Jdrrv 
 
 Duke University Libraries 
 
 Speech in the C 
 Conf Pam 12mo #377 
 
SPEECH 
 
 
 OF 
 
 HON. WILLIAM A. GRAHAM, 
 
 0»F ORANGE, 
 
 In the Convention of North- Carolina^ Deo. 7ihy 1861, on th- 
 Ordinance concerning Test Oaths and Sedition. 
 
 KALEIGH : 
 
 W. W. HOLDEN, PEINTES 
 1862. 
 

SPEECH 
 
 Mr. President: — When the original ordinance pertaining^ 
 to this subject came up for consideration several days since, I 
 took occasion to express my decided aversion to test oaths, as 
 antiquated instruments of oppression and despotism, nnsuited 
 to an enlightened age, and wholly at war with all our ideas of 
 free republican government. I was then of opinion that an 
 indelinite postponement was the proper disposition to make of 
 the entire topic. At the suggestion of others, it was referred 
 to a committee, of which, under your appointment, I had the 
 honor to be a member. When that committee assembled, 
 and the honorable Chairman, Mr. Biggs, produced and read 
 from an old act of 1777, as contained' in Iredeirs Revisal, the 
 two first sections of the ordinance reported by him, without 
 ranch reflection I gave that part of the ordinance my concur- 
 rence, and consented that it might be reported to the Conven- 
 tion. But, in committee, as in this House, everywhere and 
 under all circumstances, I have been unalterably opposed to 
 a test oath, and especially to that most objectionable form of 
 such an oath contained in the report of the committee, and 
 proposed to be enacted into a law of the State. And upon a 
 little more consideration, I am satisfied that no enactment by 
 this Convention is required in regard to sedition ; I therefore, 
 now submit the motion, that in fhe outset I deemed appropri- 
 ate, that the further consideration of the subject be indefi- 
 nitely postponed. I esteem it proper in this connection further 
 to state, that the eloquent, argumentative report of the Chair- 
 man of the committee, so full of flery zeal and patriotism, 
 was never heard of by me, until it was read by the Chairman 
 at your desk. If it was ever read to the committee, it was on 
 some occasion other than the two meetings I was summoned 
 to attend, and I received no intimation 'that "such a paper 
 might be expected. This I mention, not in the way of com- 
 plaint, but to acquit myself of any neglect of duty in failing 
 to present a counter-report against a document, which, with 
 all respect I must say, inculcates doctrines most intolei-ant and 
 tyrannical. 
 
 ^ Mr. President, the original proposition was liable to objec- 
 tions enough. I endeavored to point ont these in the former 
 discussion. It allowed a single magistrate upon complaint 
 
made, to bring before himself any citizen accused of disloy- 
 alty, and then to determine, in the first place, what constituted 
 disloyalty — second, whether the person charged was guilty — 
 and thirdly, to impose on him a sentence to take an oath of 
 allegiance to the State, or be expelled from the conntrv. 
 Revolting to our conceptions" of justice and freedom as x^as 
 this concentration of power in the hands of a magistrate, it 
 yet retained something of the manly spirit of the common 
 law, and of the elementary principles of liberty embodied in 
 our bill of rights. There was to be a responsible prosecutor — 
 persons arraigned and accused were to be allowed the custo- 
 mary privilege of defence, with the right of course, to confront 
 the accusers and witnesses, and, above all, to be protected 
 against being compelled to irive evidence against themselves. 
 But the substitute of the committee proposes what? Why, 
 to institute a proceeding in the nature of a criminal prosecu- 
 tion against every tree citizen; yea, sir, against every male 
 inhabitant of the State, from tlve beardless youth of sixteen 
 years, live years in advance of his admission to the rights of 
 a citizen, to tlii aged patriarch of one bundred and sixteen, 
 tottering on his staff, with one foot in the grave, by which 
 they are each and all to be attainted of treason, and banished 
 from their homes and country; or, if graciously permitted to 
 remain, to be deprived of their rights as freemen, and reduced 
 to a degraded caste — unless and until they shall purge them- 
 selves oi' this foul crime, by taking the oath of allegiance, 
 military fealty, and abjuration, compounded and prescribed in 
 the ordinance before us. This is the obvious effect of the 
 provisions relating to a test oath, w^hen analyzed and brought 
 to a plain interpretatrion. Your magistrates are to be sent out 
 into all the land, from the shores of the ocean to the summits 
 of the Smoky Mountains, and they are to beset every man 
 and bo}^ above the prescribed age, with a test oath in the left 
 hand, and a sentence of banishment or degradation in the 
 right. In this dilemma, ihere is to be no means of escape, 
 nor any more freedom of action than when the highwayman 
 with his pistol at your breast, offers the alternatives, ''your 
 money or your life." Observe, s-ir, there is to be no inquiry 
 as to guilt, as upon accusation and arraignment, but the party 
 is to be placed by law in a state of condemnation — his guilt 
 is to be assumed, until he shall exonerate himself by taking 
 the oath ; and upon his refusal so to do, his guilt being put 
 beyond question, the penalty annexed is — what ? Not a dis- 
 qualificarion for holding office — not a forfeiture of a part or 
 the whole of his goods and lands, but a forfeiture of his birth- 
 right as a citizen of North-Carolina. 
 
Mr. President, if this Convention, like a French national 
 Assembly, were to declare itself in permanent session, and 
 arrogate all the powers of government, it wonld give no 
 greater shock to public sentiment, and make no moredanger- 
 ous stride towards despotism, than wonld be effected by the 
 passage of this ordinance. It is true, there have been confided 
 to us extensive powers, but they are delegated powers, and 
 must be exercised not whimsically or tyrannically, but in con- 
 formity with those elementary principles of freedom and justice, 
 on which are founded our American system of Constitutional 
 government. If these are violated, it is usurpation on our part, 
 an abuse of power equal to usurpation, and for want of o 1 cr 
 remedy, it may expect to provoke that old and primary one 
 of resistance on the part of the people. AVhen elected to these 
 seats in the month of May last, we were not understood to be 
 placed above, or out of the reach of the well known respon- 
 sibilities of the representative to the constituent body. Our 
 countrymen supposed that they retained the right to judge of 
 and canvass our whole proceedings as freely as they were 
 accustomed to do as to those of other representatives ; and 
 that if dissatisiied with what we had done, a sufficient majority, 
 by some process or other, might set it aside, and afford redress. 
 They further supposed, that, although we had power to dis- 
 franchise men, and change the qualifications for the right of 
 suffrage, yet that no new test of citizenship would be applied 
 to those born upon the soil, of parents who had achieved the 
 independence of the country, and established the free institu- 
 tions, whose essential features no one desires to change. What, 
 then, will be their surprise, not to say indignation, if this 
 ordinance shall pass, and they are told that no man can ever 
 vote again — nay, that no man will be allowed to remain in 
 the State, but every one will be exiled who does not take an 
 oath that the Convention has ordained? Sir, every North 
 Carolinian rejoices in the idea, that, like St. Paul, he was 
 free-born. And, although this freedom was purchased at a 
 great price, no less than the blood of his fathers shed in every 
 battle-Held of American independence, from the shores of 
 the Hudson to the everglades of Florida, it came to him as an 
 inheritance, the more valued, because of its association with* 
 his ancestral pride and glory. H is right to dwell in and breathe 
 the puie air of the land of his birth; his right to participate 
 in the election of rulers, and, if it suit his inclination and the 
 will of a majority, to be himself invested with a portion of 
 the powers of the republic, he will suffer neither to be taken 
 away nor trifled with. He did not acquire them by an oath, 
 and he will spurn any oath offered to him as a condition of 
 
6 
 
 their continued enjoyment. It is one of those bhmderg char- 
 acterized by Talleyrand as worse than a crime, for statesmen by 
 their measures to encroach npon and offend so sacred a feeling 
 as the pride of nativity — tlie self-respect and manhood of a 
 high-spirited, free-born American. Sir, the people when 
 presented with this oath, will turn upon this .Convention, and 
 inquire " upon what food have these our C^sars," at "Raleigh, 
 *' fed, that 1 hey have grown so great ?" We thought they were 
 our servants ; how have they become our masters ? We had 
 a. free election according to- the usages and Constitution of 
 our fathers when we chose them as onr representatives ; by 
 what legerdemain, by what audacity, do they declare that we 
 shall never vote again, no nor inhabit our present homes, but 
 shall be driven out as fngitires and vagabonds, unless we take 
 an oath that they have dictated ? It will be no answer to tell 
 them, as they are told in substance in the report of the com- 
 Miittee, and the speech of the Chairman, Mr. Biggs, in support 
 of the ordinance, that the oath is but an evidence of patriot- 
 ism, and no one but a traitor need have any hesitation in taking 
 it. The prompt response would be, We care but little for the 
 thing proposed to be sworn to ; the objection is to being com- 
 pelled to swear at all, as a condition to the enjoyment of onr 
 inborn rights of property and citizenship. We render to the 
 government our loyalty and duty, as we cherish and support 
 our wives and children, and perform other obligations as 
 members of society ; but we will take no oaths upon compul- 
 sion, to bind us to those duties, and least of all, an oath that 
 is accompanied with the polite alternatives of exile or degra- 
 dation. Nor will they be any better satisfied with that other 
 idea contained in the report, and which seems to be the favorite 
 explanation of the ordina'ice, that it is a mere measure of 
 detective police, not intended to do any harm to patriotic men, 
 but to discover and expel disloyal ones. This assumes that itr 
 is legitimate and proper to hunt through the consciences of 
 all good men by an oath of discovery, in order to ferret out 
 the'bad. By parity of reasoning, if a treasonable correspond- 
 ence were suspected in any county or neighborhood, every 
 man should be required to open his desk, and submit his 
 private correspondence and papers to the inspection of a 
 magistrate. This certainly would be no more harsh than to 
 ask a discovery of his conscience. Or to illustrate it more 
 strikingly, it is in principle, the same as in case a theft had 
 been committed, in order to be sure of visiting punishment 
 on the real offender, you should require every inhabitant of 
 the vicinage to receive forty stripes save one. Your people 
 will say to you, point out the guilty or suspected persons, take 
 
tlie warrant of the law in your hands, summon us of the posse 
 oomitatus if necessary, and we are ready to render our duty 
 anywhere ; but our homes- and consciences are not to be made 
 hunting grounds for traitors and felons, and if we could submit 
 to make them such, we should not feel ourselves much elevated 
 above either. 
 
