it appears to me to be an abandonment of the whole ground on which the ordinance of the convention was attempted to be supported. He admitted that the State could not do these things while she remained in the Union ; ■ but it was alledged, that she had a perfect right to secede, whenever she pleased. It is evident there was a discrepency in our views. I was enquiring into the powers of the State, and the United States, upon the supposition that South Carolina was still bound by the constitution of the former. My opponents look farther ahead, and supposed her attempting to destroy that compact, and predicate her absolute and exclusive sovereignty in her right to do so. I think my view the correct one — and that 1 need do no more than affirm what is conceded, that while she is subject to the constitution of the United States, she cannot assert that “ no tribunal on earth is above her authority.” But least my silence should be construed into an acquiescence in the doctrine, that a State may secede, when she pleases, 1 must examine that doctrine. Those who assert the right of secession, must maintain that ail the powers vested in the General Government and all the prohibitions on the States, are revocable at the will of any State — and the burthen of proof is on them.
    But before I proceed to consider this part of the subject, I must silence the objection, that the gauranty of a republican form of government is against foreign domination only, and not against internal regulation adopted by the people of South Carolina. This distinction is attempted as the only retreat from the irresistible inference, which this provision of the constitution would otherwise furnish against exclusive State sovereignty. If the guaranty be ag'ainst foreign usurpation, it is entirely useless. The words of the constitution are these : “ The United States shall guaranty to every State in this Union a republican form of government, and shall protect each of them against invasion.” If a State is protected against invasion, what foreign power is to impose a government of any form upon it t To impute the meaning contended for, this article should stand thus, when literally construed according to this new doctrine, “ if a State shall be invaded, the United States shall protect it — but if it is unable to do so, and she should be conquered, the conqueror shall give her a republican form — and if any other is attempted to be imposed, the conquerer who has defeated the United States shall be compelled by them to desist from his monarchial attempt.” This was not intended. But it was foreseen that in the conflcts for power, the leaders of a dominant party, by test oaths and other means, might exclude so large a portion of the population from any participation in the government, that it might degenerate into an aristocracy, and assume any but a republican form. History teaches, that as many-Repujblics have been distroyed by domestic as foreign enemies, and while the pledge to protect a State against invasion is ample security against the latter, the guaranty of a republican form of government is the only protection given in the constitution against the former. The pledge is in general terms, and its application must be universal; and as long as it exists, no State can adopt whatever form of government she pleases, and therefore no State is exclusively sovereign.
    But we are told the State may withdraw from the Union peaceably, rightfully, and without revolution — and that State sovereignty consists m this. It is clear that the constitution of the United States, on its face, is unlimited in duration. Its object is the security of liberty for the people and their posterity. That it must have an end, is but the common lot of all human institutions — but it has fixed none for itself. What powers it has “ vested, in this government of the United States,” and what it has prohibited to the Siates, are vested and prohibited without limit of time — and that prohibition is surely a very strange one, which any State, at any time, of its own mere motion, may declare no longer a prohibition. A State is prohibited declaring war, but she may secede, and the next day declare war against the United States. If such a power exist, it is not found in the constitution : it must then be a power reserved or inherently incapable of being surrendered. In the joint resolution of 15th Dec. 1831. it is declared to be a right inherent in a sovereign State, and that it has not been delegated by the States in this Union.” There is some confusion of ideas here. It is- singular to talk of a State’s delegating its right to secede. The truth is, the doctrine cannot get on without the word “ delegated,” which being used once negatively in the 10th amendment, is always substituted for “ ordained,” “ established,” “ vested,” &c. which are the-terms used in the constitution, where affirmative grants of power are made. The assertion then, really is, that the right to secede is'inherent in a sovereign State, and has not been surrendered by any State. Let us examine these two positions. That the right is inherent in a State, if that State retains all her sovereignty, I do not deny. Such a State must be in a “league,” and not under “ ágovernment.” It must be under “ articles of confederation,” and not under “ a eonsti-■tution.” Now if I have proved any thing, it is that South Carolina has parted with so much of her sovereignty as regards her interests common with the other States — that she forms part of a community, created by the social compact contained in the constitution of the United States, and is governed by the powers rested by it in the governmental departments of the -Union : and if all this be true, and the power to secede still exists, it is the power of a part to dissolve the community of the whole, to destroy the social compact, the sovereign and the government it has created. That such a right is inherent in any part of a common political community, other than as a purely revolutionary measure, 1 deny, and those who affirm its existence should prove it.
    When was it ever supposed that the social compact could be dissolved, but by mutual consent or revolution 1 That a sovereign community could be resolved into its original elements, but by consent expressed according to the stipulations of its association, or by revolution 1 By our social compact, by the constitution, which contains the terms of our associations, it may be dissolved by the consent of three-fourths of the States, not by the action of one.
    To prove that secession is not revolution, the advocates of it must shew that we are formed into a league, and that the States have not given up, but reserved, the right to dissolve the Union when they please, which they ordained, for the purpose .of forming a more perfect Union, than that which existed under the Old Confederation, the 13th Article of which declares that even that less perfect Union should be “ perpetual.” I admit that a league declared perpetual, may be dissolved by war, because it is formed between independent communities, whose citizens owe no allegiance but to their own State, and when captured must be treated as prisoners of war. The confederate who resorts to this measure, violates the compact, makes war, and taires the responsibility of being subdued by the action of the confederacy; but she protects her citizens from the charge of treason. For the proceedings on the part of the league must be carried on under the law of nations against the refractory member, as a State, and not against the individuals that compose it. But a government which ex vi termini, imports perpetuity, can be dissolved only by revolution. The unsuccessful attempt is treason, and those who are engaged in it are not regarded as prisoners of war, but as traitors. The action of the government in suppressing the attempt is under its own laws, against individuals, and not against communities. This is the distinguishing feature between a government and a league, the Constitution and the Old Confederation — the one acting always on States, the other on individuals; the one compelled to treat rebellion as war, the other as treason. Secession, according to this view, is rebellion, the actors in which may be treated as traitors, individually responsible to the government they have attempted to dissolve : and can be freed from this character only when success has constituted them an independent community.
    It has been supposed, that the sovereig-nty which excludes all allegiance to the United States, may be inferred from the right the State possesses to nullify any act of Congress, which she may deem unconstitutional. By this the State assumes the right of construing the Constitution, and authoritatively declaring its meaning, without the right of appeal. All the other States cannot reverse the decision— all they can do is to amend the Constitution, and assert the power which the State Constitution has denied to exist. This assumption of power constitutes the State a judicial tribunal, possessing appellate power over the supreme court, whenever that court declares a law of Congress constitutional, but not when it pronounces it unconstitutional, and prevents its execution. This is clearly a governmental and not a sovereign power. It might have been conferred on any department, or given to any State in direct terns, without conferring a particle of sovereignty. The possession, therefore, of the right contended for, proves nothing as to the question at issue, even if it existed.
    It cannot, hovyever, be doubted, that the sole object of the oath and of the Ordinance of 1833, is to force submission to the doctrine, that whenever the State declares a law of the General Government unconstitutional, she may resist it with military force, without committing treason, although every department of the General Government may have declared it constitutional; while, at the same time, she may subject to the punishment of treason all who support .the law nullified, whether citizens of her own or of another State, who may enter it for that purpose. This being the extent to which South Carolina has, at last, pushed her doctrine, I must enter my solemn protest against every part of it. I deny her right to nullify an act of Congress, under any circumstances, except when her aid is required to give it effect, and then the law becomes inoperative, only because she refuses to act, not that she can declare it void. But if the entire act can be enforced by the action of the federal judiciary, on individuals and not on States, the law must be executed, if the supreme court declare it constitutional, notwithstanding any decision of a State to the contrary. The law, if made in pursuance of the Constitution of the United States, is the Supreme law of South Carolina, and binds her notwithstanding the ordinance of her Convention, to the contrary. Such a law of Congress, if it pursue the Constitution, avoids all laws of the State, which are the acts of her government, and all constitutional provisions or ordinances of her conventions, which are the acts of her people, that conflict with it. And it does seem to me absurd to say, that such State laws or ordinances may decide whether the act of Congress pursues the Constitution or not, when they themselves may be void for conflicting with that act. Even after passing the ordinance of nullification, the fact is left doubtful, whether the law or ordinance is unconstitutional.
    To provide for deciding this question and all others of a similar nature, and to enforce among all the States an uniform rule of construction, as to the powers of the Government, was so obvious a consideration, that had no tribunal been established for that purpose, it would have been an imputation on the wisdom of as enlightened a body as ever met in deliberation on the destinies of any country.— The existence of the Union would seem to depend on it, and none could doubt, that without some such arbiter, the conflicting constructions of thirteen States, all capable of enforcement within their own limits, would leave the General Government, in a short time, a mere shadow, robbed by piece-meal of whatever power any State had denied it. It must have been foreseen, that unless a tribunal of last resort should be provided co-extensive with the United States, and operating authoritatively in every part of it, the powers of the Genera] Government would vary in every State. That such a tribunal has been provided I have no doubt. Whether or not it has been done in the' best, the safest manner, may admit of a question, which may be differently decided by honest minds. We are not enquiring as to the wisdom of the plan adopted, but we are en-quiring what tribunal, if any, the Constitution' of the United States has provided, which in the last resort, can compare every law of the Government, which can act on individual citizens, w’ith the Constitution, and decide it to be consistent with, or repugnant to it. If such a tribunal is provided, the power of construing the Constitution to that extent is “ delegated,” is “ vested,” and therefore is not reserved to the States respectively, or to the people.
    To decide what a law of Congress means, and to declare it inconsistent with the Constitution, is purely a judicial act. To call it anything else is ah abuse of terms. By the11st section of the 3rd Article of the Constitution of the United States, it is decided that “the judicial power of the United States shall be vested in one Supreme Court, and such inferior Courts as Congress may, from time to time, ordain and establish.” This is an express delegation of the judicial power, and negatives every reservation of it to the State.— We must next enquire, what is the extent of the judicial power of the United States. The second section of the same article settles this question in express terms — nothing is left to implication or doubt. “ The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States and treaties made under its authority.
    It would thus seem incontestible, that if ah act of Congress may be enforced by a judgment at law, or a decree in equity, against such as may be parties in court, the judicial power extends to it. But if it cannot be so enforced,-.then the judical power does not embrace it; and we must look further to decide where the power of construction resides, whether m some other department -of the General Government, or in the States as a reserved right. This distinction must be attended to. By the 11th amendment of the Constitution, “ the judicial power of 'the United States shall not extend to any suit in law or equity, against one of United StatesIf, therefore, a law of Congress or a treaty cannot be enforced, but by a legal or equitable decision against a State, she must judge for herself, whether it shall be enforced or not, and of necessity, she alone must decide whether tha law be constitutional or not. Here is a case where the judicial power, not being delegated, is reserved to the States respectively. And it is equally clear, that if the act of Congress or treaty may ho enforced by the judgment of the federal judiciary, against an individual, who may be made a party in court, the judicial power is delegated, and is not reserved to the States respectively. This view of the sub. ject points out the distinction between what are called political and legal questions, between those cases, where the judiciary, acting-against individuals, has exclusive jurisdiction, and those cases, where a State or some other department of the Government co-ordinate with the judiciary, must act, and whoso action excludes the jurisdiction of the Court. The latter cases may be regarded as polililicai ones, and thus defined, 1 have no objection to the use of the term.
    The judiciary, then, is exclusive in its power of construction on legal questions. It embraces no political ones. But the doctrine of nullification is, that a State may, at any time, at its own pleasure, declare a law of Congress operating exclusively on individuals, a political question, and thereby annihilate the exclusive jurisdiction of the Supreme Court over all legal questions arising under that law ; or in other words, that a State has power to declare such law inoperative within its own limits, and thereby withdraw all its citizens from the jurisdiction of that Court, who before were subject to it. If, in a State, this power of withdrawal exists in any other shape than as a revolutionary measure, when it has boen exerted it would be unconstitutional in the Supreme Court to attempt to exercise that jurisdiction, or else two contradictory antagonist powers may exist and be constitutionally exercised at the same time.
    The confederation was declared defective, because its laws had no sanctions but moral ones, and depended entirely, for enforcement, on State action. To avoid this radical defect, the Constitution provides a judiciary, having the power to construe the Constitution and the laws, and to enforce them by acting directly on individuals, who, by-express provision, are rendered amenable to its jurisdiction. Whence then does a State derive the right to withdraw all its citizens from their jurisdiction ? Those who affirm the existence of the right, must show whence it is derived — nor will it be sufficient to assert that it is inherent in the absolute sovereignty of the State, for it must be recollected that the existence of this absolute State sovereignty, is the very matter in dispute.
    But it seems to be thought necessary that a State should have the power, and thence it is concluded that it has it. For we are told that “ there is no distinction between a government of unlimited powers, and one which has an unlimited right to construe and enforce its own power as it pleases.” And the inference thence is, that without the right of State interposition, the Government of the United States has an unlimited power to construe and enforce its power as it pleas-' es, and is, therefore, a government of unlimited powers. This statement is incorrect in more than one particular, and, as an argument, proves nothing1. It does not state the- question fairly. Without State interposition, the government does not possess the unlimited right to determine the extent of its own powers ;• and I should hold his understanding of our federal system in low estimation, who would make such an assertion. The powers of the government, and the extent of those powers, are subject to the control of ihe people, who adopted the Constitution and who conferred these powers on the Government. If the various departments should assume powers not v'ested in them, by the action of three-fourths of the States those powers may be limited to the lowest extent. It is by the express provision of the. amending power, that this dangerous tendency to accumulate governmental power is to be restrained. Here is the specific remedy expressly provided — -yet we are told, that it being unsafe, another must be looked for, and is to be found in State interposition— not as a granted power — not as a reserved one, for it is delegated— but as a necessary one. This is but assertion, and is a total abandonment of the principle that delegated powers are not reserved ones.— It is the substitution of opinion of what the Government ought to be for what it is.
    Again, the assertion that the exclusive' right in the General Government to determine the extent of its own powers destroys all distinction between Constitutional and unconstitutional laws, is so far from true, that that distinction is preserved alone by the provision in the Constitution, which confers the construing power on the Supreme Court, and thereby takes it from the States. Had the power of construction been left in the States, the distinction between Constitutional and unconstitutional laws would have been utterly confounded by as many varying and contradictory constructions as there are Stated. To preserve this distinction, the judicial power has been vested in one Supreme Court. The guard may not be an efficient one — it may.be an inadequate protection to state rights — but when it is expressly vested, it necessarily excludes all state action on the same matter. The fallacy of the whole argument consists in assuming that a power is dangerous and not sufficiently guarded, not affording State rights sufficient protection, and thence concluding that the power has not been delegated. It supposes that the States, and not the federal judiciary, ought to have the right to determine the extent of the General Government, as the only means to protect themselves from federal usurpation, and therefore; that they have the power. They assume that the government of the United States is what they think it ought to be, and not what the Constitution has declared it to be. They draw their arguments not from the constitution itself, but from their own party views of what would be a government best suited to the state of things at the time the argument is advanced ; and this is the reason thai most of the prominent politicians, who now hold to nullification, as the “ rightful remedy,” were once the most strenuous opposers of that doctrine.
    If it has been urged, that the powers of the federal judiciary extend only to the decision of cases, and not to the establishment of principles, and that the power to construe the Constitution of the United States is a mere incident to the pojver of adjudicating between individuals, the admission of the truth of all this would avail nothing, unless it would bo shown that a necessary incident to a granted power, still remains undelegated, and therefore reserved. But the doctrine cannot be admitted, that the power in the Supreme Court to construe the constitution and to declare the extent of the powers vested in the Government, is merely incidental. It may be so in all inferior tribunals. Thus a justice of the peace, or a distinct judge, if he has to act judicially on a matter involving a Constitutional question, must decide that question, only because he has to decide the case. So a State, when it has to act to give effect to a law of Congress, which cannot be enforced by the judiciary, must decide for itself on its constitutionality: and another State having the same right and being required to perform the same duty, may make an entirely contrary decision, yet each construction in the particular case must prevail, because there is no common supreme tribunal appointed to settle the principle. But where a tribunal of last resort is appointed with full power to compel all inferior tribunals to conform to the construction which that Court has declared, the very object and end of its creation is construction, and the only power conferod on it is that of expounding the law submitted to its jurisdiction, and enforcing that exposition by compelling all other tribunals to conform to it. Now the Supreme Court has this power expressly vested in it by the Constitution, in all cases where the act of Congress imposes a legal or equitable obligation on individuals, requiring no aid from a State to enforce it; for nothing else can be meant by the provisions of the Constitution, which declares, that the judicial power shall extend to all cases in law and equity, and shall be vested in one supreme court, &c. The authority for declaring the extent of the powers of the General Government, in all cases of legal and equitable cognizance arising under the Constitution, is, therefore, expressly vested in the judicial department of the government, and is not reserved to the States respectively. A supreme tribunal of last resort would be an useless incumbrance, if the exclusive power to enforce an uniform rule, on all matters within its jurisdiction, were not granted to it, and would cease to be supreme, if that rule might be reversed by one of the component parts of the community, of which it is a department. It is only subject to the controul of the sovereign power of the country, which may declare a different rule, only by amending the Constitution, but which cannot judicially reverse the decision it has made.
    When it is urged, that the supreme court may decide cases, but cannot settle principles, I again ask, if that court must decide all cases, in law and equity, against individuals, who can settle the principle in any case differently from what that court has settled it ? I do not believe any person will hazard the assertion that this may be done. So that the question again recurs, can each State in the Union, when it pleases, withdraw some of these cases from the jurisdiction of the federal judiciary 1 If this may be done, then that which is a perfect power over all cases under an express grant in the Constitution, may be taken away in some cases, by a State, although that State has no powers but such as are not granted to any department of the General Government. This clearly shews, that nullification cannot be resorted to, for avoiding an act of Congress, which can be carried into execution by the action of the judicial powers of the Union, on individuals, but as a revolutionary measure.
    
