VC P 342.H 
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 SPEECH 
 Hon # William A. Graham 
 
THE LIBRARY OF THE 
 
 UNIVERSITY OF 
 
 NORTH CAROLINA 
 
 AT CHAPEL HILL 
 
 THE COLLECTION OF 
 NORTH CAROLINIANA 
 
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 SPEECH 
 
 OF 
 
 HON. WILLIAM A. GRAHAM. 
 
 OF ORANGE 
 
 Li the Convention of North- Carolina, Deo. lili, 1861, on the 
 Ordinance concerning Test Oaths and Sedition. 
 
 KALEIGH : 
 
 W- W . H OLDEN, TKINTEK 
 1862. 
 
Digitized by the Internet Archive 
 in 2013 
 
 http://archive.org/details/speechofhonwilliOOgrah 
 
SPEECH. 
 
 Mr. President : — When the original ordinance pertaining 
 to this subject came up for consideration several days since, I 
 took occasion to express rny decided aversion to test oaths, as 
 antiquated instruments of oppression and despotism, unsuited 
 to an enlightened age, and wholly at war with all our ideas of 
 free republican government. I was then of opinion that an 
 indefinite 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 Iredell's Revisal, the 
 two first sections of the ordinance reported by him, without 
 much 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 the 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 fiery- 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 intolerant and 
 tyrannical. 
 
 Mr. President, the original proposition was liable to objec- 
 tions enough. I endeavored to point out 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 country. 
 Revolting to our conceptions of justice and freedom as was 
 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 srive evidence against themselves. 
 Btit the substitute of the committee proposes what? Why, 
 to institute a proceeding in the nature of a criminal prosecu- 
 tion against every free citizen ; yea, sir, against every male 
 inhabitant of the State, from the beardless youth of sixteen 
 years, five years in advance of his admission to the rights of 
 a citizen, to the aged patriarch of one hundred 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 of 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, when analysed and brought 
 to a plain interpretation. 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} r 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, there 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, sir, 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- 
 qualification 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 would give no 
 greater shock to public sentiment, and make no more danger- 
 ous stride towards despotism, than would 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 principlesof freedom and justice, 
 on which are founded our American system of Constitutional 
 government. If these are violated, it is usurpation on our part, 
 t,n abuse of power equal to usurpation, and for want of o 1 er 
 remedy, it may expect to provoke that old and primary one 
 of resistance on the part of the people. When 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 dissatisfied 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-field of American independence, from the shores of 
 the iludson to the everglades of Florida, it came to hirn as an 
 inheritance, the more valued, because of its association with 
 his ancestral pride and glory. Bis right to dwell in and breathe 
 the pure 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 
 
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their continued enjoyment. It is one of those blunders char- 
 acterized by Talleyrand as worse than a crime, for statesmen by 
 their measures to encroach upon and offend so sacred a feeling 
 as the pride of nativity— the 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 Caesars," at Haleigh, 
 " fed, that they 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 our 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 fugitives 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- 
 mittee, 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 our 
 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. Kor will they be any better satisfied with that other 
 idea contained in the report, and which seems to be the favorite 
 explanation of the ordimvice, 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 if; 
 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 
 
xhe warrant of the law in your hands, summon us of tU<e p&sse 
 comitatus 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 take care to infuse into it such ingredients 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 his 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 mnjority or minority, 
 whether one in fifty will take the oath ; the few who do will 
 have the 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 theory 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 oath, and that 
 no man shall vo**f 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 the 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 administration. 
 If there be that virtue in test oaths which this ordinance 
 supposes, it may be perpetuated indefinitely. If there be a 
 majority favorable to it in the Legislature, as there will be of 
 course in the outset, whenever they suspect opposition or 
 lukewarmness, they may enact an oath to suit the case, and 
 banish those who refuse it before the next election. I speak 
 as if there were no constitutional impediments to such 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 monarchs and the batcher priests" of the 
 days of the Tudors and Stuarts, and beyond these, to the 
 Inquisition itself. It is a device of power in Church and in 
 Stale, 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 
 essential 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 privilege, 
 degradation, or forfeiture of estate, there is no difference 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 yon 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 ascendency, 
 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 
 
running a mack with it against the whole people, to see if 
 perchance, some victim may not be found for banishment or 
 degradation. 
 
 In this country we have known but little of test oaths, 
 except as we have read of them under more arbitrary gov- 
 ernments. The Legislature of Virginia, more than fifty years 
 ago, in a laudable desire to suppress the practice of duelling, 
 directed an oath to be taken 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 of 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 4' barbed and poisoned weapons" 
 of despotic power, that I will detain the Convention 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 uncontrollable 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 ewayed human 
 bosoms and actions; man was universally liabie 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 our&elves that we 
 
10 
 
 A'ere exempt from, the common lot; and although the wise 
 exposition of the bill '6"f rights, by the act to establish religious 
 freedom, might fc'r 'a time secure us from a ■teligious test, a 
 .political one was certainly a possible, perhaps a probable, and 
 irot very 'remote event. Sir, I am possessed with a strange 
 delusion if the Very law in question does not appoint a politick? 
 test. 1 fear other instances might be recounted. Such are 
 the'i?EGi>TiTiKG8. The end of all these things is death." 
 