 But, Sir, the jealous and sagacious spirit of liberty which 
 pervades our people, will discover in this process of a test oath 
 something more than an usurpation or abuse of power on our 
 part, and an instrument of tyranny, oppression and degrada- 
 tion upon the citizen. They will perceive at a glance, that no 
 more effectual contrivance could be devised to enable a faction 
 in the possession of temporary power, to convert the govern- 
 ment into an oligarchy, expel their opponents from the State, 
 and riot upon the substance they had left. Such a faction need 
 only to enact a test oath, for patriotic objects of course, but 
 to i{lke care to infuse into it such ingi-edients as they knew 
 would be offensive and inadmissable by its opponents, and 
 declare that every man who refused it, should be banished 
 from the State, or lose liis rights as a citizen with forfeiture of 
 all his possessions. Carry it out with the high hand of force, 
 and it makes no difference whether a majority* or minority, 
 whether one in fifty will take the oath ; the few who do will 
 have tlie whole government in their hands, and the spoils of 
 the exiles -besides. Our theory has been, that a majority 
 within the limitations of our written Constitutions, can mould 
 the government at will — can make revolutions and unmake 
 them ; but this is an invention by which that tl^eory is sub- 
 verted, and those who have power may keep it till the end of 
 time. Whenever they are about to lose favor with the con- 
 stituent body, they have but to prescribe a new oj^th, and that 
 no man shall vote who refuses it, and they will never fail in 
 an election. Since the commencement of the present revo- 
 lution and the adoption of the new Constitution of tlie Con- 
 federate States, there has been much speculation as to the 
 facility with which it may be abrogated by any State, who 
 may become dissatisfied with its operation or administi-ation. 
 If there be that virtue in test oatlis which this ordinance 
 supposes, it may be perpetuated indefinitely. If there be a 
 majority favorable to it in the Legislature, aa there will be of 
 course in the outset, whenever they suspect opposition or 
 lukewarraness, they may enact an oath to suit the case, and 
 banish those who refuse it belore the next election. I speak 
 as if there were no constitutional impediments to snch a 
 course, as this ordinance considers that there are none, or 
 proposes to override them, if they exist 
 
Mr. President, the very mention of a test oath carries us 
 back to the "bigot monarciis and the butcher priests" of the 
 days of the Tiidors and Stuarts, and beyond these, to the 
 Inquisition itself. It is a device of power in Church and in 
 State, to perpetuate itself by force, against free discussion and 
 inquiry, and in defiance of what in more liberal times we call 
 public sentiment. In direct contravention of that most 
 esvsential principle of criminal justice, that no man shall be 
 compelled to give evidence against himself, it requires of its 
 victim the confession of a creed, and his failure or refusal it 
 takes as conclusive evidence of his guilt, and inflicts upon 
 him torturous penalties or forfeitures, such as, if they will not 
 cure him of his heresy, may deter others in like cases offend- 
 ing. Whether the creed be religious or political, or the remedy 
 be the thumbscrew, the iron boot, the break-wheel or the 
 rack, or whether it be banishment, deprivation of privileg-e, 
 degradation, or forfeiture of estate, there is no difierence in 
 the odiousness of the principle. Forsaking every vestige of 
 Christian charity and toleration, it assumes to control by force 
 that conscience, which the God who gave it designed to be 
 free, and avows its purpose to drive men to perjury or self- 
 accusation. I have somewhere seen or read of a picture of a 
 trembling prisoner of the Inquisition, who when called to take 
 the religious test of that inexorable tribunal, replies: *'I 
 cannot; I'll be damned, if I do." To which the stern Inquis- 
 itor replies : " You'll be damned, if you don't." It will require 
 no stretch of imagination to picture your justice, under this 
 ordinance, with his prisoner before him, refusing the oath, 
 with " I'll be perjured, forsworn, if I take it ;" and the equally 
 stern reply, " You'll be banished, if you don't take it." 
 
 The history of our mother country affords us some instruc- 
 tion on the subject of tests, and the persecutions that attended 
 them, religious and political. In the Catholic ascendehcy, 
 Protestants were the victims ; in the Protestant reigns, Cath- 
 olics suffered in turn ; and it is a reproach to that enlightened 
 and Christian nation, even that down within our own memories, 
 no man could hold even a military office until he took a test oath 
 against Catholicism, and received the sacraments according to 
 the rites of the Church of England. This last vestige of 
 intolerance and bigotry in that country was swept away under 
 the enlightened counsels of Earl Gray, the Duke of Welling- 
 ton and Sir Robert Peel, not more than thirty years ago. 
 
 But in the worst and most intolerant times, neither in Eng-,^ 
 land nor in any civilized nation of which I have recollection, , 
 was there ever such an experiment made as is proposed to be 
 made here, of prescribing a test, religious or political, and 
 
0! 
 9 
 
 running a muck with it against the whole people, to see if 
 perchance, some victim may not be found for banishment or 
 deffradarion. 
 
 In this country we have known but little of test oaths, 
 except as we have read of theih under more arbitrary gov- 
 ernments. The Legislature of Virginia, more than fifty years 
 ago, in a laudable desire to suppress the practice of duellings 
 directed an oath to be tak3n by certain public functionaries, 
 and among others the advocates in her courts of justice, that 
 they would not engage in any duel. Mr. Benjamin Watkins 
 Leigh, since known to the country as one of her most distin- 
 guished lawyers and statesmen, was then at the bar, and the 
 court of appeals having decided that the oath must be taken, 
 Mr. Leigh requested time to consider the question of the 
 power ot the Legislature to impose such an oath. And at a 
 subsequent day he submitted an argument which satisfied the 
 court that the power did not exist, and they unhesitatingly 
 reversed the former decision, which Chief Justice Roane 
 pronounced to be an "off hand and erroneous" one; an 
 example of candor and fairness of mind which I beg to com- 
 mend to all who may have inclined in favor of this ordinance. 
 In his argument, Mr. Leigh so vividly depicts the mischievous 
 nature of test oaths as the "barbed and poisoned weapons" 
 of despotic power, that I will detain the Con vention by reading 
 a few sentences from it : 
 
 " If the words of the Constitution," said he, " were doubt- 
 ful, its spirit could not be mistaken. If the Legislature might 
 add one new disqualification, 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 uncontrollaldle as the winds; and dissipated at 
 once all our fond notions of a written constitution, late the 
 glory of American politics. These 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 human 
 bosoms and actions; man was universally liable to be trans- 
 ported 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 that ice 
 
10 
 
 were exempt from the common lot ; and although the wise 
 exposition of the bill of riglits, bj the act to establish reh'gious 
 freedoQi, might for a time secure ns from a -'eUglous test, a 
 'political one was certainly a possible, perhaps a pi-obable, and 
 not SQvj remote event. Sir, I am possessed with a strange 
 delusion if th(^ mry law in ^w6<9^^c»?^ does not appoint a political 
 test, ] fear other instances might be recounted. Such are 
 the BEGINNINGS. The end of all these things is death." 
 
 Sir, this oi'dinance goes be3^ond the apprehensions of Mr. 
 Leigli, and does apply a religious test to a considerable portion 
 of our population, as a condition of their being allowed to 
 remain citizens. It would be a very great mistake to suppose, 
 that the oath which it prescribes, was an oath " to support the 
 Constitution of the Confederate States," the only oath to that 
 government. required by its Constitution ; or that it was the 
 common oath of allegiance to the State of North-Carolina, or 
 both of these together. Let us read it: 
 
 '^ I, A. B., do solemnly swear, (or affirm, as the case may 
 be,) that I will bear faithful and true allegiance to the State 
 of I^orth Carolina, and will to the utmost of my power, sup- 
 port, maintain and defend the independent government of 
 the Confederate StateB of America, against the goYerument 
 of the United States, or of any other po^wer, that by open force 
 or otherwise, shall attempt to subvert the same. I do hereby 
 renounce my allegiance to the government of the United 
 States, and will support and defend the Constitution of the 
 Confederate States of America, and the Constitution of this 
 State, not inconsistent with the Constitution of the Confeder- 
 ate States — so help me God." 
 