      It has been asserted that a State has the reserved right to declare an unconstitutional law void, because, it is said that such a law is not made under the authority of the United States, and therefore, the judicial power does not extend to it. The difference of language in the provision, which declares a law supreme, and that which declares the extent of the powers of the Court; will shew that there is nothing in this attempted evasion of the judicial authority of the Union. In the former case, the expression is — “ Tins constitution and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.”— In the latter, this is the expression. “ The judicial power shall extend to all cases in law and equity, arising under this constitution, and the laws of the United States and treaties made, or which shall be made, under their authority.” It will be seen, that in declaring the extent of the judicial authority, the words “ in pursuance thereof,” are omitted — and, evidently, for no other reason, than to leave in the supreme court the power to'decide whether the law is in pursuance of the constitution. If we look to the course of judicial proceeding, we shall at once see, that if a right is attempted to be sustained in Court, on an unconstitutional aqt of Congress, the question must be made, which the court must decide, whether that act is void or not, and presents a case, “arising under the constitution,” and a case in law too, since that constitution is declared to be the supreme law. '
    It is a favorite part of the nullification theory, if not the foundation on which it once rested, that the amending power of our government might be called into action by State interposition. — That whenever a State should give to the Constitution a construction which would avoid a law of Congress, that construction should prevail, and the law become inoperative within the limits of that State, until the power to pass such law should be restored, by three-fourths of the States declaring that Congress possessed it. — That when such de-. duration should be made, the law would become constitutional, and IherState must submit to it. — How such submission would comport wit* the exclusive sovereignty of the State, that acknowledges « no earthly tribunal above its authority,” we were not told. But the doctrine then was, that State interposition was the legitimate means of calling into action the amending power. Now, if the Constitution of the United States has provided another mode of bringing into action this power, it would seem to negative the one claimed for each State.
    But such other mode is expressly provided. It must be done by two-thirds of both Houses of Congress, or on the application of the Legislatures of two-thirds of the several States. What two-thirds of the States may do, under the Constitution, South Carolina claims the reserved right of doing by herself. The express grant- of the power, then, must be construed to leave the power, not “delegated,” and « reserved,” or this doctrine is not true.
    The only sembance of an answer that can be given to this view of the subject is, that the power of the State may be concurrent, in this respect, with the two-thirds of Congress and of the State Legislatures. That a State may have concurrent powers with the departments of the General Government, is admitted. Thus the State may impose direct taxes, and so may Congress; a State might have coined money, but that the Constitution prohibits it. So she might have naturalized aliens, but for the negative implied in the provision that the rule shall be uniform. In all these cases, she had these powers before the Constitution of the United States was formed, and now holds them, except where the exercise of them is expressly prohibited, or is incompatible with some power vested in the General Government. But in those cases where the power has been created by the Constitution itself, and can have no existence independent of it, it cannot be concurrent in a State, unless the Constitution makes it so. The power to call into action the amending- authorities of the Government, is dependent on the Constitution for existence, has been vested expressly in Congress or two-thirds of the State Legislatures, has not been given to the individual States, and cannot, therefore, be concurrent in any one of them. This distinction is the basis of the tenth amendment of the Constitution. The “ delegated ” powers, there, have reference to such as came into being with the Constitution — the “ prohibited,” to such as the States would have held, but for the prohibition, independent of the Constitution.
    To conclude, if South Carolina, then, be exclusively sovereign, she is so, notwithstanding she cannot declare war, nor make peace — form a contract with a co-state, or make a treaty with a foreign one — Sx the standard of her own currency, nor coin money, nor regulate her own commerce; nor in any way change the depositories of these powers, nor any other power of the Government of the United States. — She is so, notwithstanding she cannot make her own government what she pleases — but if she creates a nobility or establishes a monarchy, her act may and must be reversed, unless the United States fail to enforce the guaranty of a republican government. — She is so, notwithstanding many of the powers of her own government may be delegated to the General Government, under the amending power in the Constitution of the United States, without her consent — and notwithstanding any amendment of that Constitution may become the supreme law of her land, against her consent. — -She is so, notwithstanding her citizens are the citizens of another political community, having a government, under a constitution or social compact, which they may be bound by oath to support, and against which they may commit treason. If 1 ha ve not proved all this, I have failed in my argument — but if I have, I would ask what truth there is in the assertion, that South Carolina recognizes no tribunal an earth above her authority!
    I believe I have now shewn, that the military oath, unsupported by the Ordinance of 1833, is a violation of the State Constitution, because it destroys that equality of rights which is beyond the control of the Legislature — because it makes an exception to the right to hold office, where the Constitution has made none; and because it introduces a new mode of trial, in cases working a forfeiture of the privileges of the citizen, which the Constitution has prohibited.
    I believe 1 have now shewn that if the military oath has been passed under the authority of the Ordinance, that act of the Convention is a violation of the Constitution of the United States, and both Ordinance and law must fall together.
    In the argument I have stated my premises, I believe, truly, and I believe I have drawn the conclusions from them correctly, and under this conviction my appearance in this Court has been a matter of duty ; I should have disregarded the oath 1 took, when I was admitted to practise before it, “ to preserve, protect and defend the Constitution of this State and of the United States,” had I withheld my professional aid from the support of this cause.
    MR. (SOLICITOR) PLAYER’S ARGUMENT.
    Mr. Player said, That as the opinion' to be pronounced by the Court, upon the application before them, must materially depend upon their interpretatioh of the oath required by the military bill, the definite import of that oath became an important preliminary to such ulterior questions as might, in this matter, arise for their decision.—
    He held the tie of allegiance to be exclusively of feudal origin and import. He should, nevertheless, not appeal for an exposition of its distinctive character, or of the peculiar obligations incident to it, to the often cited case of Calvin. For he believed that there was little difficulty in showing, that the principles set up by that decision — - the principles, that the King was the Lord’s annointed; and that allegiance was. due to him, personally — were utterly at war, not only with the opinions of the most eminent authorities in feudal law, but with the most positive history, and with the very foundations of the actual institutions .of that country, to whose jurisprudence this case belongs. Indeed the ignorance (now generally admitted) of Lord Coke, in feudal law and history, made it, for hurt, but a question, whether it was not unnecessary to refer to the opinions of that .celebrated Judge, in a matter that could only have been justly settled, by a species of learning that he did not possess; by the developement of sounder principles, as to the basis of royal authority, than the age had yet attained ; and the final establishment, in the English Government, of doctrines of popular right, that were, in Lord Coke’s time, scarcely dreamt of — doctrines that have changed the whole face of that temporary and false order of things, upon an exceedingly narrow and servile knowledge of which the jurists of the time of James I argued.
    Let these doctrines of Lord Coke, however, consist as they may, with the opinions of feudists far more eminent, and still the subsequent changes of the English constitution inevitably strip those opinions of all authority, because of all applicability, in this case.— I cannot better nor more authoritatively convey the effect of those changes, than by the assertion of that eminent whig statesman, Lord John Russel, who declares, “ that the terms on which, after the expulsion" of the Stuarts, the House of Orange was brought in, neeessarily established the fact, that allegiance became due to the government, not the person, of the King; and rested that obligation upon the basis of popular appointment and consent; so that the very doctrines, for the assertion of which the Spencers paid with .their lives, were consecrated by the terms of the succession which ensued upon the revolution of 1688.” (See Russel on the British Government, p. 112.)
    It was. at this point, (Mr. Player said) that the difference began between the opinions of all those who had preceded him in this argument, and his own. By all of them it had been conceded, that the obligation of allegiance, under the feudal law, was paid to the King, as the supreme head and fountain of all political power. He, on the contrary, contended,-that this acknowledgment was never made to the monarch, in any other character than that of chief Feudatory, or Lord, of the Fief or domain; in other words, as possessing, in his quality of Lord paramount of the Soil, the granting of all the lands in the Kingdom — their escheat, or ultimate reversion, upon intestacy or failure of issue inheritable — and the further power of appropriating them to public purposes, in virtue of his right of Eminent Domain.
    That such was, under feudal law, the correct holding of the relation of allegiance to the King, would be easily seen, in the authorities cited by that most judicious and learned of feudists, Du Cawoe, in his Glossary, at the title Leoius — as, likewise, by his own definition, in the following terms: “Allegiance, the faith which is due from the vassal to the Lord of the Fief.”
    To a like effect is the following: “ The whole Kingdom (of England) under William the Conquoror, was united in one extensive Barony, of which the King became the superior, and in some measure, the ultimate proprietor.” (Millar on the’English Government, vol. 2, p. 17.)
    In Blackstone’s Commentaries, vol. 1, p. 366, it is said, “In England, it becoming a settled principle of tenure, that all lands in the Kingdom are holden of the King, as the sovereign or Lord paramount, no oath but that of fealty could ever be taken to any inferior Lord ; and the oath of allegiance was necessarily confined to the person of the King.”
    “ To acquire,” says Millar (vol. 2, p. 16) to their estates, protection from the rapacity of their neighbors, those who did not hold their fiefs of the King, became anxious to do so. — They found, in a' word, that it was expedient for them to resign their allodial property, and to hold their estates by a feudal tenure, as vassals of the crown.” “ The Barons dispensed justice within their respective fiefs ; and, as incident to his character of chief Feudatory, the government fell into the hands of the King.” Idem. vol. 2, p. 84. “ He,” says the Encyclopedia of D’Alembert and Diderot, “ who was under the military power, was under the civil power.” (Title Fief.) Of all which, the amount is, that, as chief Feudatory or Sovereign, the King dispensed justice, and received allegiance from his vassals.
    But the allegiance thus acknowledged is in no sort equivalent to an avowal of political supremacy. For the term “ Sovereign,” in the feudal sense, means nothing more than “ suzerain — a lord that possesses a fief on which others depend.” (Encyclopedia of D’Alembert, and Vocabularie de Wailly, ad vocem.)
    Indeed, so little was allegiance paid to the King, as supreme head of the government, that Du Cange adduces many instances in which it was acknowledged to persons possessing not the slightest attribute of political supremacy. Of those, a few examples are all that 1 need hero cite. “After the homage, the fealty and allegiance, which he owed to the noble barons, the Duke de Loherne, and the Count de Soul.” (Charterlary of Champagne, anno 1203, apud DuCange, supplement, Title “Legius.”) In anotherdnstance, one owns himself the liege-man of a Countess and her son. “ 1, John of Tulla, malte known that I am the liege-man of the' lady Beatrice, Countess of Treves, and of my dear lord, Theobald, Count of Champagne, her son, against every creature that can live and die.” DuCange, Tit. Leg-ius. The same authority says, expressly, that allegiance is sworn to other liege-lords than Kings. Had it been acknowledged, as Council have asserted, to the supreme power of the State alone, the allegiance, in the instances above cited, would have been acknowledged to the King of France, not to the Duke of Loherne and the Count de Soul, in the one case, nor to the Countess of Treves, and the Count of Champagne, in the other. Why the acknowledgment properly took the latter form is apparent, when it is considered that these nobles were the lords paramount or suzerains; which capacity did not, in the above instance, coalesce with the supreme power, and so draw after it, as its incident, allegiance to the King.
    1 trust (said Mr. P.) that those instances will be held to establish, that Allegiance was due to the King, only when the power of granting the soil and the right of its reversion, were in him; and that whether vested in prince or peer, it followed these powers over the soil, as an incident inseparable from them. And thus still more strongly, the Encyclopedia of D’Alembert says, of this proprietary character of the Government, that the Domain resided in it; and that of it, not of the King, the Lords held their fiefs: that, in like manner, in Germany, they hold of the Empire, not of the Emperor; and that so the English nobles were styled Peers of the Realm.
    
    Further to prove that the citizen’s lands are held of the State, as supreme Feudatory, and that his Allegiance is due to it, in this capacity, Mr. P. referred to the act of 1712 (Brevard’s Digest, I. 299 : Title English Statutes) in which among the enumerated Acts, is adopted the Statute 12. Charles II. ch. 24 ; which according to Blackstone (II commentaries, p. 78) merely abolishes the Military or oppressive services of the Feudal Constitution, but expressly reserves the tenure of socage and Frankalmoign, the honorary service of Grand Sergeantry, and the tenure by' Copy of Court Roll. “ Nay” (says he) “ all tenures in general (and among them those above enumerated) were reduced, by that Statute, to one general species of Tenure, then loeil-lmown and subsisting, called Free and. common socage.”
    
    By the express adoption, then, of this statute, South Carolina directly adopted the tenure by Free and common socage ; a feudal tenure, which is thus described by Beacton (apud Blackstone’s Commentaries, II. p. 79.) “ If a man holds by a rent in moneij, without any escuage or seargeantry, that tenure can be called so-cage.”
    
    The payment, to the State, of taxes, is an acknowledgement, by the citizen, that he holds of the State, by this “ Rent in money,” or by “ free and Common Socage. It admits what is, in effect, enacted, by the Act of 1712 — that the State, of whom these lands are thus held, in Socage, by its citizens paying this “ rent in money,” occupies, towards them, the condition oí chief Feudatory or Lord Paramount of the Domain.
    Of this feudal tenure by free and Common Socage, thus adopted by express Statute, Kent says (Commentaries m. p. 511) that the Oath of Fealty is a direct incident: which fealty he afterwards interprets (p. 512) to be synonymous with Fidelitas ; adding expressly, that, with it “ lands, held in socage tenure, would seem, in theory, to be chargeable.” Habgrave, in his note to Coke Lyttleton {Lib. u, no. 13) says, “ that the Title to Fealty still remains, though it is no longer the practice to enforce its performance.” Lord Hale, however, says, in substance (Pleas of the Crown, x. 67) that Fealty is the tie existing between the vassal and a mesne lord : but that, where the land is held directly of the lord paramount, the fidelitas or fealty, becomes Allegiance — fealty, always containing the reservation “ salva fide et ligeantia domini regis,”.a reservation which of course disappears, when the fidelity is pledged to the lord paramount: and thus the faith due by tho citizen to the State, as the Lord paramount'of whom he holds, by this feudal tenure, is shown necessarily to be, not mere fealty; but, as Lord Hale says, the fealty without reservation, which is paid to the lord paramount only, and which is proper Allegiance.
    Mr. P. went on to establish the continual subsistence of this feudal tenure, and of the Allegiance incident to it, by the following facts.
    That in the original charter of 15 Charles II, erecting the colony of Carolina, “ Faith Allegiance and Sovereign dominion” are expressly reserved to the King ; the grant of the lands to the lords proprietors being, in terms, under the tenure of “free and common Socage.” {see Trott’s Laws, XXIII.)
    That to make these terms in complete conformity with tho practice under this mode of tenure, a nominal rent of twenty marks yearly, forever, was expressly m the charter imposed upon the Lords proprietors. {see Trott as above.)
    
    That the second charter, of 17th Charles II. enlarging the former grants, still retains the same reservations of Allegiance, and prescribes the same mode of tenure, with the same yearly recognition of the lordship, by the payment of a stipulated. Rent, (see Trott, XXXV.)
    [The learned counsel here interrupted, for a moment, the citation of these proofs, in order to beg the court to remark tho general terms of these original charters; which would be seen to have invested the Earl of Clarendon and his associate Lord proprietors with the completest political power over the Colony ; with the right of granting constitutions, making laws, establishing Courts of Justice, appointing all civil officers, raising taxes, maintaining troops, making war, declaring Martial Law, giving Liberty of conscience, &e. &c. {see charters, passim, Tkott, XXI to XLIV.) The King, in a word, reserved nothing but the general domain of the Lands ; and this alone was held sufficient to entitle him to the sole right of Allegiance. He then pursued the deduction of his proofs as follows.]
    But the Allegiance, thus reserved, was formally acknowledged, by the Lords Proprietors, in the Constitution which they established ; where an oath of Allegiance to the King, and of Fidelity to the Lords Proprietors, is prescribed, (see Locke’s Works, vol. X. p. 197, 8vo. edition of 1801) : - ,
    And that like oaths of Allegiance were enacted, by the authority of the Proprietory Government, undewthe reigns of William and Anne. (see Tkott, pp. 63 and 108.)
    That the surrender of the original charters,' by the Lords proprietors, under the parliamentary Act of '2nd George II, divested the Lords of all that had been granted them, as to the Government of the province, and replaced the ordinary authority over it, where was already the supreme domain, in the King, (see it, in Teott, p. _483.)
    Upon this basis the right of Domain, with its incident, Allegiance, must be admitted to have reposed, until the formal assumption, by the people of this State, through their provisbagLAOvernment, of all the powers and rights over the people aJSi^^our^ich had before been held by the King. This wasjtef^bi^A^JjSmrch, 1776, by the establishing a regular constijatmn^ditíovernmenL
    The acts of general Bovgj/ewg&f, under thesdj.were accompanied by the repeated exercise ofghWpower OTi(ÍTO'Joil, |p which, as the successors of the Kingly gov^imer^jJtn^State had regular title. One of the earliest acts of the nAyVmeftiment wmi-f&e declaring forfeit to the State the lands of all sapn personscg^JwmdAbe convicted of seditious attempts against the%ewly GovgjÉment. (see Act. of 11 April, 1776. Gkimke’s y¡¡d>W&%aws.')
    
    The incidental right to Allegiá8s%¡Hsa!ÍSff$B®'as distinctly assumed, by formal act, on the 13th February, of the next year; when an oath of Allegiance and Abjuration was adopted, of which the title may be seen in Grimke (Public Laws, LVI), in these terms : “An Ordinance for establishing an oath of Allegiance and Abjuration.” It contained a direct acknowledgement of Allegiance, in the following terms :
    “ And Í do further sioear, that I loill bear faith and trite Allegiance to the said Statb.”
    
    The act of January, 1787, re-affirms the “ sovereignty, freedom, and independence of the State,” as set forth in the Ordinance of 1777, just cited; and abjures, as before, Allegiance to the King of England. This act continued in force, until the adoption of the State Constitution of 1790 : a period at which the right of domain was no longer disputed by the only other power that had ever claimed it — namely the English King — and when, therefore, all necessity of exacting the declaration was supposed to have ceased.'
    The right of Domain having thus enured to the State, in virtue of her assumption of sovereignty, in March 1776, she then became invested, for the first time, with her character of suzerian, sovereign, or Lord Paramount of the soil — terms which I have already shown to be convertible. It was now, for the first time, that the grantee was enfeoffed by the ordinary administrative government — that of the Lords proprietors having no such power; and it was now, also, that Allegiance was first acknowledged to the State, as it had been, under the Proprietary government, to the King, in whom the domain had then rested, and by whom all grantees had then been enfeoffed. It is scarcely necessary that I should further state, that, since, as before, the state’s assumption of sovereignty, grants still follow the terms of the statute of Charles II, establishing the socage tenure — a statute vvliieh was made of force, in South Carolina, in 1712; and which, unvaried and unrepealed, still makes the foundation of all tenure of lands, in this State: nor can any thing be argued, in law, to be capable of changing its legal consequences and incidents, except a direct exclusion of them, in express terms, which no one can pretend to shew.
    These, said Mr. Player, are the grounds, upon which I rest the right of Allegiance, as the State’s, and hers alone : not idle deductions, laboriously drawn from empty or ill-established premises ; hot vain and super-subtle inferences, from things impertinent or nugatory ; not strained constructions of inapplicable texts of an imaginary organic law but facts, high, clear, simple, capital; incapable of dispute, as to their authenticity, or of doubt, as to their legal consequence. If History have any thing of settled, these things must bo considered as well-ascertaine'd. If antiquity and uniformity of precedent can make any thing venerable, or soberness of reason command regard, I claim them, for the great facts, to which I have appealed, and for the obvious and inevitable legal results, to which, in the argument, I have strictly confined myself.
    Nor has this natural and easy interpretation of the State’s right over her citizens been left without ample corroboration, in the concurring practice of other members of this confederacy. Maryland, New Hampshire, Massachusetts, Vermont, Kentucky, Georgia and New York, have all, by their constitutions, exacted, of their citizens, direct declarations of this duty of Allegiance to the State: and, in the jurisprudence of the last mentioned state, that eminent judge, Chancellor Kent, has distinctly affirmed, that “ the Lord Paramount of all socage land is none other than the people of this state ; and to them, and them only, the duty of Fealty ought to be rendered.” (3rd Kent’s Commentaries, p. 408.) He afterwards interprets (p. 410) this fealty to be the same with fidelity, and the origin of the obligation of Allegiance.
    To close this phalanx of legislative precedent, the Congress of the United States, in carrying into effect the power given it, by the Constitution, o£ establishing “ uniform rules of Naturalization,” has merely exacted, of the Alien, abjuration of his former Allegiance. No new obligation of this sort, towards the General Government, is demanded of him. I am not prepared to assert that non-claim, on the part of a Government, works a forfeiture of its rights. But the failure to require the acknowledgement of an obligation so important, certainly furnishes a presumptive admission, that Congress did not hold itself to possess the right of exacting it.
    It is true, that they have enacted such oaths for the officers of the Army and Navy of the United States. But the exercise of this very doubtful power seems to have remained, in this single case of its assumption, unquestioned, because there seemed here a sort of necessity, if not a law, for it. And, at any event, the conditions of receiving its bounty, which a government may choose to exact of its hired stipendiaries for Butchery, form no evidence of the rights which the same government supposes itself to possess over those who arc not its hungry dependants for subsistance.
    To these views, the counsel on the other side attempts to oppose the following grounds :
    
      1. That Allegiance, in the Feudal sense, is an arbitrary and servile relation ; whereas, in a free State, there can be none but conventional obligations from the citizen towards the government. These will constitute his Allegiance; and, as the citizen is here under a double contract, that with his State cannot be (as' the Legislative Convention have held) paramount and exclusive.
    2. That this Feudal interpretation of Allegiance is incompatible with civil liberty, in general; and with our own institutions, in particular.
    3. That Allegiance properly springs from Protection ; and is therefore due, by the citizen, to the United Stages, in return for the protection afforded to his State.
    4. That, as a new duty added to the enjoyment or exercise of a constitutional right, it operated a restriction upon that right; and was therefore void, unless passed as an Amendment to the Constitution.
    To the 1st objection, the interpretation of Allegiance which I have endeavoured to establish, is answer enough. If it be merely the faith which the citizen otees to the State, as the great proprietary of the soil, then can there clearly be no power capable of disputing her paramount and exclusive title to this obligation; and with this obligation, the Constitutional one, of obedience to both governments, will present nothing in any sort repugnant or inconsistent. The latter is a totally distinct obligation.
    If, on the other hand, it be pretended, that either the Legislature or the Convention has attempted to impose this duty, m any other sense than its feudal one, that is a point not to be established unless by distinct proof. No evidence of it has been, nor can be adduced.
    To the 2nd objection he should reserve his reply, until he came regularly to encounter it, in discussing his 4th ground of appeal.
    As to the third, the counsel for the relator not wishing to expose too many vulnerable points at once, had forebore to assert any direct protection from the Federal Government to the citizen. He had taken what he apparently deemed more defensible ground — namely, that protection was rendered to the State, by the General Government, in the case of external or internal aggression ; and that the citizen, in return for this protection of the body politic, came under the obligation of allegiance to the General Government.
    • Was the learned counsel not aware, that the instances are innumerable in which nations, perfectly independent, have thus, by positive compact, placed themselves under these obligations of mutual protection! According to him, every league, offensive and defensive, between two States, would alienate a part of the allegiance of the citizen of either to the other, contracting with it for their common defence. Or take the case of the Holy Alliance; where the league of sovereigns is bound to protect each of its members from attack by any power not a party to the treaty. Will the learned counsel gravely argue, that the protection here lent to Russia, transfers the allegiance of the Cossac to the Germanic Emperor, or to the Prussian Monarch ? Or that the subjects of these, in their turn, contract a new obligation of fidelity’to the Czar? or that the subjects of each become the liege-men of all ? Such would be the inevitable issue of the gentleman’s principles.
    