 Now, Sir,, the requirement of this afiirmation to be taken 
 by the denomination called Quakers, is as effectual an act of 
 banishment of tkat sect, as if it had been plainly denounced 
 in the ordinance. And the same may be said, I presume, in 
 relation to Menonists and Bankers, though I have less knowh 
 edge of them. There were some of the last named class in 
 the county of Lincoln during my boyhood ; whether they 
 remain, and keep up their peculiar tenets, I am not informed. 
 But the Quakei's are a well known sect, numbering not less 
 than ten thousaud persons in the State — and it is equally well 
 known that they Vv'ill not engage in war, and are conscien- 
 tiously scrupulous against bearing arms. Our laws, from the 
 Revolution downward to this day, have respected their scru- 
 ples, and extended to them the charity and toleration due to 
 the sincerity and humility of their profession. This ordinance 
 wholly disregards their peculiar belief, and converts every 
 man of them into a warrior or an exile. True, they ar« 
 
n 
 
 allowed to affirm, but the affirmation is equivalent to the oath 
 of the feudal vassal to his lord, to " defend him with life and 
 limb and terrene honor." It is, that they " will to tl\e utmost 
 of their powe7\ support, maintain and «fe/^??cf the independent 
 government of the Confederate States of America, against 
 the United States, or any other power, that by open force or 
 otherwiso may attempt to subvert the same," &c. If this does 
 not include military defence, it is difficult to find language 
 that would. It is so well known that the ordinary oath to tne 
 State im.pliea defence with arms, that the Quaker^ have ever 
 refused to atiirm in its terms, but have had a special affirma- 
 tion provided for them, as may be seen in the present Kevised 
 Code, and in all former editions of our laws. This ordinance, 
 therefore, is nothing less than a decree of banishment to 
 them. Sir, this humble denomination, who in the meekness 
 and charity which so distinguished their Divine Master, yield 
 precedence to none, were the first white men who made per- 
 manent settlements within our bordei's. Scourged and buffeted 
 by Puritanism in New England, and Prelacy in Virginia, they 
 found no rest or religions freedom, unt'l they had put the 
 great Dismal Swamp between themselves and the nearest of 
 their persecutors. In the dark forests of its Southern border, 
 they obtained a toleration from the savage red man which had 
 been denied them by their Anglo-American brethren. Thei-e 
 they opened the w ildern ess, reared their modest dwelHngs, 
 and filled the land with the monuments of civilization. There, 
 and upon the upper waters of the Cape Fear, which they 
 subsequently colonized, their posterity has remained- to this 
 day — a quiet, moral, industrious, thrifty people, dififeringfrom 
 US in opinion on the subject of slavery, but attempting no 
 subversion of the institution — producing abundantly by their 
 labor, paying punctually and certainly their dues to the gov- 
 ernment, and supporting their own poor. Sir, upon the 
 expulsion from among us of such a people, the civilized world 
 would cry, shame ! 
 
 But, it may be said that this was not intended. If so, it 
 but demonstrates that it is dangerous for freemen to take liold 
 of the weapons of despotism and brandish them about, lest 
 they do mischief more than was designed. But there is cer- 
 tainly no exception of Quakers in the ordinance, thougli they 
 are excepted and specially provided for in the act of Assembly, 
 1777, from which its main features are copied, — none in those 
 amendments which the Chairman signified his intention to 
 move ; and the report of the committee declares '' there can 
 be no neutrals in the struggle" in which we are engaged. 
 
 It may not be a religions test to others, but, Sir, it is a dls- 
 
12 
 
 tnrbance of, and interference with the religious sjentiraent and 
 domestic repose of the country, not to be justified, unless 
 called for by some most urgent necessity. The veteran of 
 the Courthouse, who sees every breach of the peace and 
 misdemeanor, and calculates on proving his attendance as a 
 part of his income, may regard oaths as unmeaning ceremo- 
 nies; but your quiet and retired citizen, who, except when 
 called to the public duty of a juror, or to prove his neighbor's 
 ^ill, has seldom been sworn at all, looks upon them in the 
 language of your publip statute, as " being most solemn 
 appeals to Almighty God, as the omniscient witness of truth 
 and the just and omnipotent avenger of falsehood," and takes 
 them not without a feeling of awe. Beyond his daily prayer — 
 
 *' That He who stills the raven's clamorous nest, 
 
 And decks the lilly fair, in flowery pride, 
 Would in the way His wisdom sees the best. 
 
 For him, and for his little ones provide;" 
 
 Beyond this, his morning and evening imploration, repeated 
 perhaps with unwonted fervor and empliasis, in these times of 
 difficulty and scarcity, he takes not his Maker's name. He is 
 accustomed to vex liis ear with no blasphemous, unnecessary,, 
 unhallowed appeals. When you invade the retirement of 
 8uch a man by domiciliary visitation, and demand from him 
 his oath, with a threat of banishment branished over his head, 
 he will feel as would the pagan whose household Gods had 
 been rudely jostled from their seats. He, as well as you, Mr, 
 President, has read those thrilling words in which Chatham 
 has engraven on our memories the domestic rights of our 
 fathers beyond the seas, that " qy'qyj Englishman's house is 
 his castle, though so rude and humble that the rains and the 
 winds of heaven may beat upon, and may enter it, yet the 
 king cannot enter it." He will reflect that until now his house 
 has been equally sacred from the intrusion of government, 
 and his conscience unruffled by impertinent interrogation ; 
 and he will instinctively inquire, if these are the first fruits 
 of the new order of things, what may not be expected in the 
 sequel ? And in spite of all the apologies and disclaimers that 
 your magistrates may be instructed to make, he can sensibly 
 arrive at no other conclusion, than that he was suspected of 
 disloyalty, and that the visit was designed to drive him to 
 perjury, or exile ; or else that it was a senseless proceeding,, 
 which ought to bring the government that made it into 
 contempt. 
 
 But, Mr. President, the enormity of the proposition remains 
 yet to be told. It violates every safeguard of personal free- 
 dom embodied in our bill of rights, moet of which have been 
 
Hz 
 
 consecrated in the history of Engh'sh liberty from the time of 
 Magna Cbarta Itself. The Northern government became a 
 despotism by usurpation. Pass this ordinance upon the old 
 plea of tyrants, the necessity of the times, and the Sonthern 
 one, wUliin the borders of IS'orth-Carohna, will liave become 
 a despotism by legislation. Whereas, our people are resolved 
 to be independent and free, not only in the end but in the 
 MEANS. They are resolved, not only to be freemen at the 
 termination of the contest, but will not surrender their liberties 
 during its progress. Kor will ihey be satisfied with the flimsy 
 pretexts and excuses for the sacrilice of a sacred principle, 
 that it can do no harm except to traitors. They intend that 
 even traitors shall not be condemned except in accordance^ 
 with those great principles of right and justice, which are of 
 , universal application. For they know full well that it is upon 
 the persons of friendless or odious men that despotism, whether 
 of a single tyrant or of a mob, first lays its hands ; and that 
 vigilance is more necessary to the preservation of liberty in 
 times of public peril and revolution, than in peace. Now, 
 Sir, you can hardly mention a guarantee of individual right 
 contained in that immortal declaration prefixed to the consti- 
 tution, which is not outraged by the proposed proceeding in 
 relation to a test oath. Let me particularize a few of the more 
 prominent among them : 
 
 1. Contrary to the very words of that declaration, it "dis- 
 seizes every freeman " and every boy too above the age of 
 sixteen, of his privileges as a citizen, and converts him into 
 an alien, and exiles him until he shall re-establish his right to 
 citizenship by taking the oath of allegiance, defense, and of 
 abjuration of the government of the United States, already 
 recited ; a high-handed outrage in subversion of " the law of 
 the land," the only process by which so dreadful a sentence 
 could be inflicted — and it is well known that " by law of the 
 land" here, is meant a regular trial before Judge and jury, 
 according to the course and usage of the common law. 
 
 2. It convicts a freeman of a crime, the high crime of dis- 
 loyalty to the government, by an act of attainder passed by 
 this Convention, and subjects him to the punishment of being 
 banished, unless he shall acquit himself by an oath — the 
 declaration guaranteeing that no such conviction shall be had 
 " but by the unanimous verdict of a jury of good and lawful 
 men in open court, as heretofore used." 
 
 3. Without any evidence of an off'ense having been com- 
 mitted, and without any offense being described in a warrant 
 and supported by evidence, it considers a free citizen as cou-. 
 demned, and exiles him from his sacred home, unless he will 
 
14 
 
 disclose the secrets of his heart, and they are found to be 
 patriotic, by a Justice of the Peace. 
 
 4. In a highly criminal proceeding, it compels a man to 
 give evidence against himself. This hideous feature is a little 
 disguised, but it is unquestionably there. If he wili swear 
 the oath he goes fr^ee, but if he will not, his refusal is plenary 
 evidence of his guilt, and he suffers the dread penalty. This 
 refusal he is forced to give if his conscience will not allow 
 him to take the oath. Wherein does tliis differ from that old 
 device of bigotry and cruelty of putting him on the wheel 
 and cracking his bones until he shall declare that he is not 
 guilty of heresy or treason i In nothing that I can perceive, 
 except that in the one case he suffers in the flesh, and in the 
 other it is expulsion from wife and children, and friends, and 
 country. 
 
 Mr. President, when my friend, Charles S. Morehead, of 
 Kentucky, as noble and gallant a gentleman as any that 1 
 have ever known, was seized on his native soil and hurried off 
 to a prison in a far distant State, upon an alleged order fiom 
 the Secretary of State at Washington, I thought, not that 
 " ten thousand swords would have leaped from their scab- 
 bards," but that the Mississippi valley would have risen as one 
 man, and cried " to the rescue," American constitutional 
 freedom had been struck down in the person of one of the 
 noblest of her sons; and I supposed that without regard to 
 past differences of opinion as to whether the Union should be 
 maintained, all men would have been satisfied by that act of 
 tyranny, that the fvQQ Constitution of our fathers was extinct; 
 that arbitrary power reigned in its stead ; and that safety was 
 only to be found in the overthrow of that power. But that 
 proceeding, violent and revolting as it w^as, may be favorably 
 distinguished from this. Morehead w^as not required to give 
 evidence against himself The government which arrested 
 him, professed to have had sufficient proof of his guilt, and 
 did not call upon him under penalty of exile, forfeiture or 
 torture, to furnish any evidence either positive or negative to 
 effect the case. Sir, I think it now appears that the oath in 
 question requires some emendation. The citizen ought to be 
 excused from swearing to support the Constitution of North 
 Carolina, as heretofore existing, since the whole proceeding 
 violates so many of its fundamental principles, as in fact, to 
 abrogate it. He might wnth more propriety be called on to 
 take an oath of abjuration, declaring that he had no faith in 
 the bill of rights, as a means of securing freedom, and 
 renouncing his adherence to it, at least, in all cases where 
 disloyalty was imputed. That would be far more appropriate 
 
15 
 
 than that other oath of abjuration, "renouncing 'hereby' 
 all allegiance to the United States ;" implying in the clearest 
 manner that until the oath is taken, allegiance is still due to 
 the United States— a folly that will excite a laugh wherever 
 it is not taken as an insult. The citizen will say, I protest that 
 I thought all this was settled in May last, by the Convention. 
 I have not considered myself as owing any allegiance to the 
 United States, since that time, and I have none that I can 
 *4iereby " renounce. With nearly as much reason might 
 he be required to renounce all allegiance to Victoria Regina, 
 successor of the Georges second and third, of whom our 
 fath(irs were born subjects, and to abjure the heresy of tran- 
 substantiation, the invocation of saints, and Popery in general, 
 as the Englishmen who took office were required to do prior 
 to Catholic emancipation. And the power being established, 
 as it is assumed by this ordinance, it would be the easiest thing 
 in the world to superadd a mild adjuration, to abide by the 
 creed as established by the Convention, Synod, Conference or 
 Association, as one or another denomination might happen to 
 predominate with the ruling powers. 
 
 And h'ere let me correct a very important error of fact 
 which appears in the committee's report. It is there stated 
 that our volunteers who have entered tiie military service have 
 taken an oath, and it is argued, that therefore all other citizens 
 should enter into the like solemn obligation. The conclusion 
 would not follow, if the oath were the same. Soldiers received 
 into the service and pay of the State or nation, like public 
 servants in civil office, have always been required to take an 
 oath of allegiance, but citizens in general never w^ere. In 
 fact, however, no volunteer has taken the absurd oath here 
 proposed to be thrust upon the citizen. They have not been 
 required to abjure allegiance "to the government of the 
 United States." They are bound to take an oath of allegiance 
 to the State. And under an act of Assembly in May last^, the 
 Governor prescribed an oath, by which they undertook " to 
 obey his orders, and the orders of the officers set over them." 
 But by ordinance of this Convention they were relieved from 
 an oath of this nature, which no man could be expected to 
 keep without some infringement, and which had been disused 
 in the army of th,e United States, prior to the Mexican war, 
 and since; and they were sinaply made liable to the penalties 
 of the articles of war, for disobedience of orders, from the 
 time of signing the agreement of enlistment. No volunteer 
 of Korth-Carolina, therefore, can be lawfully required to take 
 any oath, but tlie oath of allegiance to the State, anterior to 
 his being mustered into the service of the Confederate States. 
 
1? 
 
 That, let us remember, is a government with Legislativev 
 Execntive, and Judicial functionaries, in full operation, and 
 can prescribe and administer such oaths, as to it may seem 
 meet, to soldiers; and if it wishes to try so hazardous an 
 experiment, to citizens also. Our interference, then, to bind 
 the consciences of our citizens to that government, after 
 having granted it power of life and death over their conducty 
 is quite a vrork of supererogation, if not of servility. In its 
 Constitution, Art. 6, sec. 4, it has plainly enumerated the 
 persons in the State and Confederacy, whom it requires to take 
 the oath to support it. If it desires to enlarge the catalogue, 
 by polling every citizen, to search his heart, and see if it can- 
 not find somebody to punish as a traitor, let it try the ^•irtue 
 of an act ot Congress, and the machinery of its own officers. 
 That would give the regulation generality, and relieve it of 
 .one of its features of hate fulness, that of being leveled at the 
 people of a particular State, and this by tfie officiousness of 
 the State authority in a matter committed by the people to 
 other hands. For, I suppose, no one imagines that there is 
 any danger of rebellion against the State government as such. 
 The whole solicitude which prompts this most extraordinary 
 measure, springs from an apprehension of iniidelity on the 
 part of the people, or a portion of them, to the Confederate 
 government — and it implies that that government is too weak 
 or its functionaries too timid to provide and apply the needful 
 remedies. We, therefore, must rush in to the help of the 
 nation. If Congress were consulted, I doubt not they would 
 render thanks for the good and patriotic intention, but if they 
 spoke candidl}^ would declare that they considered the remedy 
 ten times as bad as the disease. ISTo, Sir — the Congress would 
 as soon think of repealing the Constitution, and dissolving 
 into a state of chaos, as to undertake this process of the polling 
 and purgation of the whole people. Nor has any other State 
 proposed or conceived it. They know, that if serious disat- 
 fection does not exist, (as everyone knows it does not in North 
 Carolina,) this is a way in which the government may readily 
 be brought into contempt and collision with the people; and 
 that if it did, this is not the mode in which to deal with it. Lord 
 Macauley relates of James II, that he never learned how to 
 treat an insurrection, which conmion sense teaches should be,^ 
 by taking hold of the ring-leaders and making examples of 
 them, — but on the happening of such an occurrence, he seized, 
 tried and executed the unhappy insurgents, of all ages and 
 sexes; and while his servile and tyrannical chiet, justice, 
 Jeffries, went tlie circuits pervertmg the law for the condem- 
 nation of all accused, the moody monarch diverted himself 
 
n 
 
 among liis parasites and courtiers bj speaking of them as 
 Jeffries' campaigns. Sir, the progress of yaur justices under 
 this ordinance, abjuring men and boys, witliout regard to the 
 aged, the decrepid, the halt, maimed or- blind, under terror of 
 ^^xile or degradation 1mm the proud'privileges of citizenship, 
 will be looked upon by those who have the instincts, not to say 
 knowlo !ge of freemen, as no less of campaigns; and with no 
 view to favor the public enemy, but to assert their self-respect 
 and dignity, they will strive to liurl from power the authority 
 binder which they are made. What, Sir, is such a proceeding 
 but the establishment of martial law throughout the length 
 and breadth of the State, by which the peaceful citizen U 
 invaded in his home and his conscience, and placed upon the 
 footing of the inhabitant of a besieged city or fortress, or ot 
 a conquered rebellious province? A Eoman pro-consul, a 
 I'ritish colonial Governor, or a successful General in the armies? 
 of Abraham Lincoln, with an overwhelming force and but 
 feeble resistance, may adopt measures of such dictatorial 
 :-8verity and rigor. \Vc are informed that Governor Tryon, 
 after overpowering the Eegulators at Alamance, marched a 
 military force into many of the upper counties of the then 
 province, and exacted from the inhabitants an oath of allec^i 
 ance to the King at the point of the bayonet. Gen. Dix, also, 
 upon his recent conquest of the two counties on the eastern 
 shore of Virginia, condescended to advertise their helpless 
 citizens, that if they would take the oath of allegiance to the 
 United States, they should receive every protection, and their 
 property should not be confiscated. This was a sufficient hint 
 what consequences would follow if they did not. But, who 
 before ever heard of a government professing to be free, under- 
 taking to drive from its borders or disfranchise its whole pop- 
 ulation, if they would not, man by man, submit to the ordeal 
 of a compulsory test oath? , ISi ay, what arbitrary despotism, in 
 its domestic rale, ever embarked in any such enterprize of 
 Quixotic absurdity ? "Was it attempted in France under the 
 lirstiS'apoleon, or under the third ? Even in the wildest excesses 
 of her revolutionary phrenzy, there seems to have beeji suffi- 
 cient common sense left to the ruling authorities to enable them 
 to recollect, that ''human law is a rule of civil rondw-^^^ not 
 oi faith ^ and that only bigotry and fanaticism will attempt to 
 regulate conscience and opinion in government or in religion. 
 Charles Y., Emperor of Germany and Spain, after waging for 
 years the most bloody and relentless wars, to put down" Luther 
 and the Reformation, becoming sated wnth carnage, and dis- 
 gusted with the pageantry of monarchy, yielded up the reins 
 to his son, and retired to a monastery. There, he amused his 
 