      If be object (I cannot see on what grounds) to instances drawn from despotic governments, I will give others, out of systems of republics. Under the league (called that of the seven United Provinces) which erected over the States of Gueldres, Holland, Zeland, Utrecht, Friesland, Overyssel and Groningen, a Government, charged with the common defence, each province was always de jure and de facta, free and independent, and just as much in possession of all her original rights over her citizens (allegiance included) as if she had never become a party to the Confederacy.
    In the Hanseatic League, part of the cities composing it were free (as Hamburg, Bremen, Lubeck, &c.) and part absolutely subjects of monarchies — as Konigsberg of Denmark, Bergan of Norway, London of England, Lisbon of Portugal, Bordeaux of France. Yet did it ever enter into one’s head to maintain that this league placed the free cities under allegiance to the subject ones, or took that of the latter from the monarchies, of which they were parti
    But the case of the United Swiss Cantons is a still more striking instance in such confederacies, of the independence of the parties as to every thing not within the compact. They maintained a common Government, for specified purposes; and were protected, in common, by it, against all attacks from abroad. Yet wars between two of the Cantons have repeatedly happened; and, as each Canton hires its troops to any King that it pleases, it has often chanced that, in the battles of the European Monarchs, Swiss troops have been opposed to Swiss troops, in the contending armies.' How will the gentleman solve his mode of allegiance in these cases 1 Will he say that the Swiss owed one allegiance, when fighting together against a common enemy, and another, when fighting each other, at home, or in the armies of foreign princes ? He would have the citizen of Geneva bound, to-day, in the commune vinculum of a joint allegiance, with the citizens of Berne and Lucerne ; and, to-morrow, compelled by the same tie, to cut their throats f
    <-Can such things he,
    And overcome us, like a summer cloud,
    Without our special wonder?”
    Thus, too, in the Amphietyomc league of the ancient Grecian States, there was a general council, that had it in charge to provide for the common defence against external enemies. To protect the individual States, through the joint strength of the confederates, against foreign invasion, was the very purpose and effect of the league. Upon the counsel’s principles, allegiance to the common source of this external protection, must have arisen; and yet whoever supposed, that while Thebes and Lacedemon or Athens were waging upon each other those frequent wars, in the midst of which the confederacy continued as before, the general league bound up the hands of their citizens in fetters of allegiance, which converted the war into a revolution or a rebellion?
    These instances, and a multitude of others by which I might confirm them, render it clear that the principle recognized in Calvin’S case, that “Protectio traMt Subjectionem, et 8vijectio,proteclionem,” is only true as a civil, not a political maxim. The inquiry then arises, for what protection, as to his civil rights, is the citizen of South Carolina indebted to the federal government 1 If his life is threatened, his liberty • assailed, his property invaded, to what government does he look for redress 1 To that where he has laid his hearth-stone and set up his household gods — to the government of the soil. If he ever sought admission into the federal courts, fof reparation .of injuries which had been made, by international agreement, proper to that tribunal, what did it imply, except that the States, by a national courtesy, had reciprocally invested the citizens of each other with the rights of Alien friends 1 'no more.
    In conclusion upon this point, he stood upon all the highest authorities of national law, in laying down this principle: that general and external, or political protection, was never held to diminish supreme power, in the state coming under it; both because it is a merely temporary connexion, suggested by momentary expediency, varying with it, and so, continually subject to the discretion of the power that formed it; but likewise because it leaves that power in full possession of all those ampler, minuter and' more constantly-acting functions, from which the citizen derives the great mass of protected rights that he enjoys.
    _ Not even tribute, (which has always been held as far more degrading than Protection) has ever been considered as impairing the political supremacy of a State. It only derogates from its dignity — by no means from its Righta, either as to other nations, or over its own citizens. England, Franca, and even the United States, have paid tribute to Tunis, Tripoli and Algiers. .Charles II was a regular stipendiary of the French King. England, during the continental wars against Bonaparte, subsidized half Europe. And the learned counsel on the other side will surely h&ve read of the famous free-booter M’Gregor, who, for many years, levied black-mail over all the lowlands of Scotland.
    It is said, however, that as the oath adds a new duty to the enjoyment and exercise of the Constitutional right to take office, it operates a restriction upon that right, and is therefore void, unless passed through the requisite forms for a Constitutional amendment. Admit the postulate, and the consequence is inevitable. _But to say the least, a position at war with the whole current of established principles, is not to be admitted to the courtesies in debate, that áre usually accorded to a self-evident proposition. Mr. Player said, that he would, of course, not be mistaken as fending off the “ cheese parings and candle ends” of a licentious press; but in grave debate, before a high judicial tribunal, he would venture the assertion that before the hearing of this cause, the proposition had never, been deliberately, advanced, and if assumed, had not been seriously entertained, that an acknowledgment of allegiance by the citizen, involved the performance of a new duty. Indeed, the elementary writers are clear and concurrent, that the oath is a mere ceremony of acknowledgment, the observance or non-observance of which will not vary or effect the obligation of allegiance ; and that as a necessary consequence of this principle, no non-juror can divest himself of the duty, by a refusal to perform the ceremony of acknowledgment. If this be so, the duty must bo hold to have a precedent existence to the oath, and not to bo created by it. But admitting that the oath does exact the performance of a new duty, the further questions arise — 1st, whether it is competent to the relator to avail himself of the exception ; and 2d, Whether, admitting its competence, the Legislature may not exact the duty by a simple act concurrent with the Constitution 1
    As to the first question, the principle is undisputed, that rights which have vested under the Constitution, cannot be disturbed or impaired by any less authority than the Constitutional revocation of the clause upon which they depend — (subject to which general power of revocation, they must be understood to vest;) but he, Mr. Ib, regarded it as not less clear, that before such rights had vested, it was competent for the Legislature, acting through its ordinary forms, and exercising its ordinary functions, by simple act, to impose new conditions not repugnant to those contained in the Constitution ; and that a right permitted to vest with a knowledge of such conditions precedent, would be held to vest subject to them, and charged with a tacit assent to their validity. In the case before the court, the right vested after the passage of the act of the 19th of December, but prior to the exceptions taken by the relator. It is too familiar a principle of the tenure of office, to be established by formal reference to authority, that the right to its enjoyment results from election, and that the commission is mere evidence of that right. Jf the right to office in this cas.e, then, vested by election, it vested subject to the provision of the act, and furnishes a tacit and voluntary acknowledgment, by the relator, of the validity of those provisions, which it docs not lie in his mouth to impeach, and which this court will not consent to hear in this form of proceeding, unless the provisions of the act are plain and manifest infractions of the Constitution.
    This, Mr. P. said, brought him to the question, whether the oath, in the act of the 19th December, was necessarily in derogation of the oath in the 4th Art. of the Constitution, from the fact of its having been passed by a simple, instead of a constitutional majority. In other words, whether, in the operations of government, these majorities might concur in their action upon the same subject matter, or whether the action of the organic majority, to the least extent upon any subject, so exhausted it as to exclude the concurrent action of the simple majority. This, said Mr. P., involves an enqui-ry into the distinctive and characteristic properties of these majorities respectively. If they are in their very nature, necessarily repugnant, and their action inconsistent, the action of the former will of necessity bar the interposition of the latter. Majorities which are conflicting in their essential properties, never can be concurrent majorities, and in their conflict the subordinate power must be destroyed, and its acts rendered nugatory. But if on the contrary, they are homogeneous and not heterogeneous in their properties— and if the inferior is not brought in conflict with the exercise of the superior power, they may coalesce on different portions of the same sutgect, as concurring majorities, acting to a common intent or object, but not performing the same act.
    He said he would illustrate his position by the case in point.
    The' 4th Art. of the Constitution of the State had prescribed an Oath to bo taken before entering upon office, — the Act of the 19th December had prescribed another, — lbs position was, that unless the power to exact Oaths was exclusively an organic power, the Legislature was not concluded, by simple majorities, from exacting Oaths not repugnant to that required in the 4th Article of the Constitution. Was the power to exact the taking an Oath, he would then ask, an organic power exclusively 1 And here he would observe that the right, in the General Assembly, to legislate by simple majorities, being a general grant in the 1st Art. of the Constitution, the only valid restriction upon such grant must be by express negative, forming an exception. As to this subject there was no such restriction, and we are therefore remited, for the solution of the question, to the original inquiry, whether there is such repugnance in the properties of Constitutional and simple majorities, as to prevent their concurrent action as to unoccupied portions of the same subject matter ? He would admit it as an. established law of powers, that the superior must always merge the inferior in a common act, where they coalesced, and destroy it whore-they conflicted. But their action upon a common subject was not necessarily a common act, in as much as there might be portions of the same subject unoccupied by. either. The exaction of Oaths was as infinite as the sphere of civil and political obligations ; and it followed that as to one class of obligations, the organic power might be exerted, and as to the other the power of simple majorities might be employed, and that, moving in their distinct spheres, they would never come in conflict. The obligation to preserve, protect and defend the Constitution, being an obligation to support the organic law, its acknowledgement was properly exacted by that; but the obligation of allegiance being founded in a civil and not a political relation to the state, as I have before shown, was properly exacted of the officer or citizen by the simple majority; and the action of the two majorities being pari materia, the obligations exacted by each, mig’ht stand concurrently, provided there was no necessary repugnance in the obligations themselves. Were the obligations repugnant or were they not 1 If, said Mr. P., I have rightly interpreted the obligation of allegiance, the question is at an end; for however high and sacred may be the obligation to preserve the Constitution either of the State or of the United States, it never can come in conflict with the obligation which, as leige man, the citizen owes to the State, as lord of the domain. .
    As long as that interpretation remains, the argument is impregnable, unless the ground be established, that the majorities by which the distinct Oaths are exacted, are heterogeneous in their properties, from the principles upon which they are respectively organized, and from that fact, excluded from harmonious action upon even distinct branches of a common subject. The principle upon which the organic majority and the simple majority is organized, is identical. The principle of expediency, established and recognized by the people in convention, and the regulated forms through which their respective functions maybe exerted, are prescribed by the Constitution; and the fact that both majorities are recognized and established in the organic law itself, to operate in their respective forms, upon their distinct spheres of action, is sufficient to shew that there is no necessary repugnance, either in the common basis upon which they repose, or the functions appropriate to each, which will prevent them from standing together, and acting concurrently upon the class of obligations appropriate to each.
    The counsel for the relator, (Col. Williams) to prove that the act of December, 1833, and the 4th Art. of the Constitution, cannot concur 'in prescribing distinct oaths to enforce distinct obligations, has appealed to a rule of interpretation recognized by Justice Nott in the case of Hoff v. Coleman (2 Tredway, 160, 161.) Both the rule as stated by Justice Nott, and its application in the case affirming it, are admitted ; but its application to the case before the court is denied. That “ affirmative clauses in the constitution have a negative operation” never has been disputed ; it is in the very horn book of every student, and equally applicable to the construction of affirmative grants of power in any other instrument, as in the constitution. But it is a rule of construction confined to the interpretation of the specific affirmative clause itself, independantly of all others, and framed confessedly against implication beyond its terms; but it was the first time, in the course of his professional experience, (Mr. P. said) in which he had known it extended to the comparative interpretation of two or more expi’ess affirmative clauses, to discover whether they could stand in context from consistency, or whether one must be rendered void, from their repugnance. The rule of interpretation applicable here, is the rule that clauses “ pari materia” in the same or separate instruments, may stand together, when, upon being read in context, there appears to be no discrepancy between them, and their provisions, in that case, are always held to be cumulative ; but if there be a repugnance, the former or latter must prevail, according to tho nature of the instrument to be interpreted. If it be a will or a statute, the last clause or the last act, in ease- of repugance, will ride over and control the first; if a deed, the contrary would be the result. For the reason that has established the rule as to wills and statutes, to >vit: that the whole subject matter is not put beyond the reach of discretion, until the final act, the constitution itself would be subject to the same consequences in the event of repugnance between its provisions; and if the oath in the ordinance, and the act passed under its sanctions, be repugnant to that in the 4th Art. of the Constitution, (if no other principle than mere canons of construction are to govern this decision) the ordinance will ride over and supersede the provisions of the 4th Art; inasmuch as it is part of the organic law itself, and entitled to the same favoured mode of interpretation. But (said Mr. P.) as.I am not brought into a discussion of the operative force of the Ordinance of the 18th of March, upon this first ground of exception, I will waive further remark here upon the force which it is to have in the case before the Court. His business (he said) at this stage of the argument, was with the oath in the Act— and if he had not reasoned to little purpose upon the nature of the power exercised, it was as competent for the Legislature to require that oath, as the performance of any other civil obligation ; for there was nothing in its character to separate it from the entire mass of ordinary civil obligations over which its powers, by the Constitution, had beenrendered plenary and entire,
    
      Sle thought it a courtesy due to the court, in closing his views as to the functions of the Legislature, to refresh its recollection, as to the extent to which judicial interpretation, in this State, had gone as to the powers of that body. He cited here the cases of the city Council v. Dunn, from Harper’s Reports, and Stark v. McGowan, from Nott & McCord, to shew that the court had decided, the Legislature to be the supreme power of the State.
    
    This, said Mr. P., brings me to my second exception to the order of the presiding Judge ; which is in substance, that though the oath in the act of December, 1833, independently of the ordinance of the 18th of March, passed by the simple majority might be unconstitutional ; this defect, if admitted, would be cured by the authority of the ordinance, in conformity to which it had been incorporated into the act.
    1 have (continued Mr. Player) already adverted to the legal operation of this ordinance in reference to our State Constitution, and it only remains for me here to notice its effect, so far as it is supposed to interfere with the obligation of obedience which the citizen owes to the Federal Governriment, It will be admitted, that, whatever may be the nature and extent of this obligation of obedience, it is founded in, and depends upon, the relation which the body politic to which he belongs, has contracted with its confederates in the constitutional compact; and subject, of course, to the control which it has over that relation, either to continue or dissolve it; for I think I shall shew, in a different part of this argument, (the position of the counsel who closed the case of Hunt v. McCready, to the contrary notwithstanding) that the State never has parted with its plenary control over its continuance in the confederacy. If, then, the citizen hold no connection with the confederacy but though his state, it follows that the continuance of the obligation is at the option of the State ; and further, that should the state assume a position repugnant to that obligation, it dissolves the obligation which itself contracted for him. “ Nothing is so natural (says the maxim of the law) as that an obligation should be dissolved by the same power which imposed it.” But we are told by the counsel for the relator, that however true this may be, this relation can only be impaired by a dissolution of the compact, and that so long as the State remains a member of the confederacy, the citizen is subject to the obligation of obedience to the Federal Constitution, which he holds to be the “supreme law of the land.” If any relation subsisted immediately between the citizen of South Carolina and the remaining co-states of the confederacy, independently of his state, this would of course leave him a choice between positions, when, in his judgement, the relation had been violated by the proceeding of his state ; but where his obligation to the confederacy is founded in the relation which his state bears to it, and dependant as an incident upon that relation, it is not within his discretion to hold a position independant of that assumed by his State, whether consistent or inconsistent with its relations to the co-states. What thqse relations are, and what the obligations imposed by them, the state, as the body politic which contracted it, determines, not only for itself, but its citizens, and its decision is final upon them. If then, the ordinance, and the oath passed in conformity to it, be repugnant to the federal constitution, the only relief which the citizen of South Carolina has against its provisions, is to remove himself beyond the sphere of its operation.
    f can hardly (said Mr. P.) bring myself to answer the position, that the oath in the act is not in conformity to the provisions of the ordinance of the 18th March. It is true that a spirit of disengenuous cavil might perhaps succeed in picking out some slight philological discrepancy; but it is only necessary to read the ordinance and act together, to perceive that the only want of conformity in the latter is its failure to occupy the whole ground covered by the ordinance. So far as it goes, however, it is in technical and even literal conformity to the ordinance. The ordinance, it is to be remarked, was passed on the 18th March, 1833, and, so far as it relates to the question, in these terms, to wit-
    “ We do further ordain and declare, that the allegiance of the citizens of this State, while they continue such, is due to the State,” &c. “ and the General Assembly is hereby empowered, from time to time, when they may deem it proper, to provide for the administration to the citizens and officers of the State,” &c. “ of suitable oaths or a& firmations, binding them to the observance of such allegiance.” &c.
    The oath in the tenth section of the act in question was passed on the 19th December ibUowmg-, and in these terms :
    “ I, A B, do swear, (or affirm, as the case may be) that 1 will be faithful and true allegiance bear to the State of South Carolina — so help me God V
    
    So far as it has been necessary to refer to the terms of the ordinance, the conformity will be acknowledged to be literal; and I shall, therefore, dismiss this ground without noticing the frivolous exceptions which are taken to shew the non-conformity of the act to tho Ordinance.
    Mr. Player said that he was now brought to consider the powers of a Convention, and should commence his observations by a frank and full renunciation of the errors into which ,he had fallen upon the subject, in the argument which he had the honor to submit to the .Legislature, in December, 1828. For those errors, the only excuso which could be fairly admissable, he apprehended, was the novelty of the subject, and the very imperfect examination which could be given it by a mind at that time neither developed or matured. It was under these circumstances that he joined in the opposition then offered to the suggestion of an able member from St. Philips and St. Mich-aels, (Mr. Dunkin) that a Convention was illimitable. And he believed that a recourse to the journals at that time would show, that he had a sort of paternity m the error which his friend (Gen. Thompson) had adopted, that a Convention was a “ special agency.” He never had, however, at any time, been so confirmed in the faith, as to acquiesce in the very strong language which the counsel had employed in disposing of the opposite position, that a « Convention was the people,” by classing it with the exploded absurdity of the real presence in the Eucharist.
    Mr. P. said that, however respectful he might regard this language to the opinions of those who were certainly any thing but sciolists in tho theory of our constitution, it should certainly be allowed tho merit which belongs to a most summary solution of difficulties, perhaps too imposing to be dispatched by a mere antithesis in phraseology. It was sacrificing too much to mere point, to acquiesce 'in a' ground taken before a Judicial tribunal, without either argument or authority offered in its support. He asked leave,, therefore, in vindication of his own peculiar views, most respectfully to inform the counsel, that to speak of one thing as another, was in legal parlance, perhaps not so utter a solicism as “the real presence in the Eucharist.” The identity between constituent and agent was the basis and sanction of all representative power, from a mere private agency to the highest public trust; and no principle deserved to be treated as better established in law, than that as to all acts within the trust, the constituent and agent were regarded but one legal person. He held that correctly to interpret the functions of a representative, constituted by matter “ in pais,” as the authorities termed it, recourse must be had to the instrument from whence his powers were derived, and that no valid restriction not in the instrument itself, could be imposed upon his powers, by any authority inferior in grade or dignity to that from which his functions were derived. The clause in the constitution under which the Con-veniion was called, (containing no restriction upon its powers,) was adopted in convention in solemn form in 1790. The authority of that convention, therefore, is the basis for the acts of the Convention of 1832, elected in virtue of its sanctions ; and my position, said Mr. Player, is, that in asmuch as its authority is founded in an act of the people, as a body politic, in Convention (the only form in which tho people can be regarded as supreme) no restriction could be imposed upon that authority, by any less power than the people, not as individuals, but as a body politic, exercising the supreme power of the State in Convention : m other words, that, as the supreme power of the State, a « Convention of the people,” gave the power, the supreme power of the State, a “Convention of the people,” must impose the limitation also: and that any restrictions attempted upon the authority of a convention, by the people, exercising mere rights of citizenship under the constitution, inhering in them in their individual, and not in their “ aggregate and politic capacity,” or by the legislature (a subordinate functionary) would be utterly nugatory and void. The Counsel has forgotten that although suffrage is a public act, it is also a mere individual act, and that it is not the theory of the constitution, that each citizen, as an individual exercising rights proper to him in that character only, is sovereign; but that the supreme power in the State resides solely in the people when acting (in the strong language of Lord Hale) in their “ aggregate and politic capacity.” Mr. Player said he would illustrate his position. It was within the admitted competence of the people, in their “ aggregate and politic capacity,” in Convention, to make or destroy the government; for in that capacity they might do'an act which supreme power alone could accomplish ; but what could bo more preposterous than to pretend that the people, at the ballot box,could destroy or make a government 1 and the very fact that they could not, proved incontestibly that they were not supreme, while engaged in the elective franchise, If in the exercise of rights merely personal and individual, not “ aggregate and politic,” the people are not supreme, how can it be pretended, that acting in that form, they could impose restrictions upon the supreme power 1 and if they can not, what becomes of the limitation upon the powers of the convention, admitting that a limitation was attempted! I will not say that the doctrine, that a Convention could be limited in its functions by ballots inscribed with the name of some distinct demagogue, and indorsed with the word restriction or no restriction, deserved to be classed with the absurdity of “ the real presence in the Eucharist but Í will say that it would be as empty and unmeaning a ceremony as to bind up the hands of a giant with packthread!
    But, admitting that the people, in their electoral colleges, could restrict a Convention, in the case under consideration it is not pretended that they imposed any direct and immediate restriction themselves ; but that by concurring in the election of delegates proposed by the Legislature, they concurred also in the restriction imposed by the act. The authority in the Legislature to restrict a Convention, if it exist any where, must be in the Constitution, itself, and given in express terms; and no such right being found there, it follows that an attempt to exercise it by the Legislature would bo void.— As the people, however, are to be constructively convicted of a conspiracy to legalize, through the ballot box, a void law, (a limitation attempted by the Legislature beyond its functions) it is but fair, that the doctrine of presumptions should be permitted to operate in their behalf as well as against them. It is an admitted principle, that where an act done is to be referred to a valid or a void authority, that it should be presumed to have been done in virtue of that which is valid, in preference to that which is void; and if I am correct in the position, that an act of the Legislature calling a Convention, would only be so far valid, as it called the colleges to election, and that all its provisions beyond, were absolutely void; in the absence of all positive acquiescence, the acts of the people would be presumed to have been only in pursuance of the lawful and not of the void provisions of the law. That the mere omission of the people to negative expressly every assumption of power by the Legislature, should be interpreted into a constructive confirmation of, and acquiescence in it, and that they could only save their rights by perpetual re-affirmation of them, at each successive period of invasion, is a doctrine which would better consist with the ends of an usurper and a tyrant, than with the liberties of a free commonwealth.
    Bo much, said Mr. Player, for theory. Í must now detain the court for a moment, upon facts. The second clause of the act of October, 532, calling upon the people to elect delegates to a Convention, is in these terms, “ that to the State assembled in Convention, it belongs to determine the character of such (oppressive and unconstitutional) acts, as well as the nature and extent of the evil, and the mode and measure of redress.” And the succeeding clause proposes that the Convention shall “ further, in like manner, take into consideration such . acts of the said Congress, laying duties on imports, as may be passed in amendment of, or substitution for, the act or acts aforesaid, and also all other laws and acts of the Government of the United Stales which shall he passed or done, for the purpose of more effectually executing 
      