18 
 
 leisure in scientific studies, and in experiments upon instru- 
 ments for measuring time. But by no diligence or skill was 
 lie ever able to<-n[iake two clocks run alike. Tliis, says ins 
 biographer, Dr. Robertson, saddened his soul with rcuiorseful 
 3'efiections upon his pi-exious lite, in which he had causc(i I'ivers 
 of blood to flow, in vain and wicked efibrts to coiripel men to 
 think alike. This simple anecdote, whicli is but an illustration 
 of all human experieuce, proves the futility and impossibility 
 of conrroiling thought and opinio]] ; and that those govern- 
 ments only are wise that leave the mind and conscience free, 
 and are content with conformity to their behests, in action. 
 Of the one hundred and twenty thousand voters in tlie State, 
 how many in tlie eighty-Uve years of its independence have 
 taken an oath to the State, or to tlie United Stares, during our 
 connection with that governnient ? Those who iiave tilled 
 office, and exercised a portion of the sovereign power as 
 magistrates or constables, or in the higher stations, have been 
 obliged, and properly too, to swear lidelity to the State and 
 general goverement ; but as to tlie great mass of the people, 
 if tliey have not literally kept the Scriptural injunction to 
 *' swear n(»t a-t all," it has not been by reason of any oath, of 
 fealty imposed by public autliority. And the inquiry vvill 
 naturally be made, where is the necessity for this novel and 
 most extraordinary procceduig? The Legislature has been 
 twice convened in extra session since the breaking out of the 
 present war, and has considered and adopted such measures as 
 they deemed necessary to the public safety or defence. But 
 no member of either House, in anxious contemplation of the 
 ■crisis, seems to have thought of a test oath, forced upon all 
 the people, under terror of exile or loss of privilege, as among 
 these measures. Caesar Augustus sent out a decree rliat all 
 the woi'ld should be taxed. Ihe North Carolina Convention 
 is asked to send out a decree that all the world shall be sworn. 
 There is virtue in taxation. Money is tlie sinews of war — but 
 what nation was ever defended by oaths, — oaths imposed on 
 its own i^eople without distinction, especially when the alter- 
 native was banishment or degradation ? 
 
 Mr. President, to say of this measure that it is absurd and cal- 
 culated to bring ridicule on our legislation, and that it is un- 
 necessary, and will be wholly ineii'ectual, if necessary, inas- 
 inuch as a forced oath is w^ell understood to be no oath in the 
 sight of man or his Maker, is but to characterize its more ob- 
 vum? features. I am fully pursuaded that abroad, if not at 
 home, it will be regarded as the offspring of fear. It will be 
 s\rgued, and the hypothesis cannot be resisted, that a proceed- 
 ing so universal, so unusual, so searching, so destructive of 
 
19 
 
 personal freedom and danorerong to public liberty, would not 
 be resorted to except in a State where public sentiment was 
 suppressed by the high hand of force, and a sense ol danger 
 had driven the government to desperation. In that aspect no 
 measure could give greater encouragement to the enemy, and 
 no libel could more deeply wound the sensibilities of the peo- 
 ple of tli'^ State, or do tliem more gross injustice. They have 
 Icoked upon the pending contest as a foreign war, of nation 
 against nat^'on, waged upon the frontiers by national armies. 
 But you propose b}- tin's ordinance, to declare it a civil and' 
 Bocial war, in which no man is to be trusted — in which the se- 
 cretsof the right hand may be concealed from the left, until 
 you have cleansed out the conscience and made assurance 
 doubly sure by a forced oath. It is not enough that 35,000 
 men, portions of them from every county in the State, are in 
 the field, exposing their lives to the arms of the enemy, and 
 to the pestilence of camp and garrison, and that almost evavy 
 family has its representative there ; that they have submitted 
 cheerfully to the burdens of taxation, and the privation inci- 
 dent to a destruction of commerce,, and have over and above 
 this, voluntarily and cheerfully contributed of their labor, 
 their substance and the very comforts of their homes, to irive 
 aid to your soldiers and vigor to their efforts; that there is 
 not a cloud of dislo\alty to be seen in all the horizon as bicy 
 as a man's hand ; but that the wliole people, it may be with 
 trifling exceptions, are pressing forward with a noble unanim- 
 ity to the establishment of our national independence. All 
 this will not suffice. Every man must be purged as by fire. 
 And all for what? The report of the committee informs us. 
 It is " is rid the country of traitors at heart," who are suppo- 
 sed to be few in number, and will be discovered when tested 
 by this oath. Such doctrine, Mr. Paesident, is the very big- 
 otry of despotism. Who constituted us the searchers of 
 hearts? What government ever undertook to deal with any 
 thing as crimes, except the overt acts of its people, but the 
 most unmitigated tj^rann^es? There are doubtless republicans 
 in principle residing under every monarchy in Europe, and 
 there may be monarchists in the States of America, but so 
 loiig as they demean themselves as peaceable citizens, do not 
 levy war against the State or the Confederate States, nor ad- 
 here to our enemies giving them aid and comfort, they pas3 
 without molestation, and are under the protection of the Con- 
 stitution and laws. If there be, as the committee presnmes, 
 traitors among us, they are not of my acquaintance, nor, so 
 far as I am aware, of my section. But wherever they aiT«, 
 treason is an offense well known to, and defined hj law^ and 
 
20 
 
 like other crimes, is to be dealt with according to law. And 
 it is quite remarkable, that while the- committee in^veigh with 
 Tehemence ^ga'nst tlie despotism now practiced bj the Lin- 
 coln government in Maryland, they should bring forward a 
 measure equally ahorrent to freedom in N"orth-Carolina. Sir, 
 if sucli a measure prevails' and is acquiesced in, it is of little 
 laoment what may be the iasuo of the present great conflict 
 in the battle-field. Wc shall iu the cndbein any event slaves-, 
 luid present the sad spectacle of a State throv;ing away its 
 liberties in a struggle to preserve them, in angry imitatio^] of 
 the contagious example of an eneray who threw away theirs,, 
 to g-lve vigor to their efforts for our subjugation. l" protest 
 against it, as a gross abuse, amounting in efieet to- a usurpa- 
 tion ot power — as a dangerous device by which a faction may 
 at any time pervert the government and transmute it into an 
 oligarchy. I protest against it in the name religions freedom 
 and domestic quiet — in the name of that civil liberty which 
 is our birthright, and lias been the inheritance of our ances- 
 tors for eight hundred years. I protest against it as a weak and 
 futile weapon of defence, calculated only to encourage the 
 enemy, weaken ourselves* and to bring our legislation intc 
 ridicule and disrespect at home and abroad, and degrade our 
 citizens in their own esteem — as an officious intermeddling 
 with the province of the Congress of the Confederate States 
 — aa a libel upon the people we represent, whose noble alac- 
 rity, patience, perseverance, self-denial and bravery in this 
 contest deserve all praise. Whereas, the statute book, in the 
 present times, and much more in the future, in all historical 
 interpretation must be construed to imply an imputation of 
 wide-spread disaffection. I protest against it,, finally, as an 
 ir.iitation of IS'orthern despotism, outstripping^ its model — nO' 
 ether State of the South having conceived such an idea, though 
 in several of them disaffection not only is rife,, but treason 
 stalks abroad in arms. 
 
 But the committee plants itself on a precedent in an act of 
 the General Assembly of 1777, and says all the material parts 
 of this ordinance are copied from tljat act. Precedents in the 
 pleadings of the law are said to be dangerous things, if one 
 does not know how to fill up the blanks; and statutory pre- 
 cedents are equally fallible and deceptive as guides to politi- 
 cal actian-, if we shut our ejes to the circumstances and sur- 
 roundings of historical facts which distinguish former times 
 from our own. Let me inquire of the committee, whose 
 chairman holds a high judicial station, whether this ordinance 
 does not contravene the Bill of Rights and Constitution in the 
 particulars I have enumerated, and if it does, whether a simi- 
 
Jar act, passed in 1777, by the General Assembly, did not 
 equally contravene it — and wlien an act of the General As- . 
 seiribly docs come in conlliet with the Constitution, which is - 
 ^o give way ? He is obliged to answer, the act of Asscinl'ly, ^ 
 /f:cource. Bat it was not so uTid^scood in 1777- The opiii- 
 :on seems to have prevailed then, iind for years afterwards, 
 that the General Assembly was as oittniporent as the Briris'i 
 Parliament, and Avhen, in 1786, the courts of justice decided . 
 an act of the Legislature to he unconstitutional, it produced a 
 great sliock in the minds of higliiy intelligent men. .This act 
 oit. 1777, which undertook to banish fraeinen wtio were inhab- . 
 itants of the State at the adoption of the Constitution, or to 
 deprive them of tlie right of snilVage if they refused to take 
 an oath of allegiance, was clearly unconstitutional, not only 
 in the points already specified, but in assuming to take away • 
 the right of suffrage in the face of the provision of the Con- 
 stitution declaring that all freemen 21 years of age^ who have * 
 b^en inhabitants a cejtain time, and paid public taxe^ •-^^>''' 
 8-xercise it. ButJ waiving the constitutional questi; 
 situation of onrancestors in 177(j-'7. differed essentially iroui 
 3urs at; thifj time, in many particulaifi to their disadvantage; 
 and in the poverty of their resources, and newness of their- 
 oxperimenfc, it should not surprise us that tliey laid hold of a ' 
 test oath as a weapon with which bigotry and arbitrary power 
 liad sought to fortify themselves in Europe, hoping they could • 
 render it useful in the defence of fVeedoin liere. They may ' 
 possibly have tho^ight that as allegiance under a monarcli is - 
 .lue to the person of the sovereign, it might still linger in the 
 breasts of some, and that this violent remedy should be resorted 
 to-for its expulsion.* But before we are called on to follow 
 this as a precedent, it should be shown from subsequent history ' 
 that it was of some avail in the contest. -It was provided in 
 the act that the name of every person taking it should be sub- 
 T^cribed in a book, to be deposited in the office of the Clerk of 
 the County Court. Who has ever seen such a book? Xlie 
 lionorable gentleman from Mecklenburg, Mr. Osborne, who 
 
 *' Xot::. — On looking into 4th Blackstone's Com. p. 1:.., 
 that the whole of this statute of 1777, in rt-latiou ton te?t oaiii uirJ ■jir;i-.L- 
 ment, or disfranchisement as a citizen, is 11 teraUy copied from the statute of ' 
 ".leorge 1st against Popish recusants^ So that the ordinance of the com- ' 
 iiiittec is but a copy of an act of 171-5. a]>|)lying a religious test to Papists 
 —except that in the former case,t\vo Justices of the Peace .were invested ^ 
 with power ''to tender the oath 'to any persoa whom they shall suspect to 
 b4 disaffected," and in our '■-.-• .^I'-r-.- n..,.^,w, -^ (,•,.,-.,] .,. :i- .nc- •.-.,! • -,-■ 
 tetldcred the oath accordin-' 
 short of 2^ jjrcarnunire. 
 
22 
 
 has just taken liis seat, has made considerable reseairches in 
 the pubh'c papers of his county, which is one of historical 
 renown ; lias he (^vev fonnd such a book? Have you, Sir, or 
 any other gentleman here ? One of two conclusions is certain. 
 Either that there was no general attempt to exact such an oath, 
 which is the more probable ; or, that if exacted, it had not 
 the lefist effect. For when the Britisli invaded the State in 
 1 rS0-'81, the Tories rose in those sections where they were 
 known to be in the outset of the war, and in no other. The 
 act was, therefore, as characterized by the gentleman from 
 Richmond, Mr. Leake, hruhim fuhnen^ producing no effica- 
 cious result. With the men of 1776-'?, there was a total 
 change of government, and of the administratjon of govern- 
 ment. With them " old things had passed away, and all things 
 liad become new." There was no general government on 
 which to rely for general defence and welfare. The States 
 were united only by certain articles of association. And in 
 .North-Carolina a State government just formed, with no laws 
 or officers to administer them, except what they enacted and 
 appointed in the pressure of the emergency, was their sole 
 reliance in general and domestic concerns. They had to pro- 
 vide for treason, sedition, and everj^ crime in the calendar^ 
 and it is in a statute concerning treason that the committee 
 has found the model of this ordinance. Now, Sir, if so much 
 weight is due to a precedent, why not re-enact the whole stat- 
 ute, that part which relates to treason as well as misprison of 
 treason and test oaihs? That is the only part of the statute 
 that we have heard of being put into execution. The Tory 
 Colonel, Bryan, was tried for treason, and convicted, I presume, 
 under this statute. But he had a trial by due course of law. 
 He was not called on to iurnish evidence against himself by a 
 test oath, and he was defended by Davie, who had slaughtered 
 a large part of his regiment in battle, but who, after the exam- 
 ple of John Adams in defending the British soldiers who fired 
 on the multitude in the streets of Boston, was equally firm in 
 asserting all his rights of defence, as a criminal. But who 
 ever heard of a trial for misprision of treason or sedition, or 
 the general enforcement of a test oath upon any hut suspected 
 persons ? The Revolution of the 2()th of May last, was under 
 wholly different circumstances. What our fathers did in 
 weakness we have done in strength. In the State govern- 
 ment, with the same Constitution, the same laws, the same 
 officers in all its departments and ramifications, there has been 
 wo change that would cause a ripplu on the surface of the 
 waters. The ship of State has sailed on in her great career of 
 justice,' without reefing a sail or changing a spar. In national 
 
23 
 
 affairs the (iifFerence is still more remarkable. Instead of no 
 general government, and a dependence on the discordant 
 legislation of thirteen Srares, we tind a Constitution of national 
 government copied almost literally from the Constitution of 
 the United States, in fnll and vigorous operation, with a Pies- 
 ident, Congress and Judicial. v — defendmg our cause with 
 an ^ii'iny, in etlectiveness, if not in nninhers, such as the pnp- 
 ulous North never poured <>n the lihine or the Danube, or t!io 
 sunny plains of Italy — with treason defined in the Constitu- 
 tion for the security of tlte citizen as well as siitety to tho 
 government — with the possible power to ))ass sedition and te>t 
 laws for its defence, like as the tState governments, but like 
 those governments abstaining tVom the use of them, as the 
 cast-oli' paraphernalia of despotism. To think of bringing a 
 State test oath into play as a means of defence in such a pos- 
 ture of aifairs, upon a precedent of an unconstitutional act of 
 Assembly in 1777, is to my mind, as if one should propose, in 
 the midst of rifled cannon and all the advancement aiid 
 improvements in modern warfare, to return to the bow and 
 poisoned arrow of the savage, because the Aborigines had 
 used them in the earliest wars ot this continent. Let thexp 
 both be consigned where they belong, to the curious inve.sti- 
 gations of the antiquarian ; but let us hear no inore of them 
 in the enlightened legislation of a free people. 
 
 Mr. Pi'esident, tliei-e is one diversity in the two revolutions, 
 which, wlien brought to notice, must convince all that there is 
 the least analogy imaginable in the two cases ; and that is in the 
 persons called to fill office upon the change of government. 
 Our ancestors would as soon have thought of electing Lord 
 Korth to the office of Governor as of recalling G<»veinor 
 Martin or Governor Tryon, and of bringing over Lord Mans- 
 field with his high tory principles .o their chief jusriM'ship, as 
 to have appointed one of the late Kings' Judges. Wherf^s, 
 our State officers, as we h-ave seen, have been nncliangeH in 
 a single particular ; and in appointments to ofiice undi^'jiio 
 Contederacy, it has been no objecti(m that the appointee held 
 a similar appointment with a regular commission and oath of 
 office, and received its emoluments from the Federal Treasniy 
 to the hist pay day, before the Pi-oclamation of tlit^ 1 8th (»f 
 April. Now Sir, in the Revolution of lT7t>, tin's wojild not 
 have been permitted. The tirst persrms on whom the ac of 
 1777, to which the committee i-efers in terms of such liigh 
 approbation, laid its hands and required to be sworn, were all 
 the late oljice s* of the King of Great Britain. They were put 
 before the " traders who had been making voyages to England 
 within ten years then last past." Thei-e are many copies of 
 
24 
 
 Iredell's Eevisal,, stowed away in the lionaes of the people of 
 
 the country; -and wheii they are informed that the preceder^ 
 
 for tills ordinance is to be found there, they will brus!, 
 
 from tli'^ old book and read it for tlK-msi^U-^^. And 
 
 iav : executed. so rii-'oronsly * -^'"^y \x\\. 
 
 toi-wi-,. /.hether jou beg-iii at the lu-i ^ ...:-■ .,' 
 
 all Vvdio lield oiiice \iiider the late j>t)\ 
 
 they ar "\ ' \ '" 
 
 to plac _ , \ 
 
 they, will- scoui uu.^it of \7'. 
 
 pnr<4;ed with tl oaili or Icav 
 
 Held t! 1 recei^-ed tlieir compensations v 
 
 oM g-o\^. .....^.... . lionkl take a dose that would nr/ 
 
 cannon, at least before tlu^^y are trnsted with olhc: 
 
 1 appreiien'' ' '"■■ . ' :; ^ V" -' ' ' ^ ' •- ■ -■ 
 
 many, tho" 
 