      and enforcing the same.” This is the unfettered freedom of the Arabian courser upon the desert. This is the sort of limitation which the Legislature and the electoral colleges could impose, and did impose upon the Convention ; and a power no further restricted, as to any subject matter, I would confidently pronounce to be omnipotent. “ To the State assembled in Convention, it belongs to determine” — “ the nature of the evil and the mode of redress.” — And again, further to take into consideration “ all other laws and acts of the Government of the United States, which shall be passed or done for the purpose of more elfectually executing and enforcing the acts, “ laying duties on imports.” The mere bringing these clauses in juxta position, is (said Mr. P.) answer sufficient to this pretended restriction, and sufficient to fortify the Ordinance of the 19th March, 1833, from the grave charge of being nugatory ; because the supreme power in the State had usurped power; and in the umpirage of the petty questions presented to them, had, as a board of arbitrators, exceeded the submission in their award !
    But the learned counsel, said Mr. Player, with less than his accustomed sagacity, seemed to have lost sight of the view that the functions of the Legislature in assembling a convention, are identical with those of the executive, in assembling an extra session of the Legislature under the Constitution; both ministerial merely. Yet would it be gravely contended before this Court that if the Legislature, assembled by executive proclamation in October, ’32, had passed any other acts than the appropriation bill, and the act calling upon the people to elect delegates to a Convention, such acts would have been void; for the very sage re,ason that Governor Hamilton, who assembled them, had, in his executive message, brought to their view no other subject than the expediency of calling a Convention 3 This would be too preposterous for refutation.
    If then, (said Mr. Player) I have succeeded m establishing the position, that neither the Legislature nor the people in their primary colleges, could limit or did limit the Convention in its sphere of action, the ordinance is “rectus in curie” against that objection, and I am brought to what I regard my material ground of exception to the order of the presidingJudge; to wit, that it is incompetent for the Court, by judicial process, to arrest or impair the force of an Ordinance of a “Convention of the people” of the State.
    This is the pivot on which the whole controversy must practically turn ; for whatever may be the force with which the supremacy of the people in Convention may, in theory, be vindicated, the supreme power, practically, is that in which resides the right of ultimate arbitrament and control; and if it be within the competence of this court, as a “ tribunal of dernier resort,” to supervise and subvert the ordinance of a convention of the people of South Carolina, this court, and not the convention, is the supreme power of the State. For all the ends of usurpation, an unlimited and ultimate right of interpretation, is equivalent to legislation; and the tribunal invested with this ultimate supervision and negative upon the proceedings of other bodies, is practically and essentially their superior. Whatever, therefore, may be the names attached to this process, for the purpose of giving jurisdiction to the Court, the true parties to the controversy arc the Convention and the Court, and the issue involved is, in which of these resides the supreme power of the State. Believing this to be the question into which this controversy practically and necessarily resolved itself, I have felt it my duty in vindicating the supremacy of the Convention, to protest against the authority of the court, under the circumstances, even to hold cognizance of the case, to say nothing of granting the relief sought by the process.
    In other countries, where civil liberty is not secured by the same regulated forms as in ours, the supreme power in the State resides in the Government; here, it reposes in elevated security, high above the Constitution and the laws; “ not in the throne, but in that power behind the throne, which is greater than the throne itself.” I do not, said Mr. Player, adopt this expression in the sense in which was it employed during the ministry of Lord Bute, to rebuke the corruptions of what was appropriately stigmatized as a “back stairs influence,” (the “ kitchen cabinet ” of that day) but to designate in its appropriate dignity, the ulterior supremacy of the People in Convention. He said that it was very foreign from his wish, by hyper-criticism upon the functions of the court, to attempt to stint its jurisdiction or impair its dignity, as one of the co-ordinate branches of the Government; but it seemed to him that in merely- characterizing a “ Convention of the people ” as the supreme power Of the State, (which it was acknowledged, on all hands, to be) he placed its ordinances at once upon an elevation where no subordinate department of Government could reach thorn.
    The attributes of supreme power, whether employed in harmonizing the movements of the universe, or regulating the humbler destinies of a State, are identical. They consist in- omnipotence over the subject matter; despotic, absolute will, which in contemplation of law, cannot err, because no inferior power can have official cognizance of its errors for correction. The very errors of the Convention, if it has erred, are consecrated by the supremacy of its attributes; and however free may be the conscience of this couit in interpreting the acts of its co-ordinate branches, they are bound up in chains of adamant by the supreme and irrevisable will of the despot; and it has no other function in reference to what “the people in convention” have ordained, than to register the edict and to make its process subservient to its execution.
    I have said that a “ convention of the people” is despotic. Such power has existed under regulated forms, in most free governments, to be called into action in high and perilous exigencies in the State. As soon as supreme power ceases to be despotic, so soon is it divested of its supremacy. If it be in the breast of the judge to interpret, it is in the breast also of every executive officer of the State, in virtue of his oath to support the Constitutions of his own state and of the United States, to enforce or not enforce this oath at his pleasure. And the plain consequence is, that a law which comes to us with almost as high sanctions as the decalogue itself, is trampled, in turn, under the feet of every subordinate functionary of the State. I would not be understood to deny, said Mr. Player, that in the ordinary forms of administrative justice, between suitors before the court, the plenary power of judicial interpretation over the organic law, rests necessarily and essentially in it; but where a power exists in contemplation of law, whose only attribute is absolute control, paid where its functions have been invoked to interpret and give character to such duties and obligations as it has contracted for the citizen through the constitution — at its loud and commanding response, when given, the discretion of all subordinate functionaries is rebuked into whispers 'of - mere passive compliance with its will; and the executive, legislative and judicial powers, are fused into one common mass of ministerial functions, by which to facilitate the execution of the mandates of their common superior, “ a Convention of the people.” The objection of the counsel for the relator (Col. Williams) and of the learned counsel who closed the argument of Hunt and M’Cready, (Col. JSlanding) that the Convention being a supreme power, usually employed in making, changing or destroying a Government, was necessarily excluded from Subordinate or judicial powers, which they contended were properly in a court, was perhaps not well considered. Supreme power is as competent to waft a feather as to make a world, to note the fall of a sparrow as the change of an empire. And the same omnipotent will which exercises power over the government, might place under its control, and in fact in its hands, the very Government itself. So that whether it wills to act as the supreme legislative, or the supreme judicial power, an Areopa-gus to decide causes and interpret laws and Obligations, its will, when expressed, either in making or interpreting the rule, is-the same; and its decrees to a subordinate judicature, are as irreversible as the laws of the Medes and the Persians. “Sic nolo, sic jubeo,” is the language of the supreme power, and the duty of dependent and limited jurisdictions, to its absolute command, is implicit obedience. It is upon this ground, that I deny the right of the Court to interpret the relation which the citizen, under the Constitution, bears to his State, since a higher power has already interpreted the Constitution in reference to it, and pronounced it to be the tie of allegiance.— The power to interpret the organic law, in the court, being necessarily inferior, inasmuch as it is both derivitive and restricted to a case made for its adjudication, is merged in the interpreting power of the Convention, when they concur, and subverted by it when they conflict ; inasmuch as all the powers of that body are both original and unlimited, and when brought to act upon the sphere of any subordinate department, supercede its existence, and suspend its functions to the extent of the interposition.
    A case is supposed, in which a convention passes an ordinance plainly repugnant to the Constitution of the United States, and abrogates rights which vest under it, and it is asked whether this court, when appealed to for redress, is not to administer relief and support the constitution 1 My answer is, no — unhesitatingly no. As men, they may know that the convention has erred, as judges they cannot; for as they hold office by the permission of the supreme power, a “convention of the people,” they cannot exercise their functions against the expressed will of their superior ; and if from misgiving of conscience, they are prevented from executing the fiat of that superior, their plain duty and only choice is to retire from its service. I am, said Mr. Player, for a judiciary independent of all co-ordinate branch
      
      es of Governments, but not of the people in Convention, who orea» ted and can destroy them; for of this supreme and ultimate arbiter, which holds in its giant hands the destiny of the State itself, no agent or functionary of it, cap, or should be independent. It is impossible that any functionaries acting under it, can bear any other relation to it, than that of obedient ministers to its will; and if it may not be sacrilege to illustrate the scope of this “ great argument” by an appeal to still higher analogies, it would not be more repugnant to my sense of the office or those who minister at more holy altars in the Temple of the living God himself, to render them independent of the will of that supreme arbiter of the universe, than that those appointed to minister at these altars should be independent of the will of the supreme arbiter of the State.
    As incident to this supremacy of the power of “ a Convention of the people ” is their indivisibility: for it would not be greater soli-cism to speak of two supreme beings, than of two supremo powers in a State ; the very supremacy of one power, implying necessarily the inferiority of all others. — Yet this divided supremacy, (and incident to it divided allegiance) is not only gravely asserted, but maintained upon the ground that the Constitution of the United States declares in what treason shall consist, which it is said, Lord Hale defines to consist in a “ forfeiture of allegiance.” This dictum of Lord Hale, it is to be remarked, however, is in reference to treason at common law, which he defines to consist in a “ forfeiture of allegiance,” and the fact that the Constitution of the United States has incorporated the statutary treason of the 25th Ed. 3. st. 5, c. 2, into its provisions, does not draw after it, as a consequence, the incident of allegiance. The treason under the Constitution, and under the statute of Edward, is an offence of positive institution, and like all statutary offences, not dependent upon original principles, but upon positive enactment, for its character; and there would be equal propriety in contending, in England, that “ counterfeiting or diminishing the money current,” or “ bringing counterfeit money into the realm,” or committing any other of the eighteen statutary treasons enumerated in the writers upon the criminal jurisprudence of that country, implied the existence of allegiance of which their commission was a forfeiture, as to infer that because treason could be committed against the Government of the United States, that, therefore, allegiance was due to it. The crime of treason, so far as it is of positive institution (which by the Constitution of the United States, it unquestionanably is,) consists no more in a forfeiture of allegiance, than would receiving stolen goods, or trading with a slave under our statutes.
    But the learned counsel who closed the argument in Hunt and M’-Cready, has told the court not only that the States had divided the supreme power, by becoming parties to the Compact, but that they had placed in the hands of the confederacy the means of their annihilation, by the power of the three-fourths to amend the constitution, from which he denied their right to secede, except for cause, and by the consent of the contracting, parties; leaving the governments, thus denuded, as mere political pageants to “ wield a barren sceptre ” over the desolation! It was necessary that Prometheus should be bound to the rock before the vulture was let loose upon his vitals, and there-tore it was that the learned counsel, to ensure the success of his own peculiar views, paved the way for the annihilation ef the states, by first denying to them the right of secession. I cannot suppose (said Mr. P.) that the eminent jurist who asserted this principle, can be ignorant of the concurrent holding of, all the writers upon public law, that it was a necessary incident to all political connections between States, not only that they might expire by the will of the contracting parties when the «casus foederis had ceased, but that either party, in virtue of its mere arbitrary will, might capriciously determine the connection. It would- be trifling with the intelligence of the court to read authority to this point; and yet in the face of this broad and acknowledged principle of international law, it was held that a State could be bound up in perpetual bondage, tied to “ the body of this death,” by the constitution, dnless she burst her fetters by an appeal to the « ultima ratio,” the right of revolution ! The writers on public law are unanimous and pointed, that no people can divest themselves of the right of self-preservation, or compound with a separate power for the terms of their political extinction. “A power (says Justice Johnson, in .the case of Fletcher & Peck, 6 Cranch, 143.) to produce its annihilation, is an absurdity in terms. It is a power as utterly incommunicable to a political, as to a natural person.” Yet in the case supposed by counsel, the people of South Carolina have not only signed their own death warrant, but secured it by a bond with penalties.
    Mr. Player said, that as he had entirely pre-occupied the argument upon his fourth ground of exception, there could be no occasion to reiterate it here. The success of it would, he knew, depend entirely upon the weight which the court might attach to his interpretation of allegiance, and he could do nothing more at present, than to rest it upon that interpretation. He added, m conclusion, that in submitting that interpretation to the judgment of the court, he was impelled not more by a deliberate conviction that 'it was legally correct, than by an anxious hope that in this war of conflicting opinions, it might be the means of presenting, through this court, to an excited community, a nucleus around which the discordant elements might arrange themselves in harmony.
    
      
      
         Since this decision the 4th Article of the Constitution of this State has been amended to read as follows, viz: “Every person who shall be chosen or appointed to any office of profit or trust, before entering on the execution thereof, shall take the following- oath: ’*1 do solemnly swear (or affirm) that 1 will be faithful and true allegiance bear to the State of South Carolina, so long as 1 may continue a citizen thereof: and that 1 am duly qualified, according to the Constitution of this State, to exercise the office to which 1 have been appointed; and that I 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 Slates. So help me God.” Judge Harper’s opinion being in favor of the constitutionality of the oath even previous to the amendment, and Judge Johnson, in the conclusion of hi's opinion having said that “if the people should think fit so to amend the Constitution [of this State] as to authorize the administration of an oath of allegiance in the form prescribed by the act of the Legislature of the last session, there is nothing in the Constitution of the United States opposed to it,” the constitutional obligation of the oath of allegiance :is now incorporated in the Constitution of this State, may be regarded as having the sanction of ainajoiity of the Court, ~ • .11,
      
    
    
      
      At the earnest request of Mr. Grimko, who prepared his argument for publication, his peculiar orthography is here preserved.
    
    
      
      This Constitution contains no Oath.
    
    
      
       Talbot was in the same situation as Ballard
    
    
      
       According to the Roman Law, no citizen could lose his freedom without his consent — but according to the same Law, the very fact of becoming the citizen of another country, was, of itself, the extinction of all rights and privileges of Roman citizenship. Among the Grecian States intermarriage was forbiddon, and none were allowed to possess lands within tho territory of another Republic. When the Olynthi-ans departed from this rule, it was considered as a portentous innovation. The Byzantines, to evince their gratitude to the Athenians, for their assistance, in the war against Philip, granted them, as an extraordinary favor, the privilege of holding lands within their territory, and of intermarriage. To grant the freedom of the city, in an* times, was equivalent to our naturalization,
    
    
      
       The Ordinance of 24th Nov. 1832, is dated “in the fifty seventh year of the Declaration of the Independence of the United States of America,” Jour. p. 52, but those of 15th and 18th March, 1833, Jour. p. 110 and 129, are both dated “ in the fifty-seventh year of the sovereignty and independence of the United States of America.”
    
    
      
       It is worthy of notice that this identical sentence is found in Dr. Ramsay’s History of the American Revolution'published in 1789.
    
    
      
       The expressions used in the Ordinance, are evidently traceable tov the address of the Convention to the people of So* Ca. See. Journ. Conv. p* 67.
    
    
      
       All tliis is the more rcmarkablo when it is rememberd that this Ordinance does not claim an indefeasible, perpetual alegiance, but only an alegiance commensurate with residence. In other words, the alegiance which the U. States claims’ is perpetual, and indefeasible by the act of the citizen; that which the ordinance claims is only local and temporary. The U. S. claim an estate for life in the alegiance of the citizen s So. Ca. only a tenancy at will, determinable at the option of the citizen.
    
    
      
      See tlio 2d and 3d of the Articles of Confederation.
    
    
      
      With this agrees Burlamaqui, 2(1 vol. 1 st Part, 7th chap.
    
    
      
       Seo Noto at the end.
    
   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, most incontestably, that that Constitution was considered as having prescribed an oath on the subject of fidelity or allegiance to the State, in such terms as were thought best calculated to secure that object, and that the Legislature did not think themselves authorized to interpolate any thing into it; for in all the examples before enumerated, there is no instance of the most distant allusion to the subject, but on the contrary the oaths of office prescribed in these acts are confined to the appropriate duties of the office.

The Constitution of 1778, like the Constitution of 1790j contains a general oath of office,, faithfully to discharge the duties thereof — and the practice of the Legislature, under both Constitutions, furnishes a most conclusive argument in support of the position which I have before advanced, that this general provision was not understood to conclude the Legislature from exacting the pledge of an oath from the officer to discharge the particular duties assigned him; as in the instance of the act of 1816, on the subject of gaming.

I will notice only one other instance of legislation under the Constitution of 1778, and which has been put in requisition in the argument. It is that of the act of 1785 — (P. L. 368) that an attorney, at the time of his admission to practice, shall “take the oath of'allegiance and fidelity to the State.” What oath? Why, necessarily the oath prescribed by that Constitution; by the use of the definite article iht, some known oath is necessarily referred to, and we know of no other than that prescribed in the Constitution. There is another reason which is equally satisfactory on this subject — the office of an attorney is not an office of profit or trust within the meaning of the Constitution, no more so than the profession of medicine or divinity — and the Legislature were at liberty to prescribe any form of oath that they might think expedient and proper.

Examples from the legislation of other States, in relation to this subject, have been relied on to show that oaths of allegiance are the subject of legislative regulations, but on referring to them it will be found that in all the States where this license is allowed, it is predicated on constitutional provisions, or where the Constitution contains no provision on the subject. The Constitution of Massachusetts may be put as an example of the first description. In the general oath of office, in the 1st article of the 6th chapter, an oath of allegiance is incorporated in the following terms: “And I do swear I will bear true faith and allegiance to the said Commonwealth”— and the sainé form is substantially pursued in an amendment to that Constitution — and the requisition of an oath of allegiance in that form is not only consistent with the Constitution, but expressly enjoined by it.

The Constitution of Georgia contains no general provision on the subject of Allegiance, but the 19th section of the 3d Article requires that the members of the Legislature shall take an oath that he has not obtained his election “by bribing, treats', canvassing,” &c. — “ that he considers himself constitutionally qualified,” dzc. and that he “ will bear true faith aud allegiance to the State,” &c. and the 5th section of the 2nd Article prescribes the form of the oath of office to be taken by the Governor. But no form of an oath of office for any other officer, nor any principle directory of the manner in which they should be framed, has struck my eye on looking over that Constitution, and consequently the Legislature were at liberty to adopt that form which in their judgment was best calculated to secure fidelity to the government of the State, and the faithful discharge of the duties of the officer. We may perhaps find in Georgia other examples worthy of imitation. By an act of the Legislature of that State, members of the Legislature are required to take an oath that they have not been concerned in a duel, and I have recently understood from a gentleman highly distinguished in that State for his legal attainments, that instances have occurred in which members returned have refused to take that oath, and that by common consent it is conceded that the Constitution having prescribed the form of the oath, the act was void.

I have thus demonstrated satisfactorily, at least to my own mind, that the oath prescribed by the Constitution to be taken by all persons chosen or appointed to any office of profit or trust, that they would “ support, protect and defend the Constitution of this State,” is all the pledge that the people of this State were willing to give, or disposed to accept, of fidelity and allegiance to the State — and that the people themselves having in the Constitution proscribed the form, the Legislature had no authority to add to, vary, or alter it, although the terms used might import the same thing; and consequently that so much of the act of the Legislature of.the last session as prescribes the form of an oath of Allegiance and fidelity to the State, is repugnant to the Constitution.

This brings me to the next general proposition, whether the Convention (of March, 1833) had authority to empower the Legislature to enact an oath on the subject of allegiance.

That Convention was holden under the authority of an act of the Legislature, (passed on the 25th October, 1832) wherein it is recited that Whereas, the Congress of the United States hath, on divers occasions, enacted laws laying duties and imposts for the purpose of encouraging and protecting domestic or American manufactures, and for other unwarrantable purposes, which laws, in the opinion of the good people of this State, and the Legislature thereof, are unauthorized by the constitution of the United States, and are an infringement of the fights reserved to the States respectively, and operate to the grievous injury aud oppression of the citizens of South Carolina: And whereas, to the Slate, assembled in Convention, it belongs to determine the character of such acts, as well as the nature and extent of the evil, and the mode and- measure of redress.” “ Be it, therefore, enacted,” &c. “ that a Convention of the people of this State shall be assembled at Columbia on the third Monday in November next,ihen and there to take into consideration the several acts of the Congress of the United States imposing duties on foreign imports for the protection of domestic manufactures, and for other unauthorized objects; to determine on the character thereof, and to devise the means of redress ; and further, in like manner, to take into consideration such acts of the said Congress, laying duties on imports, as may be passed in amendment of, or substitution for, the act or acts aforesaid; and also all other laws and acts of the Government of the United States, whiph shall be passed or done for the purpose of more effectually executing and enforcing the same.” The act then goes on to provide for the election of delegates and their qualifications, and to prescribe the time and place of holding the election.

In pursuance of this act, the people proceeded to the election of delegates, who assembled at the time and place appoint, ed, and by an ordinance ratified on the 24th of November of the same year, proceeded to declare and ordain, “that certain acts of the Congress of the United States, purporting to be laws for the imposing of duties and imposts on the importation of foreign commodities,” «fee. “ are unauthorized by the C on-stitution of the United States, and violate the true meaning and intent thereof, and are null, void and no law, nor binding upon this State, its officers or citizens;” and they thereupon proceeded to provide ways and means to prevent the operation and enforcement of the said acts of Congress within the State.

Not long after this, the Congress of the United States passed an act remodelling the duties and imposts on foreign impor. iations, and thereupon the Convention was again convened, and by an Ordinance ratified on the 15th of March, 1833, in which it is recited that Congress had recently passed an act which had provided for such a reduction and modification of the duties on foreign imports as would ultimately reduce them to the revenue standard — it is ordained and declared that the ordinance above recited, and all acts of the Legislature passed in pursuance thereof, should from thenceforth be deemed and held to have no force or effect. The Convention proceeded, notwithstanding the ordinance before recited, three days after, to declare “that the allegiance of the citizens of this ''State, while they continue such, is due to the said State; and that obedience only, and not allegiance, is due by them to any oth- oe power or authority,” dzc. and they thereupon authorize and empower the Legislature to provide for the administration of suitable oaths binding the citizens and officers of the State to the observance of such allegiance, and abjuring all other allegi-anee; and this authority is claimed as abrogating the Constitution, and as conferring on the Legislature the power to enact the oath contained in the act under consideration.

I have thus presented, in a connected view, the whole ground of this question, and it is apparent that the evil which is supposed to render the calling of the Convention necessary, was the unconstitutionality of the acts of Congress imposing duties on the importation of foreign commodities, for the protection of domestic manufactures, and the object to submit that matter to the consideration of delegates appointed by the people for that especial purpose, and that they might adopt such measures as the exigencies of the case might in their judgment demand. In the appointment of delegates to that Convention, the people acted upon the faith that they were to be charged with those duties and no others, and the assumption of any other powers than those necessary to the attainment of the objects in view, would have been a violation of the trust reposed in them, and an usurpation of the rights of the people.

The idea is, that the Convention possessed all the powers of the people, and might rightfully exercise it in relation to all subjects, and in any manner they might think fit.

Can it be supposed, that the good people of this State thought that in the appointment of delegates to that convention, they were conferring on them the authority to transfer their allegiance to the grand Turk, or the Emperor of Russia, or to indulge in any other caprice they might think proper? No such thing. — They had been invited by the legislature to elect delegates to a convention charged with certain specific powers in relation to certain acts of Congress which were supposed to be unconstitutional and injurious to the interest of the citizens of the State — they accepted the invitation and elected their delegates, and upon the common-place principle that the authority of the agent is limited by the powers conferred on him by the principal, the powers of the delegates were limited to the objects designated by the act under which the convention was called.

Now the preamble to the ordinance of the 15th of March, before recited, shows that all the objects of calling the Convention had been attained, the offensive acts of Congress had been repealed, or so modified as to be acceptable to the convention ; and on the faith of it the former ordinance of the Convention, and the acts of the legislature passed in pursuance of it, and intended to provide a remedy against the evil, were annulled and repealed.

The declaration of the Convention, in the Ordinance of the 18th March, that the allegiance of the citizen was exclusively due to the State, and the authority given to the legislature to provide by law for the administration of oaths to carry it into effect, cannot by any possible means be brought within the objects contemplated in calling the Convention, for they had already been accomplished. In the bill, introduced into the legislature as its last session, to amend the constitution, so as to authorise the administration of an oath of allegiance, m conformity with that prescribed by the act, the legislature have very clearly expressed their own judgment of this matter— that bill was wholly unnecessary, if they could derive their authority from the ordinance ; and the terms of that authority, if that be good, are as broad as any advocate for allegiance could desire.

Several subdivisions of this general proposition have been pressed upon the consideration of the Court — and amongst these, is the question, whether the term allegiance used in the act, is to he understood to mean exclusive allegiance to the State, as defined in the Ordinance of the Convention, and in the resolution of the same legislature which passed the act.

The general rule certainly is, that, where the meaning of words, used in a statate, have been ascertained, they are to be understood in the same sense when they are used in a subsequent statute. — [Bacon, Abe. Statute, 1.] But, I apprehend, that when a word occurs in a Statute, which is susceptible of two interpretations, one in which it may legitimately operate, and the other would wholly defeat its operation, it ought, on ihe maxim ut res magis vdleat quam pereat, to receive that interpretation favorable to its operation. If, therefore, in the construction of the word allegiance, in the act, as exclusive allegiance to the State would render it unconstitutional as repugnant to the constitution of the United States, it ought to be construed as an allegiance consistently with the constitution, if that would give it effect and operation.

Neither the declaration of the convention, nor the resolution of the Legislature, have any necessaiy connection with the act — nor have either of them the force of law — they are, it is true, the expression of an opinion entitled to great consideration — but it does not follow that even those who entertained that opinion intended to incorporate the principle in the act. The diversity of opinion, on the subject, might have been a motive for not incorporating it into the act, and I have always myself regarded it as a concession make by the majority lo the minority, and an abandonment of the principle of the ordinance. It will be observed, too, that the oath prescribed by the act, is to. be taken in addition to the oaths then required by law, and amongst these is the oath to “ preserve protect and defend the Constitution of the United States” — and the term Allegiance, when understood in reference to the context, obviously imports an allegiance to the State, consistently with the obligation of the citizen to the government of the United States, and — understood fn this sense — I am not able to perceive its incompatibility with the Constitution of the United States.

We are met, however, wdth the objection, that the Convention were clothed with all the power of the people, and having expressed their will in the Ordinance of March, 1833, that Ordinance superseded the constitution, and is imperative on the Court. ,

The foundation upon which ail our institutions are built is, that the will of the people is supreme — nor will it be questioned, that it is equally imperative, when expressed through agents regularly constituted by them for that purpose. But, surely, when any body of men, however august, take upon themselves to aet in the name of the people, an individual who supposes his rights invaded, may be permitted, respectfully, to ask for their authority, and to that request the courts, the organs appointed by the Constitution to administer Justice, are bound to respond.

If an unauthorised assembly should take upon itself to send forth an edict, in the name of the people, commanding obedience to its dictates, would that be binding on the citizen ?— Certainly not!' — And in what does that differ from the act of a regularly constituted body who assume powers not delegated by the people?

I have before observed, that the Convention was convened for definite objects, expressed and designated in the act which authorised it, and all who are familiar with its history know, that the convocation of it was long and successfully opposed, on a doubt suggested that its powers could not be limited— apprehensions were entertained that the unequal parish Representation in the Legislature would be corrected,, and it was not until this doubt was removed and public opinion had settled down in the belief that the powers of a Convention might be limited, that the Legislature could be prevailed on to pass an act calling a convention. This was, in all probability, one of the reasons why the Convention refused to consider the resolutions proposed in the Convention, by Mr. Middleton, from Greenville, and Mr. Lowry, from Chesterfield, to amend the Constitution. But, that the people, in whom all power resides, should not have the power to limit the powers of their delegates to a Convention, involves a contradiction ; and I have before attempted to show that their power was so limited by the. act under which they convened, and the objects having been attained, their power ceased.

The third general proposition involves the question, whether the citizen owes allegiance to either the State or the United States, exclusively, or to them jointly?

It is not necessary to the purpose of this case, that this great and exciting question should be subjected to a Judicial determination, but as it has constituted a leading feature in the argument, 1 propose to offer a few general remarks on the subject.

Allegiance, (according to Sir Wm. Blackstone,) is the tie or ligamen, which binds the subject to the King, in return for that protection which the King affords the subject; and he proceeds to remark, that the thing itself, or substantial part of it, is founded on reason and the nature of government. In this simple definition, all the Common Law writers agree — and it appears to me to be ample enough for all practical purposes, without encumbering it with the subtleties and distinctions which are found in the books. It imports very clearly that the King is competent to protect the subject in the enjoyment of all his legitimate rights, and that the subject, in return, will obey all the commands, and discharge all the duties which the King may lawfully require of him. Now, it is apparent, that no such relation can exist between a citizen and another individual in a republic, for the obvious reason that that other is incompetent to afford the protection which is the reward of allegiance ; but I can perceive no impropriety in using the term allegiance to express the relations which must necessarily exist between the citizen and the governing power, in every well regulated government, whatever may be the form — I say, between the citizen and the governing power, because that power alone can afford the protection which is the reward of alie, giance.

The question then, arises, where does that power abide in South Carolina? Is it in the people? — taken as individuals, the citizens are all equal — taken in their aggregate capacity and without organization, they are the fountain of all power, but incapable of exercising it, on account of the want of some mode of expressing the common will and the moans of carrying it into effect.' There could be no allegiance, because there would be no protection to the citizen. But the people have organized a government clothed with all the powers that are necessary to protect the citizen in the enjoyment of all his rights, privileges and immunities. It is that government which does protect the citizen, and to that government the allegiance of the citizen is due. If that had been a simple government, intended for the State alone, and confided to the administration of agents appointed by the State, and responsible to the State alone, no proposition, not even a mathematical axiom, could be more certain than that the citizen would owe allegiance exclusively to that government. But many of the powers of government, and those of the greatest importance, have been confided by the people to the government of the United States, whose .agents are not appointed by, or responsible to, the State, except in common with the other States ; and to that government is confided the preservation of many of the dearest rights of the citizen, and amongst these may be mentioned the guaranty of the Constitution of the United States, which secures to each State a republican form of Government. The government of the United States has also the right to require of the citizen to contribute of his wealth to its support, and to serve in its armies. That government is to all intents and pur. poses, as much the government of the people of South Carolina, as the State government. They have both received their sanction, and they have consented to be bound by them ; and if the conclusions ot logic can be confided in, for the same reasons that they owe allegiance to the State government, they owe it to the government of the United States — sophistry-may confuse the subject, but this must be the conclusion, when* ever the unerring test of truth shall be applied.

The usages of both the State and Federal Government, and the universally received opinion of the American people, concur in supporting this conclusion.

Treason, according to the common law definition, is a violation of the obligation of allegiance, and the authority conferred on Congress by the Constitution of the United States to declare in what it shall consist, and to provide for its punishment, necessarily presupposes that allegiance is due to the United States. It expresses, in a language not to be misunderstood, the opinion of the framers of that instrument. The act of Congress, before referred to, appointing an oath of allegiance to be taken by the officers and soldiers of the United States, is an exercise of the right, and if thé opinions of men eminently learned in the law, and profound in politics, are entitled to weigh any thing, proofs without number may be adduced. On the other side, the States, as in the examples before cited, of Massachusetts and Georgia, and there are some sis. or eight others, have, either by some provision in their Constitution, or in tho absence of any constitutional restriction, required their officers, by laws, to take oatlis of fidelity and allegiance to the State. Now it is utterly impossible to reconcile these claims without supposing that allegiance is alike due to both — if not in degree, at least in quality. The Government of the State is a compound of the State and Federal Government, and to demand the allegiance of the citizen to one only and exclusively, is to require of him only half of his duty.

There are those, I am aware, who maintain that allegiance is due .to the people as the fountain of all honor and power. — - But political allegiance is altogether conventional. The people may, if they will, surrender all power and authority, and pledge their allegiance to a tyrant — and who can restrain them? Now, by the Constitution of the United States, the people of this State have surrendered to the United States (and whether as a Government or as political communities, or as a people, is immaterial to this question) a part of the sovereign power— the power of declaring war, and making peace, of coining money, &c. and these powers are to be exclusively exercised by the United States. Nor can the States wantonly resume them without a violation of tho faith pledged by the Constitution. A part of the supreme power of the State may then be exercised by the United States — consequently, allegiance is due to the United States, commensurate with those powers.

Let it be conceded, that the people of the State ma.y resume their powers at will — still, as long as they are rightfully exercised by the United States, to that power we owe obedience, and necessarily allegiance.

The declaration, that allegiance is not due to the United States, was, perhaps, first promulgated in the Ordinance of March, 1833, and that is accompanied by the concession that obedience from the citizen was the right of that Government. Now, if there be any thing in allegiance which is not comprehended in obedience, I confess I can’t comprehend it. But the notion, that allegiance is due to the State Government only, is at war with the common sense of the American people.'

The relations between the people and the government of the United States, is familiarly expressed, both in speaking and writing, by the term allegiance, and the idea certainly originated in the received opinion, brought down from the adoption of the Constitution; and reason about it as we may, that constitution has ascertained and fixed their relations, nor can any State without a violation of the faith pledged to support that Constitution, change or alter these relations.

That I may not be misunderstood, I'will, in conclusion, add that my soltlod opinion is, that the allegiance of the citizens of South Carolina is due both to the State government and the government of the United States — that the State Constitution having prescribed the form of an oath on that subject, the Legislature had no authority to change, add to, or alter it. That the Convention having been called for a specific object, and that object having been fully attained and accomplished, the Legislature could not derive their authority to require an oath of allegiance, in a different form, from an ordinance of the Convention, subsequently passed. But, that, if the people should think fit so to amend the Constitution, as to authorize the administration of an oath of allegiance in the form prescri. bed by the act of the Legislature of the last session, there is nothing in the Constitution of the United States opposed to it.

I am, therefore, of opinion, that the writ of mandamus ought to issue.

DAVID JOHNSON.

Harper, J.

In determining on the validity of the Oath in question, it is first necessary to fix the meaning of the term allegiance. I am not aware that this can be better done than in the words of Sir Edward Coke, in Calvin’s case: (7 Rep. 8,) “ Legiance is a true and faithful obedience of the subject duo to his sovereign.” No doubt the term is of feudal origin, and was originally taken to express the service and fidelity due to the paramount Lord of the Soil. It is distinguished from fealty or fidelity due to any inferior Lord of whom lands are hol-den. Originally, I suppose, the term had no reference to any political authority. But from the time of the Norman Conquest, when the King became the Lord Paramount of all the lands in the kingdom, the service due to the highest feudal superior became confounded with the obedience due to the supreme political authority of the State; and it is in this latter sense that the word is now commonly used, and no doubt was used in the act we are considering.

The matter is explained by Blackstone: (4 Com. 366-7)— Under the feudal system, every owner of lands held them in subjection to some superior or Lord, from whom or whose ancestors the tenant or vassal had received them. And there was a mutual trust or confidence subsisting between the Lord and vassal, that the Lord should protect the vassal in the enjoyment of the territory he had granted him, and on the other hand that the vassal should be faithful to the Lord, and defend him against all his enemies. This obligation on the part of the vassal was called his fidelitas or fealty, and an oath of feal* ty was required by the feodal law, to be taken by all tenants to their landlord, which is couched in almost the same terms as our ancient bath of allegiance; except that in the usual oath of fealty there was frequently a saving or exception of the faith due to a superior Lord by name, under whom the Landlord himself was perhaps only a tenant or vassal. But when the acknowledgment was made to the absolute superior himself, who was vassal to no man, it was no- longer called the oath of fealty, but the oath of allegiance, and therein the ten. ant swore to bear faith to his sovereign Lord, in opposition to all men without any saving or exception : contra omnes homi-nes fidelitatein fecit” “ But with us in England, it becoming a settled principle of tenure that all lands in the kingdom are holden of the King as their sovereign or Lord Paramount, no oath but that of fealty could ever be taken to inferior Lords, and the oath of allegiance was necessarily confined to the person of the King alone. By an easy analogy, the term of alie» giance was brought to signify all other engagements which are due from subjects to their Prince, as well as those duties which were simply and merely territorial.” So in Calvin’s case it is said, Glanville, who wrote in the reign of H. II, Lib. 9, Cap. 4, speaking of the connexion which ought to be between the Lord and the tenant that holdeth by homage, saith that mutua debet esse domini et fidelitatis connexio, ita quod quantum debet domino ex homagio; tantum illi debet dominus ex dominio, prae~ ■ter solam reverentiam: and the Lord (saith he) ought to defend his tenants. But between the sovereign and the subject, there-is, without comparison, a higher and greater connexion ; for as the subject oweth to the King his true and faithful legi-anco and obedience, so the sovereign is to govern -and protect his subject.” In this country we have preserved the theory of law that all lands are holden of the State. But whether we regard allegiance as due to the Paramount Lord of the Soil, or to the supreme political authority of the State, it follows that in its nature it is single and indivisible. There can be but one paramount Lord of the Soil, holding of no superior, and ■one supreme authority in the State, controlling all others, and subject itself to no control. And when the term has been used in its appropriate sense, as I shall have occasion to explain more fully in another part of this opinion, it has never been supposed that allegiance was capable of being divided.— Allegiance means the paramount duty of fidelity and obedience —that obedience which in matters of government is due in preference to all other obedience. From its very definition, therefore, it is incapable of being divided, and we should be beating the air, if in investigating the subject before us, we failed te enquire where that first and highest obedience of a citizen of this State is due. That the Legislature, in passing the act, used the term in the sense which I have attributed to it, I think will hardly be questioned. By the ordinance of the Convention, passed on the 18th of March, 1833, it was declared “that the allegiance of the citizens of this State, while they continue such, is due to the said State ; and that obedience only, and not allegiance, is due by them to any other power or authority to whom a- control over them has been or may be delegated by the State.” This ordinance evidently contemplates the distinction to -which I have referred, between the inferior obedience due to other public authorities, and the paramount obedience, or allegiance, which is due to the sovereign authority of the State. Whether the act of the Legislature be regarded as founded on the authority of the ordinance or not, the latter may be properly referred to as a public expression of the sense of the State, affixing a meaning to the term, and I believe that no one in good faith doubts but that the Legislature did intend to use it in this sense and no other.