 Ya ' '' ^ 
 
 no 
 
 terxiuio t-wearii 
 
 na: 
 
 the oifences theroui enumei-ated, and whicli tlie coii-iL-ittee 
 calls sedition, were in- the act of 1777, cai" ' ' ' ' ■' 
 
 treason. It i^, thereibre, ]'e^•iv!n.a■ a^i r^^' ' 
 \inder a new and milder ' lerican 
 
 least, has m;ido some ])ro ,__. _ 3 crimes - ..!..;,, 
 
 M(irti<: treason, etc., since 1777. It 
 
 was a i;:- ..... j;v..;:o ^..M.^va i>^, iiuman ^-''^ •\-'' •■''-•-' v, that in 
 
 the Federal Constitution oC 17'^7,. ti. \ to <^x)r\'- 
 
 ^htonly in levying war a^^aiiist the limieu uiatcs, or in adher- 
 ing to their enemies, giving- tlten^i aid and conrfort ; a provision 
 that has been literally coi'ied in the ConstitutioM of the ( ' 
 federate States — and b-y an ordipiance of this body, ii:';, 
 of this State also. It is enough to make the Hi 
 now to review the his^' •^- -'f what were at dii..-.:.. . .....s 
 
 denominated and adju'' on in England, and to remem- 
 
 ber what hetaeombs of j.iimai; victims the fluctuating state of 
 ^he law, and its pliant and corrupt apministration, to favor the 
 views ot tlie reigning sovereign or of Ids niinious, carried to 
 th-e. scaffold and the gibbet. An extraordinary insfance of 
 treason hy words, was mentioned in oui* discussion of this 
 subject at the last session, wdiere a nian of note was put to 
 d«|ath for declaring in a anuuent of ii-ritaiion, on hearing of 
 the shouting by the King, of his favorite stag,' tliat "lie fished 
 tho horns of the stag were in the King's belly." As Plutarcli 
 
25 
 
 .-olntes of Dionysias, the tyi'ant, that he capitally eAeciUed a 
 subject for relating that he liad dreamed he killed the King, 
 saying it was proof tliat he thought of it while- awake. Sir, 
 i!ie fate of Sidney and Ilnsseil, and j^^liniidred other martyrs 
 ')f that very freedom, which loomed but in the English revo- 
 iution of 16S8, and assumed its fnll proportions in our Ameri- 
 can, Constitutions a centnry later, vrill msh nponour rnemorie^ 
 at the suggestion of this theme, and illustrate the wisdom of 
 the const it'iVtibn^l provision. While j^ sufficiently secures the 
 government from treacherous and parricidal hands, it protects 
 tfie citizen from that vortex of constructive and exploded 
 treasons, v/hicli has engnlphed in bloody and premature graves 
 30 many innocent men. " To prevent the possibility of those 
 calamities which result from the extension of treason to offences 
 of, minor importimre. (<i\ys> Chief .Justice Marshall,) that great 
 fundamental la\ defiries and limits" the various depart- 
 
 ments of our gOv . , ,i;i:c.it, has- given a rule on thesuhject both , 
 to the Legislature and the Coxirts of America, which neither ^ 
 can be permitted to nd.-' With this limitation upon 
 
 charges of treason, ;; jperienco of that rational freedom 
 
 ostablishe.d by the Cun.stituiion of tlie State, came more liberal 
 views in relation to. the inferior crimes of its cla-ss. Mis- 
 prision of treason has entirely disappeared fro?n the statute 
 book of the State. It. is found in that of the United States, 
 covering only a single offer! ce, according to its literal meaning, 
 that of concealing ai]d not disclosing and making known to 
 the public authorities^ the commission of any treason that may 
 come to the knowledge of the person charged. Sedition is 
 found in our Tievised Code, as the heading of a particular 
 offence, that of exciting -slaves to insurrection. In this con- 
 nection, it is a salutary part of our law according with public 
 sentiment, and can be executed with effect wherever an 
 offender may be found. Tliis was abundantly proved in the 
 case of Daniel Wortli, and of others. This law applies to 
 attempts to excite rebellion in a degraded caste in onr sociel^ , 
 wholl}^ devoid of all political power. 
 
 But among freemen, every one of whom is equal, in con- 
 sultation and at the ballot-box, if restraints upon the fredoiii 
 of speech and of the press may be imposedj beyond those 
 provided by the colnmon law, it has never beeri found neces- 
 sary to call them into operation heretofore. There seems to 
 have been a srenerai acquiescence in tlie doctiiucs of Jeffer- 
 son in his inaugural address. "If tliere be any among us who 
 would wish to dissolve this Union ''Oonfederacy] or to change 
 its' republican form, let them' stand undisturbed as monuments 
 of the safety with which error of opinion may be tolerated, 
 
26 
 
 wliero reason i.s left free to combat it." I have myself been 
 accustomed to associate statutes of sedition with tli'ose indict- 
 ments for seditious libel, where there were attempts to screen 
 corruption, imt)ecility, favoritism, and the insolence of office, 
 b}^ criminal prosecutions against persons who exposed them, 
 and when the gallantry of Erskine, Curran, and other advo- 
 cates at the Knglish and Irislr bar won immortal names in 
 wrestling with a domineering and sn-bservient bench, that 
 never forgot the hand that elevated it above the people, nor 
 its fav()!-ires, and prevailing in tiie contest. I have been 
 accustomed to look upon them as bringing into active employ- 
 ment, if not producing, a vile race of parasites and sycophants, 
 Titus OatesesJ, Bedloes, etc.^ thronging the gates of' office aiid 
 patronage, in the character of spies and injbrmers, ready to 
 discover Meal-tub plots and Rye-honse plots of the most direful 
 import, and to accuse any man, whom it miglit be desirable t"0 
 hunt dcTwn and destroy. You propose by Vhe lirst section of 
 this ordinance, to create nine indictable offences, every one 
 of which is described in a manner so loose and nndelined, as 
 to hold out the greatest temptations to malignant accusers, and 
 to produce neighboi-hood strifes without end. I shall not 
 detjiin the Convention by a recital of them. Their counter- 
 part maj be found in the misprisions against the King's person 
 and government, which Blackstone says may be '' by speaking 
 or writing against them, cursing or wishing him ill, giving out 
 scandalous stories concerning him, or doing anything that may 
 tend to lessen him in the esteem of his subjects; may weaken 
 his government, or may raise jealousies between him and his 
 people.'' Under this it has been at different times held 
 indictable, to say of the King that he had a cold, at a time 
 when his services were important in the Held — also, to say of 
 him falsely, that he labored under mental deiangement— or 
 to drink to the pious memory of a traitor, or for a clergyman 
 to absolve persons at the gallows who there persist ^!n the 
 treasons for which they die, iSzQ. 4. Black. Com. 123. Sir, the 
 whole doctrine is nnsuited to our free institutions. It is founded 
 on the supposition, that force, compulsion, is the only means 
 of upholding government, even to excite love for it — and that 
 public opinion is nothing, and must be subordinated by it. 
 We have sufficient law now to afford all the security needed, 
 if, as no one doubts, public sentiment is with i>s, and will enable 
 us to enforce it — and if it is nor, no new statutory enactment 
 will be enforced. Tlie common law of riot, rout, unlawful 
 assembly, and conspiracy enable you to take hold of any 
 parties whose guilt may be dangerous; and the doctrine of 
 seditious libel is the same now that it was in 1802 when Harry 
 
27 
 
 Crosswell was convicted of a libel on President Jefferson- 
 except that the, truth of the matter published is a defence. 
 Over and above this, every section of tlie State is accessible 
 on brief notice by Rr.il road, and the miliary power may be 
 exerted with effect on the iirst appearance of insurrection. 
 
 But, Sir, the whole scope of tliis ordinance is togivu proper 
 defence and protection to the Confederate States. There are 
 a few expletives t' rown in, in which the State is mentioned, 
 but they seem only designed to till out a sentence, and give 
 roundness to a period. Kow what busines is it of ours to pass 
 a law to punish sedition against the Confederate States any 
 more than to punish the robbery of its treasury or post-t.ffic , 
 or piracy again.^t its ships on the sea? If there is to be such 
 a crime as sedition against that govt rnment, ought it n(»t to 
 be a general crime, punishable in Virginia, Tennessee, Ken- 
 tucky and other States ? And has not that government a Con- 
 gress now in session for the third or fourth time? Is it sup- 
 posed that we are wiser than they, and are to usurp their 
 lunctions? If that Congress has the same propensity to copy- 
 that prevails here, they need only turn to the administrati'.n 
 of the elder Adams, and re-enact the sedition law of that 
 day, referred to by the gentleman from Richmond, (Mr. Leak.) 
 It is a very well drawn statute, much better than this oidi- 
 nance. I say this without disrespect to the committee, for 
 they only profess to copy from the act of 1777. The gentle- 
 man from Richmond made a slight error in supposing this waa 
 the same with the sedition law of 1798. It is intinitely worse. 
 Judge Chase had decided and correctly too, that there was no 
 law of the United States except what was enacted by statute, 
 and therefore that there was no law of libel to protect its 
 officers from the President downward against any defamation 
 whatever. The act was consequently passed to punish by 
 indictment libellous publications against them, which would 
 be indictable if made against other persons by the common 
 law— allowing, however,' the truth to be given in evi<lence as 
 a defence. Yet, so distasteful was it to the public mind, and 
 so odious did it render its authors, that after a lapse of half a 
 century, vhen all other party issues of that time are forgotten, 
 it still remains in public recollection. But as a restriction on 
 liberty, the liberty of the press and of speech, it was as 
 nothing compared with this act, which has been exhumed 
 from the oblivion in which it has lain for eighty-odd years, 
 and which it is proposed to revivify, just as it was on the day 
 of its first enactment. At that time the doctrine prevailed 
 here as well as in the mother country, of '• the greater I he 
 truth the greater the libel." So that if any man ''shall pub- 
 
28 
 
 -lisli and deliberately speak or write against our pwblic defence,'^ 
 (this is one of the ottences it creates) no matter how trite may 
 be tl]e words written or spoken, snch as that a commanding 
 (reneral iied in ■I'.^i'ionsly from a Held of battle, Mdu'ii \ici-(>rv 
 was vv'iihiii ' , or that from his incompetei] 
 
 ■iced half ],.-.•. ^^ :nnand \^ itkont any conceiviti'^e '-^^j^-ci, 
 althoni!;li it may be evavy vvord true, the party who wrote or 
 sppke thus, mntt ' Icied. 
 