I have quoted the definition of allegiance, that it is a true and faithful obedience of the subject to his sovereign.” What is the meaning of sovereignty ? And who is the -sovereign in this country? It is to be lamented that many terms in common use are very inaccurately defined; indeed there are many of those in the most common use, and which men continue to repeat supposing that they understand them, to which, upon reflection, they will find that they attach no precise or definite meaning. Such are the words Sovereignty, State, Government, Nation, People. By sovereignty, is.commonly meant the aggregate of all civil and political power. Whatever the form of government may be, this sovereignty must exist as perfectly in one State as in another. “ However the several forms of Government we now see in the world at first actually began, is matter of great uncertainty, and has occasioned infinite disputes- It is not my business or intention to enter into any of them. However they began, or by what right soever they subsist, there is and must be in all of them, a supreme, irresistible, absolute, uncontrolled authority, m which the Jura summi im-perii, or the right of sovereignty, reside.” 1 Blac. Com. 48,49. It is most evident that in every State there must be some authority, whether lodged in one or many hands, or in one or more departments, which, controlling all other constituted authorities, is not itself subject to the control of any. Wherever that authority resides, is to be found the sovereignty.

It has been objected that according to the English Law, allegiance is. regarded as due to the King, and according to the authority of Calvin’s case, not only in his political capacity, but to his natural person. This'is supposed to render the term inapplicable or unmeaning in this.country. But it is plain that allegiance is sworn to the King as representing the entire, civil and political authority of the State. Whatever notions may have been expressed of tho free institutions of the Anglo. Saxons, yet anciently all the authority of the State was supposed to be vested in the King. The Whittenagemote was summoned by the King himself; and though their assent was regarded as necessary to laws, yet they seem rather to have constituted a counsel, than a substantive branch of the Govern, ment. The act adapted was that of the King, though it derived additional weight and authority from being made with the advice and consent of his principal men- Sir James M’ln-tosh, in his History of England, 2 chap, observes, “ that under Athelstane expedients were resorted to, to obtain a consent to the law from great bodies of the people in their Districts, w'hich their numbers rendered impossible in a national assembly.— That monarch appears to have sent Commissioners to hold Shire Gemotes, or county meetings, where they proclaimed the laws made by the King and his counsellors, which being acknowledged and sworn to, at those folkmotes, became by their assent completely binding on the whole nation.” “ Wherever there is a doubt concerning the extent of the powers exercised by these great assemblies, we must throw into their scale the weighty consideration that the King, instead of fear or jealousy of them, felt a constant desire to strengthen,every important act of his Government by their concurrence.” Mr. Hal. lum, in his learned and profound disquisition on the constitutional law of England (2 vol. chap. 8.) says “the right of general legislation was undoubtedly in the King conjointly with his great counsel, or, if the expression be thought more proper, with their advice. So. little opposition was. found, in these as* semblies by the early Norman Kings, that they gratified their own love of pomp, as well as the pride of their barons, by consulting them in every important businéss. But the limits of legislative power was very indefinite.” From the same author we learn that there is to be found no unequivocal trace of county representation until the 49 Hy. 3, and the deputies of boroughs were finally and permanently ingrafted upon Parlia- - me t, by Edward I.

The form of enactment in the old British Statutes shews, that they were regarded as enacted by the King, though with the consent or on the petition of Parliament.

Magna Charta was a grant from the King to his Barons.

Hallurn informs us that the Charter of Henry the First “gives his subjects the laws of Edward the Confessor, with the emeu, dations made by his father with the consent of his barons.” — In short, though the Anglo Saxons may have practically on. joyed a considerable degree of liberty, yet there was no defined limit on the power of the King. He was regarded as the source of all authority, and the functionaries of Government exercising any portion of power, were supposed to do so by do. legation from him.

And this was still moro true after the Norman conquest, and agrees with the inference which we should draw from the cha-, racter of the feudal system-. A military leader would find it wise to: consult his principal officers; he might find it absolutely necessary to the enforcing of his measures; but the act and decision would be regarded as his, and not that of his council..

Thus it is, that the King in England was regarded as sovereign, combining in himself all authority, and entitled to allegiance, or the first and highest obedience. Ant] in the time of Sir Edward Coke, it was regarded as due to the King not merely in his political but in his personal capacity. Because, it was said in Calvin’s case “ The King holdeth the kingdom of England by birth-right inherent, by descent from the Blood royal, whereupon succession doth attend; and. therefore it is usually said, to the King, his heirs and successors.” In the language of the times, the King was supposed to hold his throne by divine right, and it was impossible to separate his personal and political character. But the doctrine laid dolvn by Coke cannot be regarded as the law of England since the revolution which ended in the accession of William the Third to the throne. The calling of William to the throne was of itself an abjuration of the doctrine, and in the oath of allegiance now used,, the heirs of the King are no longer mentioned. William had no right to the throne by blood or inheritance, and allegiance could only be sworn to him in his political capacity.

There can be no doubt but in England the sovereignty, though.allegiance is still sworn to the King, as representing the entire authority of the State, actually exists in the Parliament of King, Lords and Commons. It is said in Jacob’s Law Dictionary,. “ In our Constitution, the law ascribes to the King the attribute of sovereignty, but that is to be understood in a qualified sense, i. e. as supreme magistrate, not as sole legislator,, as the legislative power is vested in the King, Lords and Commons, not in any of the three estates alone.” Blackstone — (1 Com. 51) after describing the Constitution of Parliament, says, “here then is lodged the sovereignty of the British Constitution.” Can there be any doubt but that an individual who, although by the personal command of the King, should engage in resistance to the laws of Parliament, would be guilty of a breach of his allegiance, and might be punished for treason I If so, how can it be now argued that allegiance is due to the person of the King, or in any other manner than as representing the authority of the State ?

And why do we call Parliament sovereign 1 Because it possesses all civil and political power — (not merely legislative power, in the more restricted sense in which we use the word in this country.) Because by its acts it may control all individuals and constituted authorities within its territory, and is not itself subject to the control of any. It may be bound by the ties of good faith or morality; its acts may be resisted by force or condemned by opinion, but there is no authority on earth that can legally control or revise them.

I am aware that governments have often been spoken of as sovereign, and sometimes the legislative authority has been called sovereign. But this has generally been because they were in fact sovereign. The separation, bet ween the legislative, executive and judicial departments of government, is an idea of modern origin. The ideas of men in relation to government were formerly very much derived from the Asiatic Monarchies, where the King who promulgated, the laws, sat in the gate to expound them, and was literally the executioner of his own sentences. James the First supposed that he had a right to sit in his own Court for the deciding of causes. So Legislative power was supposed to include all power. Every thing might be regulated by law, and the executive and judiciary were regarded merely as the agents of the Legislature to carry their acts into effect. Not until the formation of our own government was there any well established distinction between ordinary legislation and those permanent and fundamental laws which we distinguish by the name of a constitution, nor any distinction with respect to the authority which should enact them. Every thing was referred to legislative power. But if there be an authority to alter, abolish, direct and con. trol the government, can we fail to refer sovereignty to that 1

In a despotic monarchy the monarch is properly called so. vereign, though his power may be in fact much limited by the fear of provoking resistance. There is no authority in this form of the government to control him or reverse his acts, and all other constituted authorities exereise their functions as his delegates. Some writers have maintained a natural sovereignty in the people of every country, and their right to alter and abolish their governments at pleasure; but this is a sort of right which can never be the subject of investigation in Courts. There may be such a natural and moral right; but this is-•I1”*0 distinct from legal right. Under such a government there is no method of appealing to the people and taking their suffrages, nor would any suffrage of theirs have the authority of law. If the people should interfere, to change such go* vernment, it would not be by law,, but by force. It is in allusion to this that Burlamaqui says, vol. 2, p. 13 Hence the distinction which some political writers make between real so-vereignty’ which always resides in the people, and actual sorer-eignty, which belongs to the King, is equally absurd and dangerous. For it is ridiculous to pretend that after the people have conferred the supreme authority on the King, they should continue the possession of that very authority superior to the King himself.” No authority has ever been regarded as. sovereign whose acts are subject to bo legally controlled or an* nulled by a superior authority.

Regarding then allegiance as the obedience due to the Sovereign, I proceed to enquire where the sovereign authority of this State is vested. And first,. I shall consider it without reference to the connexion which the State has formed with the other States of the Union by means of the federal constitution,, but regarding it as separate and independent. And here what, possible doubt or question can arise ? The Constitution of this State declares that “ 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.” The same thing, with some variation of form, is repeated in every constitution of the several States.of the Union, (except that of Rhode Island,, which still retains the royal charter) as in that of North Carolina, " that all political power is vested in and derived from the people only.” If there be any principle which may be regarded as fundamental and universally acknowledged in this country, it is this — that sovereignty resides in the people, and all the authority of government is delegated from them. And this is not that imaginary sovereignty of the people which has been supposed to exist under even a despotic monarchy. The constitution itself has provided in what manner the people shall be appealed to, in a Convention called by two thirds of both branches of the legislature. And their acts have the authority of law, and of the highest law. They have power over the government, to modify, control and direct it; and this has no analogy to the revolutionary power, which is attributed to the people elsewhere, of changing their government. They may abrogate any act of the government, and all constituted authorities are bound to respect and obey their determination. There is no power in government which is not held by delegation from them, and no autho* ■pity in government which can reverse or control their acts.— Let it bo recollected that I now speak of the State as separate and independent, and can we hesitate in assigning the sover. eignty 1 It is hardly necessary to remark on some matters which were urged in argument — as that the people are bound by the rules of duty and morality. Undoubtedly they are thus bound. They are responsible to opinion, they are bound by good faith, they may be resisted by force or subdued by superior power, but their acts are not subject to the legal control of any-constituted authority. To suppose so would be a plain absurdity, as all constituted authorities are constituted by them and derive their power from them alone.

When it is said that allegiance is tbe obedience duo to government (and writers have used such terms) the only difficulty arises out of the ambiguous meaning which has been affixed to the word government, It has been sometimes taken to mean the chief executive authority ; sometimes the legislative authority ; sometimes it is used as synonimous with State or Nation; sometimes to express the aggregate of all political power, whether for the purposes of ordinary administration or of changing the fundamental laws — as in the instance of the British Parliament. Indeed, it is difficult to use the term frequently, without confounding its various senses, and I am aware that in some degree I may be guilty of this. In this latter sense it is coincident with sovereignty ; and thus used, we should say in this country, that the people constitute the government. But this would be confounding things which our institutions have separated — the supreme or ultimate government of the people, with the ordinary government which they have created. In M’Cullock v. Maryland, 4 Wheat. 403-4, a distinction is made which I confess I find it difficult to understand, between the people of a State acting in Convention, and the sovereignty of the State. It would seem, though not very distinctly expressed, that sovereignty is attributed to the State Legislatures. But surely, in the common understanding of all mankind, sovereignty has been understood to mean the highest and ultimately controlling authority in matters of government; and will it be said that an act of the Legislature is of higher authority than an act of the people assembled in Convention ? How then is it that we daily declare acts of the Legislature as void for re. pugance to the Constitution ? If allegiance means the obedience due to government, does it mean obedience to the act of the Legislature 1 But if an act of the Legislature be inconsistent with an act of the people in convention, am I not bound to disobey it ? If allegiance be the obedience due to government, do I owe it to every functionary of government 1 To the most subordinate magistrate or ministerial officer 1 Who lias ever before thought of using the term in this sense ? My alie-giance to the sovereign binds me to obey all those function” aries, when they act in conformity to the authority which the sovereign has delegated ; but the same allegiance binds me to disobey and oppose them, when their acts are not so authorized. It seems to me that thus to interpret the term, would be to render it utterly unmeaning, and to defeat the intention with which we perfectly well know the legislature to have used it.

When it is said, as in argument, that allegiance is the obedience and fidelity due to the constitution, and that the oath to support the constitution is in effect an oath of allegiance, it seems to me again that the word is used in a sense entirely new and unauthorized. Laws of every sort derive their sanction from the authority which enacts them. I am bound by an act of the Legislature because I own obedience to the Legislature. I am bound by an act of the people in Convention, because my first obedience is duo to the people. Allegiance has been ever understood to have relation to the enacting or ordaining authority, and not to the act which is the result of the exercise of authority. There may be acts of the people which are intended for a temporary purpose, and which cannot properly be ranked among those permanent, fundamental laws which we denominate the constitution. Yet if the people be indeed sovereign, do I owe less obedience to those acts that to the constitution itself?

I come now to consider the question as the state stands in relation to the other states of the union, by the adoption of the federal constitution. And here it seems to me that the only question to be determined is, whether our system of government, under the constitution of the United States, constitutes a single state or nation, or a confederacy of States. I would direct attention particularly to this point, because I am aware that vague and undefined notions have prevailed, that our system is something utterly anomalous and unprecedented ; and men have been undetermined whether to class it as one or the other. Yet I cannot conceive that it should not be one or the other. It is true that a single, or as it is commonly called a consolidated State, may have many of the characteristics of a confederacy; as in France, where the local governments of departments are established, exercising many of the powers of legislation and government, but subject always to the control of the supreme or central government. So, as we shall see, there may be a confederacy having many characteristics of a consolidated state. But I cannot comprehend that in its essen-*ial character, if rightly understood, things should be so bal-sliced and arranged as that it should constitute neither or both.

The essential character of a Confederacy is that the States remain sovereign ; and the test of that sovereignty would be, to enquire whether if one State should think proper to withdraw from the confederacy, all citizens and constituted authorities within its territorial limits would be legally bound to obey and sustain that act, or would owe a higher obedience to some other power.' If such higher obedience would be due elsewhere, the State (improperly so called) would be in no degree sovereign ; it would be but a department of a larger consolidated State. If the State would be thus entitled, in the last resort, to command the obedience of its citizens and constituted authorities, it is a perfect sovereign according to the view I have taken of sovereignty. Itissaidby Vattel,B. l,c. 1,54, that “ every nation that governs itself, under what form soever, without any dependence on foreign power, is a sovereign State. Its rights are naturally the same as those of any other State.” Yet, s. 10, it is said, “several sovereign and independent States may unite themselves íogethér by a perpetual confederacy, without each in particular ceasing to be a perfect State. They will form together a federal republic: the deliberations in common will offer no violence to the sovereignty of each member, though they may in certain respects put some constraint on the exercise of it, in virtue of voluntary engagement. A person does not cease to be free and independent when he is obliged to fulfil the engagement into which he has very willingly entered.”

“ Such were formerly the cities of Greece ; such are at present the seven United Provinces of the Netherlands, and such the members of the Helvetic body.”

So Burlamaqui,2 vol. Part?, c. 1, s. XL,in relation to compound forms of government — “ these may be defined an assemblage of perfect governments, strictly united by some particular bond, so that they seem to make but a single body with respect to the affairs which interest them in common, though each preserves its sovereignty full and entire, independently of the others.”

If it be indeed a confederated republic, it is immaterial what powers have been granted to the central government; these cannot in any degree impair the sovereignty of the States. The State is still considered as governing itself, because, according to Vattel, it is governed by virtue of its voluntary engagements”, and it depends on itself at any time to throw off those engagements, and -to release its citizens from that authority which, by its sanction and permission, has been exercised over them ; and this, although the confederacy has been stipulated to be perpetual. I need hardly say that such a State'is bound to its confederates by the tye of good faith, and in case of separation is answerable to them as one nation is answer, able to another. They may make war upon it, and if they can, subdue it. But this is the only sort of control which can be exercised over a sovereign. Such has been the understanding of the confederacies mentioned by Vattel, and of all the other confederacies that ever have existed. I have insisted on these principles, because I believe them to be simple and obvious, and according to the common understanding of mankind, though they have been in some degree lost sight of in our country; and I am aware that a return, even to simplicity, from confused and undefined notions which have commonly prevailed, is apt to be regarded as innovation and refinement.

That the United States, previously to the adoption of the Federal Constitution of 1787,^ere merely a confederated republic, has been on all hands conceded in argument. And though a contrary opinion has been thrown out in some portion of the Union, yet this seems to have been rather the effect of an unusual method of thinking, or a desire of originality, than to require examination or refutation. There was no characteristic of a single consolidated State. No law could be carried into effect within the¡limits of any State, but by the immediate authority of the State itself. The articles of confederation of 1778 expressly declare that each State retains its sovereignty, freedom and independence. So early as 1776, and before the declaration of independence, this State had adopted for itself a separate constitution. (See Ramsay’s History of South Carolina, chap. VII. Sec. 3.) The only argument for the opinion seems to have been derived from confounding together the different senses which have been attributed to the word “ nation.” As having a common origin, common language, and common history ; as being united by the highest interests, in the bonds of the strictest alliance, and in peace, and in war, pursuing common objects, we might be justly called a nation ; as the nation of the Greeks or of the Germans, much less closely united than ourselves, might be spoken of. In this sense, we may hope long to continue a nation. But this is very distinct from the other sense of a single body politic, united under the same sovereignty. If the States were sovereign members of a mere confederacy previous to the adoption of the present Federal Constitution, we are next to en-quire whether they have ceased to be so, in consequence of their act in adopting that constitution. I suppose that the people of the several States might abandon their separate sovereign character, and become consolidated in a single 'sovereign people or nation. Whether they have done so, must be made out from the character and provisions of the constitution itself., Unless it can be made out from these, we must conclude the States to remain sovereign as before. And in drawing so im. portant an inference as that the people of the States have abandoned the right of independent self government, which every nation in the world, even the weakest and smallest, has prized so highly, we may properly expect it to be made out, not from loose expressions and ambiguous provisions, put by the clearest expression or the strictest and most necessary implication. In our very complicated system, there may be provisions very difficult to reconcile to the supposition of the States retaining perfect sovereignty as independent members of a confederacy, as on the other hand there may be as many and perhaps greater difficulties in supposing that they have abandoned the character and become parts of a single consolidated state. But to raise difficulties is not to establish a proposition.

The parts of the constitution from which it is concluded the states have abandoned their sovereignty, seem to be the following:

The introductory words of the constitution “We the people of the United Statesimporting that it was adopted by the people of the United States as one people, or that they thereby constituted themselves one people :

The provision that “ This constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made, under 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 thereof notwithstanding

The provision, that the constitution may be amended by the Legislatures or conventions of the people of three fourths of the States t

The provision that the United States shall guaranty to each sfate a republican form of government:

The provision to punish treason against the United States :

An inference is also drawn from the power given to Congress to prescribe a uniform rule of naturalization.

Now it may be observed that,here is nothing like an express renunciation of sovereignty | and notwithstanding their Union in this constitutional compact, the States continue to exist as states, and exercise most of the functions of government as before. I should hardly think it necessary to make any remark on the introductory words of the constitution, if others had not laid stress on them before.

The words certainly may import the people of the several states as distinct bodies politic. The federal Government has been called a government of the people, as distinct from a government of the States. This is said in McCullough v. Maryland. The chief Justice adds It is true, they acted upon it in their several States, and where else could they iiave assembled ? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the people into one common mass. Of consequence, when they act, they act in their states. But the measures they adopt do not on that account cease to be the measures of the- people themselves, or become the measures of the State governments.Certainly no one ever supposed that the federal Government was the work of the State Governments; though not less the work of the States. What arc the States in a political sense but the people of the states in their sovereign character ? It cannot be meant that forming one American people, their voice was taken in the territorial divisions of States ; as within a State the voice of the people is taken in their counties. Is it necessary to ask whether each State did not adopt the constitution, as a distinct, independent, sovereign body politic, and whether it was not bound by the constitution solely in consequence of its separate act in adopting it ? The States — each State for itself — delegated to the federal Government certain specific and limited powers. It is not pretended that that government can exercise any power not granted. It remains subject to be controuled, altered or abo-. lished, by the States, and can therefore possess no portion of sovereignty. Is not this saying in other words that the States retained their sovereignty ?

The provision that the constitution and laws made in pursuance of it shall be the supreme law of the land, has been much relied on. Yet I would remark that it is no more than must necessarily have been implied, if there had been no such article in the constitution. The words are emphatic, but the meaning of it is, that the federal constitution and laws, when they come into collision with the constitution or laws of a State, shall take place of them, and be regarded as of higher authority. But without this, there could have been no federal government. The State governments are of general, and the federal government of limited powers. The constitution and laws of each must continually come into conflict. No tax could be collected ; no act of jurisdiction could be exercised by any federal authority within a state which would not be a violation of the constitution or laws of the state, unless it were justified by the federal constitution and laws. If they are to have any operation at all, it follows then of the strictest necessity, that that constitution and the laws made in pursuance of it, when they do come in conflict with the State laws, must be regarded as of superior authority. It is regarded as material, that they are not only supreme in respect of the laws, but also of the constitutions of the States — the acts of the sovereign people themselves. All the States had constitutions at the time of forming the federal constitution, and if there had been no such article as we are considering, the very act of adopting the federal constitution would have been of itself an abrogation of any part of the state constitution which came in conflict with it. And this superior authority the federal constitution and laws must continue to have while they continue to exist. But by what authority is it, that they are the supreme law of the land within the limits of a state ? To what other' authority on earth can it be referred than of the people of the State in their sovereign capacity adopting the federal constitution? And by what other authority do they continue to bind the citizens of the state ? So far from interfering with any duty or obedience due by the citizen to the constitution and laws of the United States, or the oath which I have taken to support protect and defend the former, the very allegiance which I owe and which I swear to the State, binds me to support and-obey them as the supreme law of the land. But it may be observed that an oath to support the constitution is not an oath of allegiance to the State. If the people had established a double government within the limits of the state itself, one charged with the functions which have been delegated to the federal government, the other, as it now is, exercising generally all powers not delegated to the first, the acts of the former must necessarily have had the same supremacy. There would bo nothing impracticable in this. But instead of establishing the government which is charged with its foreign relations &c. for itself alone, the state has established one in conjunction with other sovereign states.

That the federal government may carry into effect its laws within the territory of a State; that it is called, and acts as a government; that it may affect the persons and dispose of the property of individuals, without any direct concurrence of tho States; have been used as arguments against the sovereignty of the States. But the difficulty arises only from confounding things which we have been the first to separate, and which we must necessarily separate, sovereignty and government.— For some purposes there is a consolidated government, but there is no consolidation of sovereignty. Regarding the federal functionaries as acting within the territory of a State under the sanction and authority of the State, they become the functionaries of the State itself, and do not in any degree detract from its sovereignty. This has been common in some degree in other confederacies. The States General of Hoi* land- were called, and were a government, and conducted foreign relations ; yet who ever doubted but that this was a pure confederacy ? Under our old confederacy, military officers were appointed by the Common Counsel or Congress, who restrained the liberty of citizens within the States, and military tribunals exercised jurisdictien — Courts of admiralty were ap. pointed, which exercised jurisdiction over persons and property. Nay, more than this, the tribunals of a power entirely foreign have been allowed to exercise jurisdiction within the limits of a State confessedly sovereign. Such tribunals now exist in Turkey, which is certainly sovereign, though perhaps overawed by superior power. Foreign Ecclesiastical tribunals were permitted to exercise jurisdiction over the subjects of every government in Europe, even to the establishment of the inquisition. They were permitted in England by William the Conqueror, who even allowed appeals to Rome; though he undoubtedly was every inch a sovereign, and rejected with indignation the Pope’s demand of homage: (4 Blac. Com. 105; M’Intosh’s Hist. Eng. chap. 3, ann. 1087.) They long continued to exercise jurisdiction in England. The subjects of coin and currency, and of weights and measures, are subjects of common interest to the whole commercial world. If all the governments of Europe should unite in appointing a common agency to regulate these matters and to punish offences against their regulations in the dominions of each, would they be less sovereign on that account ? In all these instances, the jurisdiction must be regarded as exercised under the authority of the sovereign in whose dominions they are exercised, and it must depend on his good faith or his prudence how long they shall continue to be exercised. How vain, from these characteristics of the constitution, to infer the consolidated character of our system!

So of the argument drawn from the nature of the powers granted to the General Government — to make war and peace; coin money; punish treason, &c. which are said to be powers appertaining to sovereignty. This may properly be said in other countries where the sovereign exercises those powers in his proper person. But in this country, the sovereign exercises none of the powers of government directly and in person.

Whether the powers of government be greater or less, can make no difference. In one sense they may be said to be sovereign powers, as being exercised by delegation from the so. vereign; but to speak more appropriately, delegated power is the converse of sovereign power. The sovereign power of the people is not delegated but recognised.

The next provision of the Constitution from which the con. solidated character of our system has been, it seems to me somewhat singularly inferred, is that which gives to three, fourths of the States the power of amending the Constitution. Here, it is said, is the ultimate sovereign power, which may control the act of the people of a single State, and modify their institutions at its pleasure; and how can a'people be call-cd sovereign, which is liable to be thus controlled? Let us first see how the matter would stand if there were no such provision in the Constitution. In that case, I take it to be clear that as no State could be bound by the Constitution till it had adopted it for itself, so no amendment of the constitution could be made but by the • assent of every State of the Union. It was indeed argued, but I apprehend without due reflection, that in case of such omission, the power of amend, ment would have been with a majority. A majority of what? of the States, or of the aggregate people? This argument could only be sustained by taking for granted the whole matter in dispute, and assuming that we have formed one consolidated people ; and then how would you infer that a mere majority might alter the Constitution ? But it needs no further comment. In the case we are supposing, then, no State could be bound by any additional article or stipulation but by its own express assent. In that case'it- might be said, as now, that the sovereignty was not in the States separately, and severally, but in the aggregate of all the States together, because their united act might control the act of one. But this is the condition of every confederacy which has over existed or ever can exist. It needs no sage to tell us that many sovereigns may do what no one singly can do ; extending the effect of their acts over the territories of all. But in every confederacy, by the assent of all the members, the acts of one may be controlled or abolished. But this is by his own assent, and it is by his act alone that the effect is brought about. The vefy fact, then, that there was reserved to the States the power by their unanimous assent to alter or abolish the federal constitution, would be entirely conclusive that no sovereignty was possessed by that government, but that it was reserved to the States— not aggregately, but severally. No one could be subjected to any new institutions but by his own separate assent. The idea of several States — distinct bodies politic — constituting one aggregate sovereignty, is entirely a new one. But in relation to tlie matter we are considering, the case is the same exactly^ there being such a provision of the constitution, as if there were none such. It was justly conceded in argument by one of the counsel who argued against the separate sovereignty of the States, that it could make no difference that the power of amendment was given to three-fourths. As in a State, the act of a certain majority is regarded as the act of the whole people, so the act of this majority of the States, is taken as the act of the whole. By adopting the constitution without the provision, the State would have bound itself as a sovereign, to submit to and perform all its articles and stipulations, and - by assenting to and adopting any amendment, it would have been also bound. By adopting the constitution with this provision, it has in like manner bound itself to submit to such alterations as may be made by three-fourths. It is thus by its own sovereign act and assent that any new article can have effect with, in its territory. I find from a late historian, that when Appen-zoll was admitted into the confederacy of Swiss cantons, in addition to other unequal conditions, the other confederates reserved the right of adding to or taking from the articles of the treaty at their discretion.” Now here was a treaty of confederacy in which the contracting parties were unquestionably and completely sovereign, and yet less than the whole might bind the remaining member without its direct assent. Yet that member was only bound as a sovereign, and restrained merely by good faith or the dread of superior force from renouncing the compact at any time. If this be so, how can any inference bo drawn against the separate sovereignty of the States, because loss than the whole may add to the articles of our constitutional compact? And if we had no such instance, would it not bo easy to conceive that the Holy Alliance of European Sovereigns might, without detracting in any degree from their sovereignty, stipulate that upon the concurrence of a certain majority of the contracting parties, war should be declared on behalf of all? The features of the Constitution which I have examined are those which have been most frequently and most plausibly relied on to establish the consolidated character of our system. The others may perhaps bo des-patched more summarily.

“ The United States shall guarantee to every State a republican form of Government.” Here, it is said, is a plain restriction on the power of the people of a State to model and control their government at their own pleasnre. But how “ guarantee ?” By law or by force ? For if it is intended by the latter means, there is nothing inconsistent with the absolute sovereignty of the people. All sovereigns are liable to that con-irol. If the people of the State should establish an hereditary monarchy, or any other constitution not republican, could the Congress of the United States, by law, abolish that Constitu. tion, form another for the State on republican principles, and impose it on the people? Could a Convention of the States do this? This is a mere absurdity. The Constitution of the United States certainly contemplates no such thing, and that would not be a republican government which was forced on the people against their will. The only meaning which I can attribute to the article, is that which was given in argument— that if a State be attacked by external force and a government imposed on it, the arms of the Union shall be employed to re. pel that force, and leave the people to form their own constitu. tion. How could the people be compelled to elect representatives, if they had abolished a representative government ?— The people of the State in relation to this matter could only be controlled by force, and not by law, and this does not derogate from their sovereignty. — Nearly all the powers of Europe, by the compact called the Pragmatic Sanction, guaranteed the succession of Maria Theresa. So England and France guaranteed the Spanish succession. Yet Spain and the German States were not less sovereign on this account.— The guarantee was to be made effectual by arms.

Treason may be committed against the United States, and it is said that treason in its definition is an offence against allegiance. Undoubtedly any citizen who should levy war against the United States would be guilty of an offence against, his allegiance, even supposing the States to be separately sovereign. The Constitution and laws of the States are the institutions of his own sovereign, to which he owes obedience ; yet it is properly called treason against the United States, because the war is levied against the States in their united capacity, and it would be only effected phraseology to call it otherwise. Suppose the power of punishing treason had not been given to the Federal Government, would it have possessed that power ?— It possesses no powers but those which are given directly or by necessary implication. It would have been a bold construction by which this power should have been assumed.— But in that case, is there any doubt but that a State might have punished one of her own citizens who had levied war against the United States, as for a breach of his allegiance to herself? It was proper to give to the common government jurisdiction of an offence against the States in their confederated capacity, but this has nothing to do in determining the consolidated or federative character of our system. If the svstem be federative, then it is the breach of his allegiance to his State that actually constitutes his treason, and he could not commit treason by any act dono in pursuance of the command of his State. If we aro a single nation, then it is the breach of allegiance to that which makes his treason. But nothing is to be inferred one way or the other from the mere fact that the common government has power to punish the offence.— Besides, other offences than a breach of allegiance to the so. vereign have been distinguished by the name of treason, and supposing the States to be a more confederacy, the offence of levying war against them in their united capacity would naturally have been termed so.

No doubt a citizen of one of the States of Holland might have committed treason against the confederacy, by levying war against them in their united capacity.

It is said that there may be a citizen of the United States, who is not a citizen of any State, and the instances are put of an inhabitant of the District of Columbia or of a Territory.— The Constitution provides that “the citizens of each State'shall be entitled to all the privileges and immunities of citizens in the several States.” Does this contemplate a citizenship of the United States as distinct from being the citizen of a State ? And there was a similar provison in the articles of confederation of 1778, and the term “ citizen of the United States ” was used as commonly and as appropriately before the adoption of the constitution as since. Congress has the power to prescribe an uniform rule of naturalization. Unquestionably.— As the citizen of a State once admitted is entitled to the privileges of a citizen in every State, it was proper that the common government should prescribe the terms of admission, as a security against improper citizens. But what has this to do with the matter we are considering ? With respect to the Territories. Some of the confederacies which have heretofore existed — and pure confederacies — have possessed, and all plainly might possess, subordinate dependencies, their joint property and subject to their joint government. Such are our territories. With respect to these, the States may be said to be sovereign in their united capacity; and men may call the inhabitants of them citizens of the United States, if they will; but what has this to do with the rights of the States ? If Congress may authorise the naturalization of a foreigner in a territory, I suppose he would be in the same condition as an inhabitant born and reared in the territory. To argue from the civil condition of such an one within a State, or from the condition of the territories in case of a separation of the Union, would be an attempt to illustrate that which is unknown, from that which is more unknown.

It is difficult to say from what source zeal may not draw arguments, but I believe I have considered the principal features of the Constitution from which the renunciation of sovereignty by the States has been inferred. With.respect to these and all others which may be relied on, permit me to enquire — suppose an amendment had been added to. the Constitution, declaring in express terms, that “ each state reserves to itself its separate and perfect sovereignty as the member of a confederated republic,” would that have been, in any degree, incompatible with the provisions of the Constitution in question, or derogated from or impaired them ? Might they not have all the operation and effect, to every intent and purpose, that they now have ? There would still be a people of the United States; the constitution and laws of the United States would still be the supreme law of the land; the constitution might still be amended by three-fourths of the States; the United States would still guarantee to each state a republican form of government ; treason against the United States would still be punished ; Congress might still prescribe an uniform rule of naturalization, and we should still possess our territories. The renunciation of sovereignty is implied from those particulars, but must not that implication be manifestly fallacious, all the grounds of which are consistent with a state of things exactly the opposite of that which is inferred? Indeed, in adopting the Constitution, Virginia did expressly reserve her sovereignty, and so I believe did New York. Did this mean nothing? or in spite of the express reservation, are we to. suppose that they renounced sovereignty 1 Or can we conceive that some of the States of the confederacy retain their sovereignty, while others have parted with it ?

It has.been admitted in argument by all the counsel who have argued against the oath of allegiance,^with one exception, that in case of a secession of the State from the Union, the citizens and constituted authorities of the State would be bound to obey and give effect to that act. They are not perhaps aware that they have admitted every thing that is in dispute. If this be not a confederacy merely, in which the States retain their perfect sovereignty, then the separation of the State from the Union, with the determination that the laws of the Federal Government shall no longer be executed 'within the State, would be merely an act of rebellion; and shall constituted authorities, and above all Courts of Justice, be called on to sustain an act of rebellious force ? The right of secession has been termi ed a right of revolution. I regret to observe the want of precision in the ideas which have been thrown out on this subject. That is a sort of right which, as I before observed* can never |J0 the subject of discussion- in a Court of Justice, which is conversant only with matters of legal right. The term revolution is one of those which have been used in various senses.

Sometimes any change is called a revolution; sometimes only a great or fundamental change; and in this sense it would be impossible to determine what degree of change would amount to revolution. But in its proper meaning, a revolution *n g°vernment's that change which is brought about by means of force or terror, and without the authority of law. Is it t0 this sort of revolution that courts are to give effect ? Man has a natural or moral right to resist oppression; but this is not a legal right. He is bound to obey the laws, and Government has a legal right to punish him if his resistance should prove ineffectual, and Courts of Justice are bound to do so, if he be brought before them for the purpose. If our Federal Constitution be, as we suppose, a compact of confederation merely, the States retaining their perfect sovereignty, then, consistently with the constitution itself and my oath to support it, I am bound to obey the mandate of the sovereign, commanding that that Constitution shall no longer have effect, nor the federal laws be executed within its territory. But if the State be not the sovereign in the sense which I have given to tlio word, then it would be no more than if the people of a District within the State should determine that the laws of the State should no longer be executed within its limits. Would this be, any thing more than an act of rebellion? and would not an officer of the State within that district, even although elected by the people of the district itself; be bound by his duty, and his oath to support the constitution of the State, to go on to execute the laws and suppress that insurrection ? I have sworn to support the Constitution of the United States; but unless my State be a sovereign, which having alone imposed that obligation, alone has the right to discharge it, could I, in the event of an act of secession, sustain that act in my official capacity, and refuse to give effect to- the constitution of the United States, without a most flagrant and palpable violation of my duty and my oath? And it may be observed, as an inference of the strictest necessity, that if the people of the State itself be this sovereign authority in the last resort,'to which obedience is due in preference to any other authority, then if they should think proper to declare that a particular law of the federal government should no longer be executed within their territory, though this might be a breach of their faith pledged to the constitutional compact; though it might justify the other States of the confederacy in renouncing the compact altogether, or be of itself a virtual renunciation of the compact, yet all citizens and constituted authorities within the State would be bound to obey and give effect to, the act of the people. To this extent, they would be released from the obligations which the State on their behalf has contracted to the other States of the Union.

I should have been less willing to express these views, if I thought, as many seem to do, that by thus laying bare the foundations of our institutions, they would be in any degree weakened. On the contrary I believe — and the opinion is founded on no slight or hasty reflection — that it will tend to strengthen them'; and that on these principles being well and thoroughly understood, depends the harmony of our Union, the permanency of its institutions, and the success of our experiment in government. Every State has a sufficient inter, est in the Union, from the strength and security it derives from it, and can have little temptation to separate from it or arrest the operation of its laws, but on the full belief that it suffers injustice from its confederates. The State which interposes its sovereignty, will necessarily be of the weaker party — of the minority, and though sovereign, liable to be assailed by superi- or force. This will be a security against the hasty and injurious interposition of its power. But what other security is there against the injustice of majorities, having the greatest interest and temptation to commit injustice ? Does the experience of the world inform us that it is less necessary to guard against the abuses of power, than against the excesses of weakness'?

When it is said that there is a double allegiance due to the federal and State governments, it may be asked, in case of the separation of the State from its confederates, to whom will it then be due. Those who contend for the higher obedience as due to the federal authorities, in fact contend for exclusive allegiance, in the same sense that others contend for exclusive allegiance as due to the State. Will the citizen be at liberty to choose his allegiance ? That would be to say that he owes no allegiance at all. The highest obligation of a citizen, imposed by nature as well as by law, cannot be the subject of choice. Will entire allegiance be due to both ? Then in case of conflict, he must necessarily be a traitor to one, and liable to punishment. This would be a hard and intolerable condition of the citizens of a country calling itself free. As I have said, in the ordinary progress of the government the citizen’s alie, giance to the State will detract nothing from the duty and obedience which he owes to the laws and constituted authorities of the federal government, but on the contrary- will be an additional sanction to them. Only in the case of a final and irreconcileable conflict of authorities, his first duty will bo-due where nature and .right feeling would direct it — to the immediate community in which he lives, and to which he is united by his most intimate associations. I conclude that under the Federal constitution the allegiance of the citizen is due to. the State, and consequently the oath prescribed by the legislature is not in violation of that constitution.

I am next to consider it with reference to the constitution of the State. And here, if we were to urge it as adopted under the authority of an Ordinance of the people, there could be no question on the subject. It would have the same authority as the constitution itself; it would be an act of sovereign aulho-rity, which neither this court nor any other constituted authority could revise or conlroul. Whatever authority this court or any other constituted authority in this State possesses, it pos-esses by delegation from the people, and is exercised in their right. What they have failed to delegate, even if it operates injuriously and in bad faith towards their confederates, the Court cannot possess. For this Court, then, to sit in Judgement on the validity of an act of the people, in reference to any other authority, would be a manifest absurdity. But the question was made whether the Convention which passed the Ordinance was not limited by the purpose for which it was assembled ; and I am of opinion that it was so limited. And this detracts in no degree from the sovereign character of its act when within that purpose,. We have no authority to judge of, revise or control any act of the people ; but when any thing is. presented to us as the act of the people, we must of necessity' judge and determine whether it be indeed their act. The sole difficulty seems to me to have arisen from confounding together the authority attributed by the constitution to the people, with that of the convention. Certainly the convention was not the people for any other purpose than that for which the people elected and delegated them.

An argument was drawn from the supposed absurdity of the Legislature, an inferior authority, putting limits to the power of its superior and creator. Bu,t I think it is not a correct stating of the question. The question is of the authority of the convention. An Ordinance is produced to us passed by a certain number of individuals assembled at Columbia. This gives it no authority as an act of the people. But we are told they were elected by the people. This, however, is not enough. For what purpose were they elected by the people? Tore-present their sovereignty. But was it to represent their sovereignty to every purpose, or was it for some specific purpose ? To this no other answer can be given than the act of the legislature under which the convention was assembled. Certainly the people may, if they will, elect delegates for a particular purpose, without conferring on them all their authority. To deny this, would be to detract from the power of the people, and to impose on them a most inconvenient and dangerous disability. If before the adoption of the present constitution, the people electing delegates in their primary capacity, had, by a majority of their ballots, specified a particular measure to bo considered and decided in convention, will it be pretended that the convention would have possessed authority for any other purpose ? But the Legislature in passing the act for calling together the convention, were not acting in their legislative capacity. The act has no relation to the general powers of legislation. They were the agents of the people for this particular purpose, and intrusted by the constitution to speak their voice. But suppose there had been no such provision in the constitution, and the legislature had passed an act recommending to the People to meet in convention for a speci-fiepurpose, and inpursuancc of the recommendation the people had elected delegates accordingly, what right or reason would I have to conclude that the people intended to intrust this convention with their authority for any other than the purpose specified ? This would be plain usurpation on the power of the people.

It was said-that the governor is the agent of the people for the purpose of convening the Legislature on extraordinary occasions. If he should assemble the legislature for a particular specified purpose, would their authority be restricted to the consideration of the specific matter submitted to them 1 Certainly not. The Legislature has been elected by the people for the general puposas of Legislation, whatever these may be, and it is not for a co-ordinate authority to restrict their power. The powers of the Legislature have been fixed by the constitution, and there is no other authority in government which can add to or take away from them. The powers of a convention have not been thus fixed, and it is for the people, if they will, to fix and define them in every particular instance. There has been no convention called, I believe, in this or any other State, which was not called for purposes more or less specific, and with powers more or less limited. Take the instance for example of the convention which was called to consider of the propriety of adopting the Federal constitution. If that had thought proper to go on to form a constitution for the internal government of the State, would that have bound the people, or been recognized by the constituted authorities as the act of the people? No doubt, there might he a conven-fion unlimited in its powers, and representing all the authority of the people. But when they are about to confer this high authority, certainly they ought to be aware that they are doing so.