 If the Congr: o Confederate States desires to ti'v 
 
 over again the experiment of a Sedition Law of 179S, or to 
 go' back beyond it, and re-copy old penal statutes made to put 
 ■down Papacy, or uphold the prerogatives of royalty, ihi.- way 
 is perfocily open to them. But lot us not render ourfielves ;i 
 subject of merriment, by taking better care of that govern- 
 ment tliau. it takes of itself. Let us not stigmatize our people 
 by ^singling them out as peculiar subjects for the operation of 
 laws of this kin(' us not give just cause of ofauico to 
 
 them, l)y.shov.'iii. . rust of that elevated patriotism nnd 
 linanipiUty with which tiiey ai-e sustaiLiug their country in 
 *''._■■ li: :■ h>inrrvr ^vl.V ^ .--■ n^' iibandon ihis m^:^-''^<'i' ''^ 'y-'^ '■><■]■ 
 iub, , -ive and unjust. 
 
 and ij:tv-_. u.. ''•■ ^:./^' '^^'^ . posh:-'/' 
 
^PPEIsTDIX:. 
 
 lilE ^OLLO^VI]^it is -niE OEDINA^-CE, PRF.6ENTL-D T.Y ^sU:. illHCS, 
 C.'F ^ir^RTIX, CHAIEMAX OF THE COiMMITTEE : 
 
 . ^- ATs^ OPvDINAXCE 
 
 To define and ^>?r?m/i. Scdiiion^ and^io i^vtvcnt the dartguc 
 which may arise from j>crf!07is disaJfccM to the State. 
 
 Be it ordained^ That if any person within this State sliall 
 attempt to convey intelli^nce to tlie enemies of tlie Confed- 
 erate States, or shall pubhsli and dc]ii)erately speak or write 
 ag-ainst our pfibh'c defence : or shall maliciously and advisedlv 
 endeavor to excite the people to resist the "^Government oi 
 Ihis State or of the Confederate States ; or persuade them t(* 
 return to a dependence on the Government of the United 
 States ; or sliall knowingly spread ialse and dispiriting news : 
 or malicious!}^ or advisedly terrify and discourage the people 
 from enlisting into the service of this State or of the Confedei- 
 ate States; or shall stir up or excite tumults, disorders, or 
 lasurrections ifi this State ; or dispose the people to favor the 
 enemy ; or oppose or endeavor to prevent the measures car- 
 rying on in support of the freedom and independence of the 
 said Confederate States; every such person being thereof 
 legally convicted by the evidence of two or more credible 
 witnesses, or other sufficient testimony, shall be adjudge'l 
 guilty of a high misdemeanor, and shall be fined and impris- 
 oned at the discretion of the conrt, and shall enter into recog- 
 nisance with good surety, in such sum as the. court may deem 
 proper, to be of the peace and good behavior towaid all 
 people in the State for three years thereafter. 
 
 2d. Any Judge or Justice of the Peace on complaint to him 
 made on the oath or affirmation of one or more credible per- 
 son or persons, shall cause to be brought before him any 
 otfender against the provisions of this ordinance, who shall 
 enter into recognisance with sufficient surety to be and appear 
 at the next county court of the county wherein the offence 
 was committed, and abide the judgment of said court ; and 
 in the meantime, to be of the peace and good behavior to all 
 
30 
 
 people within the State ; and for the want of such surety, the 
 said Judge or Justice shall commit such offender to the jail of 
 the county. 
 
 3d. It shall be the duty of eveiy free male person in this 
 State above sixteen years of age, (voluiiteers mustered into 
 the service of the State or of the Confederate States, persons 
 non compos mentis and prisoners of war only excepted,) before 
 some court or otiicer authorized to administer oaths, to take 
 the following oath or atfirmation : 
 
 *' I, A B, do solemnly swear (or athrm as the case may be) 
 that I will bear faithful and true allegiance to the State of 
 North- Carol in a, and will to the utmost-^of my power, support, 
 maintain and defen^l the independent government of the 
 Confederate States of America against the government of the 
 United States, or an}^ other powei% that hj open force or 
 otherwise shall attempt to subvert "the same. I do hereby 
 renounce all allegiance to the government of the United 
 States, and I will support and defend the Constitution of the 
 Confederate States of America and the Constitution of this 
 State not inconsistent with the Constitution of the Contederate 
 States, so help me God." 
 
 And it shall be the duty of every officer administrating 
 such oath to certify under his hand and seal to the next county 
 court which may be held in the county where the jurors or 
 atHrinants reside, the names of all persons, who have taken 
 the oath before him, which certificate shaR be recorded by 
 tlio clerk of the county court in a book to be kept for that 
 purpose. 
 
 4th. Every male person as aforesaid who shall fail or neglect 
 to take the said oath or affirmation on or before the first day 
 of Jaiiuary next, may, by any Justice of tlie Peace of his 
 county, be cited to appear before the county court to take the 
 same ; and if any person thus cited shall fail to attend, or 
 attending at the time and place, as he shall have been thus 
 warned, shall refuse to take the oath or atfirmation, (except 
 excused by sickness, unavoidable necessity, or other sufficient 
 reasons to* be adjudged of by the next county court,) shall bo 
 ordered by the said county court to take the said oath or quit 
 the State, and depart out of the Confederate States within 
 thirty days thereafter. P>omded ho'toever^ That the county 
 court may, in tlieir discretion, permit a person failing as afore- 
 said, to remain in the State. 
 
 5th. If snch person shall be permitted to remain in the 
 State, he shall be adjudged incapable and disabled in law to 
 have, occupy, or enjoy any office, appointment, license, or 
 election of trust or profit, civil or military, within this State, 
 
31 
 
 and shall not be capable of being elected to, or aiding bj^ his 
 vote to be a member of Assembly, Governor, or any other 
 officer; and if any person shall be directed to depart ont of 
 the Confederate States, and shall not quit the State within 
 thirty days, then such person may be apprehended by the 
 warrant of any Judge or Jnstice of the Peace in this State 
 (wlior^e dnty it shall be to issue such wa-rant) and shall be 
 brought before the county court, where the order was made, 
 and the saia conrt 
 
 I, in such case, send the person so 
 offending, as speedily as may be, out of the Confederato 
 Sfates, at ihe costs and 'charges of such offender (if he has the 
 means to payTlie same,) and to this end shall, and may direct 
 the Cleils: ot* tl^cnuri to ;>snc an order to any Sheriff' in the 
 State to seiz(* and^sftll^so much of the goods and chattels, 
 lands and tenements or" §u6hij)erson in his county as may bo 
 judged nvcessary by saidfc<Si^>t \n defray the costs and charges, 
 t<tgerher with the costs and charges of apprehending and 
 confining such persou untij lijashall^be sent ont of the Confed- 
 erate Stares; and such shwitf shall execute proper convoy- 
 ances for any pro})erty so sold, and return the money arising 
 by any sale tnade by virtue of Such §rder, afier deducting his 
 fees and commissions as in other cases, to the next county 
 court of rlie county whence such order issued, under the pen- 
 airy of five. hundred dollars, to be recovered, upon motion 
 against tii^* islierifl* andlii's sureties, by the county Solicitor 
 for the iise of the county, after ten da^s notice ; and if any 
 surplus shall remain after p^'ing all ©osts and cliarges as 
 aforesaid, the county court shall cause such surplus to be paid 
 to the owner. • 
 
 f)th. If any person st> departing or sent off from this State 
 sh:ill return to the same, then such person shall be adjudged 
 guilty of treason against th^'State, and shall, and may be, 
 proccjded against in like manner as directed in case of treason. 
 
 7th. This Ordinance in ay J) e" modified or j^epealed by the 
 General Assembly — shall take.efioct at the (htta of its ratifi- 
 cation, and be published by the Secretary of "State as soon as 
 practicable thereafter, in on e-^if- there be one) newspaper in 
 each Congressional District, and' at eacl^Court IJouse in the 
 several counties of the State. 
 

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