I should not have considered this part of the subject so much at large, if I did not regard it as of the deepest practical importance to freedom and the security of our institutions. Why is it that to affect an amendment of our State Constitution, two thirds of both houses of two successive legislatures must concur, and in the mean time the proposed amendment must be published for three months ? Why is it that to call a convention of the people, two thirds of both branches of the Legislature must concur ? It is for the security of those fundamental institutions on which the rights of individuals,' and especially the rights of a minority, are supposed to depend. It is to prevent great changes by a mere numerical majority in the Legislature, acting perhaps hastily, under excitement and with partial information. It is to secure that the intended changes shall be brought fully to the view of the people, and canvassed before them ; that their opinions may be informed and their judgements determined respecting them ; and from the forms that must be gone through, that time enough for these purposes shall be allowed. It is to the people thus acting that we attribute the character of sovereignty. But if a convention called for one purpose, may proceed to act upon others not committed to them, then all these guards of the Constitution will be rendered nugatory. When the convention is assembled, new projects may be started, which the people never contemplated, even in the most general way, as to come under its determination. The.most important changes may be made hastily, in which it is possible that if the matter were fairly before them, not one tenth of the people would concur. With what truth or propriety could it be said that these wore the acts of the people 1 It is to be remarked that the members of a convention are not subject to the same degree of responsibility as tho officers of Government. If the constituted authorities of government should contumaciously, or capriciously, or erroniously, refuse to recognize and enforce that as the act of the people, which was in truth their act and within the purposes for which they had assembled their convention, the most ample remedy would remain in the hands of the people themselves, whose controul over these authorities is absolute. But if a convention be not thus limited, it is easy to conceive that an act may be done in relation to a matter which a majority of the actual people never intended to entrust to the convention, and of which a majority of the people disapprove ; and yet if that majority be not large enough to command a vote of two thirds of both branches of the Legislature, for the purpose of calling another convention to annul the act, it may remain fixed on the country forever, without the possibility of being shaken off. And would you call this institution of a minority, the act of the people 1

If by their agents (two thirds of the members of both branches of the legislature) the people are not allowed to impose restrictions on their convention, they cannot do so at all. It will, most evidently, he practically impossible for them to do so by their votes at elections. How is it possible that there should have been such concert among the people as would have enabled them to specify the purposes for which the last convention was assembled 1 Perhaps, not a hundred voters would be found to agree in the same instructions. And may not two thirds of both branches of the Legislature be safely entrusted to speak the voice of the people on this behalf ?

To say that the power of conventions cannot be limited, would be to render the people distrustful of them and unwilling to assemble them, and will be likely to have the effect of hindering or defeating appeals to the people when the highest public interests require their interposition. It is true, that such appeals are not contemplated as likely to be frequently made. It is one of the advantages which we suppose ourselves to possess, that time and difficulty are interposed in calling into action that supreme irresistable uncontrollable authority which must necessarily exist in every state ; which in other countries is lodged in governments and may be daily called into action for purposes of oppression ; and which would exist in government in our own country, if there were no appeal to the higher authority of the people. It is one of our securities for freedom, that the sovereign rarely interposes, and never unless there be a dilemma worthy of such interposition. But' certainly he ought not to be prevented from interposing from an inability to controul the instruments by which he makes his interposition effectual.

But it is a different question •whether the convention in the present instance exceeded the purposes for which it was assembled. The act of the Legislature for calling a convention directs “ that a convention of the people of the said State shall be assembled &c. to take into consideration the several acts of the Congress of the United States imposing duties on foreign imports for the protection of domestic manufactures, and for other unauthorized objects; to determine on the character thereof, and to devise the means of redress ; and further in like manner to take into consideration such acts of the said Congress laying duties on imports, as maybe passed in amend» ment of or substitution for the acts aforesaid ; and also all oth. er laws and acts of the government of the United States, which shall he passed or done for the purpose of more effectually exe* cuting and erf arcing the same.” Congress did repeal the laws then in force for imposing duties, and passed another law in substitution therefor. An act of Congress was also passed entitledan act further to provide for the collection of duties on imports.” To consider of this act; to determine on its character, and to provide the means of redress against it, were within the express objects for which the convention was assembled. It accordingly passed an Ordinance to “ nullify” the act in question, directing the legislature to take such measures as might be necessary to prevent its being enforced within the limits of the State. Now certainly every means which was in good faith calculated and intended to prevent the operation of that act, was within the limits of the powers of the convention, and it would ill become this Court to examine with inordinate and suspicious scrutiny the means which that body thought proper to employ. I have examined the act with much attention, and without entering now into its details it is enough to say that in all its provisions it is evidently founded on the implied denial of the sovereignty of the States. It was plainly intended to defeat the effect of an act of this State, done in its sovereign capacity, and to render its citizens and constituted authorities responsible for their acts done under the authority of the sovereign act of the state. Certainly it was both appropriate and necessary to the arresting of the operation of that act, that the officers of the State itself should acknowledge the sovereignty of the State. If officers in the exercise of their functions denied that sovereignty and the authority of its sovereign act, they might feel bound to carry into effect the very law which the State had attempted to annul.— It was to counteract this, that the Legislature was authorized to require an oath of allegiance, which is of itself a recognition of sovereignty. This had a plain and direct reference to the object which the convention was authorized to effect. The only doubt arises from this, that the authority given to the legislature is not made commensurate with, the act the operation of which was intended to be arrested — that is to say, that although the act (known as the force Bill) should be repealed, yet according to the terms of the Ordinance, this power would continue to exist in the Legislature, indefinitely, as part of the constitution. If the force Bill should be repealed, would there not he an end of the authority of the Legislature, and of the Ordinance intended to nullify it ? And ought not every provision of the Ordinance to be so construed as to have reference to its avowed and authorized object ? On this point I do not think it important to give an opinion.

But independently of the authority of the Ordinance, I see nothing in the act of the legislature inconsistent with the constitution of the State. The constitution prescribes 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, &c.” I am. disposed to concur with the venerable Judge who heard the case of M’Cready and Hunt below, that the oath prescribed by the Constitution was not intended to apply to military officers. Undoubtedly if there were nothing else in the clause to raise a doubt, I should hold clearly that military officers come within the description of an “ office of profit or trust.” But a part of the oath is, that the officer swear that he is “ duly qualified according to the constitution of this state” to exercise the office. Now the constitution prescribes no qualification for military officers, and the words would be perfectly nugatory if applied to them. It would seem that as the legislature must of necessity prescribe the qualification, they should also prescribe the evidence which, the officer should give of his possessing it. The words I have referred to certainly raise an ambiguity, and an exposition nearly cotemporaneous was given by the act of the Legislature passed in 1794, by which an oath substantially differing from that of the constitution is prescribed to military officers. That oath alone has been taken from that time to the present, a period of thirty years. Legislative exposition is entitled t® some z'espect, and if universal and long continued practice be sufficient to settle the meaning of a doutful law, it would seem to have fixed the construction of the constitution in this instance. But independently of this, I am cleai; of the authority of the legislature.

The legislature possesses all legislative power, unless it be restricted by the constitution, and if the constitution had prescribed no oath of office, doubtless the legislature might enact one. There is certainly nothing in the plain terms of the constitution which I have quoted, to restrict the legislature from adding any other oath of office which they may think expedient or necessary. It is argued, as was said by Judge Nott in Cohen v. Hoff, 2 Const. Rep. Tread. that affirmative words often imply a negative. Undoubtedly they do, from the very nature of the provision and subject matter. They plainly did so in that instance. The question was of the authority of an act of the legislature authorizing the Governor to appoint a Judge for the time being, in case of the sickness of a Judge on Circuit. The constitution provides that the Judges of the superior Courts shall be elected by joint ballot of both branches of the legislature, and hold their offices during good behavior. Now if the Judges (all the Judges of superior courts) are to be elected in this way and to hold by this tenure, it is plainly impossible that they should be elected in any other way of hold b.y any other tenure. The first article of the constitution provides that every free white man, of the age of twenty one years, having a certain qualification of property, shall be entitled to vote for members of either Branch of the legislature. Here the negative is necessarily implied, that such as have not those qualifications, shall not be allowed to votebe-cause otherwise the whole provision would be nugatory and unmeaning. So, by common consent it has been understood that when the constitution declares that no person shall be elected a member of either branch of the legislature unless he possess certain qualifications of age and property, no greater or other qualification could be required. But when the constitution says that the legislature shall meet annually or on the fourth Monday in November, has it ever been understood that they were restricted from meeting at any other time they may appoint 1 Is there any incongruity in requiring the oath prescribed by the constitution, and any other oath which the legislature may think expedient ? and are we to give a negative meaning to the words without any reason or necessity ? If the words of the constitution, however, were more doubtful than they are, I should hold myself concluded by the uniform exposition of them which has been given in practice ; not only in this State, but in many other States of the Union, and under the Government of the United States. A great number of instances of this sort have been pointed out in argument, especially by the Attorney General. It is not necessary to refer to these in detail. It is enough to say, that ever since this State has had a constitution, other oaths than that prescribed by the constitution have been required of public officers ; some of them required by laws existing previously to the adoption of the present constitution, and one of which was taken by myself previously to entering on the office of Chancellor. In 1794, four years after the adoption of the constitution, an oath substantially differing from that of the constitution, was prescribed to officers of the militia. In 1816, a special oath was prescribed to justices of peace, Sheriffs and Constables. The same thing has been done familiarly in other States whose constitutions prescribe oaths of office. So it has been under the government of the United States, and in McCullough v. Maryland, (4 Wheat. 416) the Chief Justice regarded the authority of Congress in this respect as-too clear for argument. And it will not do to say, as was done in argument, that the constitution of the United States prescribes no form of oath, and that Congress may therefore direct the form, retaining the substance. Many — I think all of the oaths prescribed by the acts of Congress, are different from that of the constitution in their whole substance and effect.

The strongest argument I have seen on this part of the subject is that contained in Mr. Leigh’s case. (Hen. and Munf.) It is to this effect; that if the legislature possesses this power, it may disfranchise individuals or classes at its pleasure. In times of party excitement, religious or political tests may be imposed, by oaths intended, not to secure fitness for the office or fidelity in the discharge of its duties, but for the purpose of prescription merely. I do not think our constitution liable to this reproach, but that it has guarded sufficiently against the evil. If the legislature, by an Act, should declare that a particular individual by name should be disabled to hold any office of profit or trust, would this be constitutional ? Clearly not ; I should think it a violation of that part of the constitution which declares that “no freeman of this State shall be taken or imprisoned, or disseised of his freehold, liberties or .privileges, but by the judgment of his peers or the law of the land.” Such an act would not come within the proper limits of legislative power; it would not be the lam of the land, but a sentence, inflicting a penalty. For my views inoré at large on this subject, I refer to my opinion in the case of Berney v. the Tax Collector of St. Philips and St. Michaels, decided by this Court in Charleston. It could make no difference that Ihe act included a number of individuals, or that the individuals were described as a class; provided it clearly appeared that the true object and purpose of the act was the disfranchisement of individuals, without reference to fitness for the office or fidelity in the discharge of its duties. But if the Legislature should pass a law that no one who had been convicted of an infamous offence should be capable of holding a military office, or that every officer before receiving his commission should swear that he had not been convicted of such an offence, would this be proscription and disfranchisement t I regret that the oath in question was called, in argument, a test oath, as a term of odium, as I think it derogated lrom the respect with which an act of the Legislature ought to be regarded in'a Court of Justice. It was explained to be that which requires opinion merely, religious or political, as a qualification for office. If there were an opinion that must necessarily affect a man’s faithful discharge of his duties in office, it Would be no hardship .tlmt he should be excluded from office on account of his opinions. But according to my conception of the oath, it has no reference to opinion, but to conduct, and the faithful discharge of the duties of office.

To what does the tie of allegiance bind ? And to what does the officer or citizen swear who takes the oath of allegiance ? I think this has been sufficiently indicated in the course of this opinion. Allegiance means obedience — the first and highest obedience. In common discourse, perhaps, there has been some vague notion of a feeling or sentiment connected with this term ; but we are not to suppose that the Legislature in. tended to enact a sentiment. He who swears allegiance to, the State, swears that he will obey every act of the sovereign authority of the State, and also all laws and constituted autho. rities made and acting in pursuance of the sovereign authority.

There is a distinction to be taken between a private person and a public officer. A private person who swears allegiance,, swears to obey the laws; yet it is not every breach of law, that constitutes a breach of allegiance. A man who fails to perform his contract, or who commits an assault and battery, has never been thought to violate Iris allegiance. What then constitutes the violation ? Only the commission of those acts which under our institutions would amount to treason. To levy war within the State against its sovereign authority, for a general purpose, or to adhere to its enemies and give them aid and comfort. This is the only definition whiph, with us, it is possible to give to a breach of allegiance. No doubt an individual who should conspire — or in the words of the English Statute of Edw. 3, “compass or imagine” the overthrow of the sovereignty of the State, -would be guilty of a moral breach of his allegiance. But this could not come under the cognizance of law, till it were manifested by an overt act. And it may be observed that the Statute of Edward, in defining treason, enacts only the common law, though it restricts the num. her of offences which before were supposed to amount to treason. In the feudal understanding of the term, allegiance was held to bind to the feudal duties, and especially to military ser», vice. But as I have observed, the feudal sense has long been departed from. A man who should neglect to pay his taxes, or the militia man, who on being summoned into service, should fail to obey, would never be said to be guilty of a violation of his allegiance. He is bound to submit to the laws without resisting them by armed force. In my understanding, then, a private person who should take an oath to be faithful and bear true al-tegianee to the State of South Carolina, in the words of that proposed as an amendment to the Constitution,so long as he shall continue a citizen thereof,” would swear to no more than this — that he will not commit treason against the State, while he continues domiciliated within its Territory. The obedi. enee of a public officer must amount to something more than this. He is not only to submit to the law, but is entrusted to execute and enforce it. An oath of allegiance, or paramount obedience, theD, binds him to execute and enforce every act of the sovereign authority of the State. But here again, it is not every omission of neglect -or infirmity that would amount to a violation of allegiance. A militia officer who should simply evade his duty, would not be said to have violated his allegiance ; but if he should, in his official capacity, obey any authority in opposition to that of the State, as having a higher title to his obedience, this would be a violation. So, if any civil officer should refuse to execute an act of the people of the State, on the ground that he was forbidden by superior authority, this would be a plain violation of his oath of paramount obedience. This would certainly apply to the instance which was put in argument, of an officer who should refuse to execute an act of secession or nullification, and should continue to enforce the federal laws which he was forbidden to enforce, on the ground of superior duty to the Constitution of the United States. And no doubt, this, and nothing else, was intended by the Legislature.

And is this requisition on the part of the State severe or unreasonable? If the principles which I have endeavored to explain be just; if the State be well founded in her claim to sovereignty, it is plainly no more than she has a right to exact of her officers, and what every other sovereign State does exact. But it is said that on this subject opinions are divided, and that it is unreasonable, and a disfranchisement, to exclude from office those whose opinions differ from the prevailing opinion of the State, Even supposing the claim to be unfounded, however, yet let it be recollected that the State — that majority of the people which, acting according to the'forms of the constitution, has a right to exercise the authority and speak the voice of the State — believes and has declared itself to be sovereign, and that its highest and dearest interests require that sovereignty to be sustained. Is it wonderful that it should re'quire somo security that its own officers, whom it entrusts with its authority, should not uso that very authority to defeat its claim, and if there be any of its citizens whose opinions would lead them to disclaim and surrender that sovereignty, these should be excluded from office?

But as í have already said, the oath has nothing to do with. opinions, but with conduct. But can one who docs not believe in the perfect sovereignty of the State as it has been explained, consciensiously take the oath 1 I answer that he may certainly do so without any violation of his oath, provided his conduct afterwards shall be in conformity to it. It is a perfectly well settled principle of public law, that an oath imposed as a qualification for office, if there be no further exposition of the law-giver’s intention, is taken to refer to the execution of the duties of the office, and binds no longer than the party continues in office. No publicist has ever supposed that a person enlisting in a foreign military service, and taking an oath of allegiance, was bound by that oath longer than until he left or was discharged from the service, or that he was guilty of any immorality in taking the oath. This has been habitually done even by the subjects of those States in which allegiance has been held to be perpetual and inalienable. Let me here remark, this was urged as an instance of divided allegiance. But this is not so ; while he continues in the foreign service his allegiance is perfect and complete ; he is bound to obey the authority under which he has enlisted, in preference to any other authority on earth. Only, if a war should take place between that power and his own country, he must leave the service or commit a violation of his natural allegiance. So men enter into the civil service of foreign States and swear allegiance.

So it is universally agreed that a man residing in a foreign country owes allegiance to it so long as he continues to reside there. If he should be required to swear allegiance, without further explanation the oath would of course be understood to refer to his continuance in the country, and would be discharged by his returning to his own country; and this is not an instance of divided allegiance. While ho remains there, he must obey the sovereign in whose dominions he is, in preference to any other authority, even that of his own country.

It is on a principle somewhat similar, that by the English law, treason cannot be committed by an act done in obedience to a King de facto. If a man should swear allegiance to such an one, even although he thought him an usurper, he would be guilty of no violation of his oath, if he continued to obey him in good faith, and did nothing to bring about his overthrow ; though he might regard himself as guilty of a breach of duty in tying up his own hands from aiding the restoration of the rightful authority. But the restoration of the rightful King, without his agency, would discharge him of his oath. Here would be no divided allegiance.

The citizen of a State, entering into the military or naval service of the United States and.taking the oath of allegiance prescribed by the acts of Congress, even although believing his State to be sovereign and entitled to command his obedience in the last resort, would certainly be guilty of no violation of his oath, while he acted in conformity to it; nor do I know that he would be guilty of any violation of morality or propriety. He would swear to obey the authorities of the United States in preference to any other authority, even that of his own State, so long as he should continue in that service. The consequence would be, that if his service should be at anytime commanded in opposition to the sovereign authority of his own State, he must either leave the service, or betray his duty to his State, or violate his oath. And probably this binds to nothing ,to which an honorable' and conscientious man would not regard himself as bound without the oath. Certainly it could not be considered defensible that he should use the force intrusted to him by the authorities of the United States in resisting those authorities, even though at the command of his own State.

And thus according to my understanding of it, the citizen who accepts office under the State and swears allegiance to her, swears that while he continues to hold that office, he will obey, execute, and enforce every act of the sovereign authority of the State. A citizen who believes the United States a single consolidated nation entitled to exclusive allegiance, will commit no violation of his oath while he continues thus to obey and execute. Until an act of the people of the State shall come in conflict with what he conceives to be the higher authority of the Constitution and laws of the United States— or to use the terms in common use, until an act of nullification or secession shall be passed — there will be no conflict of duties. Until there shall be such conflict, he cannot doubt but that he is bound to obey and execute the acts of the people in convention ; and until then, his very allegiance will bind him to obey and give effect to the Constitution of the United -States, and the laws made in pursuance' of it. He may perhaps pass 'his life in office, before such a conflict shall occur-; but when it does occur, undoubtedly he will be under the necessity either of violating his duty to the United States, or of violating his oath, or of resigning his office.

And is this a hard or unreasonable condition which the State has imposed on her citizens ? Claiming to be sovereign, and determined to assert that sovereignty, could she have done less 1 Would it not be merest imbecility to entrust any portion of her authority to those who might make use of that ver ry authority to surrender her claim and defeat her most solemn act ? Might not an officer justly consider himself bound to this course, even if no oath were imposed ? Receiving trust or emolument of the State, shall he use the authority confided to him to defeat the purposes for which it was entrusted, even although he may believe her mistaken in her belief and pretensions as to her own condition and character? Believing herself to be sovereign, she must act consistently with that belief. When the powers of the earth are in contest, I may favor with my wishes him whose cause 1 believe to be the right, and if there be nothing to forbid, may enlist myself in his service; but I should justly be accounted no less than infamous, were 1 to enter the service of one, and accept office at his hands, that I might, even although I thought him a rebel and a pretender, use the trust and authority thus confided, more effectually to defeat and destroy him.

I am of opinion that tho motion in the case first stated, should be granted, and that in tho latter dismissed.

WILLIAM HARPER.  