 Sir, this ordinance goes beyond the apprehensions of Mr. 
 'Lei£»: , i, and does apply a religious test to a considerable portion 
 'of our population, as a condition of their being allowed to 
 '"emain 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 fauhful and true allegiance to the State 
 of North Carolina, and will to the utmost of my power, sup- 
 port, maintain and defend the independent government of 
 the Confederate States of America, against the government 
 of the United States, or of any other power, 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 affirmation to be taken 
 by the denomination called Quakers, is as effectual an act of 
 banishment of that sect, as if it had been plainly denounced 
 in the ordinance. And the same may be said, I presume, in 
 relation to Menonists and Dnnkers, though I have less knowl- 
 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 Quakers are a well known sect, numbering not less 
 than ten thousand persons in the State — and it is equally well 
 known that they will 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 are 
 
11 
 
 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 the utmost 
 of their power, support, maintain and defend the independent 
 government, of the Confederate States of America, against 
 the United States, or any other power, that by open force or 
 otfi&i wise 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 the 
 State implies defence with arms, that the Quaker-* have ever 
 refused to affirm in its terms, but have had a special affirma- 
 tion provided for them, as may be seen in the present Revised 
 Code, and in all former editions of our laws. This ordinance, 
 therefore, is nothing less than a decree of banishment to 
 them. Sir, thra humble denomination, who in the meekness 
 and charity which so distinguished their Divine Master, yield 
 precedence to none, we^e the first white men who made per- 
 manent settlements within our borders. Scourged and buffeted 
 by Puritanism in New England, and Prelacy in Virginia, they 
 found no rest or religious freedom, until 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. There 
 they opened the "w ilderness, reared their modest dwellings, 
 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, differing from 
 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 hold 
 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, though 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 religious test to others, but, Sir, it is a dis- 
 
re 
 
 tnrbanee of, and interference with the religious sentiment and 
 domestic repose of the country, not to be justified, unless 
 called for by some most urgent necessity. The veteran of 
 the Court-house, 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 
 will, has seldom been sworn at all, looks upon thera in the 
 language of your public statute, as " being most solemn 
 appeals to Almighty God, as the omniseient 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 filly fair, in flowery pride, 
 Would in the way Hi3 wisdom sees the best, 
 
 For him, and for his little ones provide;'" 
 
 Beyond thisj his morning and evening iraploration, repeated' 
 perhaps with unwonted fervor and emphasis, 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 
 such 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 u every 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 
 lias 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, most of which have been 
 
IS 
 
 ■consecrated in the history of English liberty from the time of 
 Magna Charta 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 Southern 
 one, within the borders of North-Carolina, will have 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. Nor will \hey be satisfied with the flimsy 
 pretexts and excuses for the sacrifice 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 laj's 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 
 eonld 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 h} 7 the unanimous verdict of a jury of good and lawful 
 men in open court, as heretofore used." 
 
 3. Without any evidence of an offense having been com- 
 mitted, and without any offense being described in a warrant 
 and supported by evidence, it considers a tree citizen as con- 
 demned, and exiles him from his sacred home, unless he will 
 
u 
 
 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 wiH swear 
 the oath he goes free, 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 this 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 from 
 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 free 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 was, may be favorably 
 distinguished from this. Morehead was 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 with 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 abjurationy "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 
 "hereby" 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 
 fathers were born subjects^ and to abjure the heresy of tran- 
 snbstantiation, the invocation of saints, and Popery in general, 
 as the Englishmen who to"ok 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 j Synod, Conference or 
 Association, as one or another denomination might happen, to 
 predominate with the ruling powers. 
 
 And here 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 the 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 were. 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 the United States, prior to the Mexican war,, 
 and since; and they were simply 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 North-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, 
 
16 
 
 That, let us remember, is a government with Legislative, 
 Executive, 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 conduct, 
 is quite a work 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 virtue 
 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 hatefnlness, that of being leveled at the 
 people of a particular State, and this by the ofticionsnessof 
 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 infidelity 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 candidly, would declare that they considered the remedy 
 ten times as bad as the disease. No, 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 disaf- 
 fection does not exist, (as every one 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 common 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 chief justice, 
 Jeffries, went the circuits perverting the law for the condem- 
 nation of all accused, the moody monarch diverted himself 
 
li 
 
 among his parasites and courtiers by speaking of them as 
 Jeffries' campaigns. Sir, the progress of your justices under 
 this ordinance, abjuring men and boys, without regard to the 
 aged, the decrepid, the halt, maimed or blind, under terror of 
 exile or degradation, from the proud privileges of citizenship, 
 will be looked upon by those who have the instincts, not to say 
 knowle !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 hurl from power the authority 
 under 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 is 
 invaded in his home and his conscience, and placed upon the 
 footing of the inhabitant of a besieged city or fortress, or of 
 n conquered rebellious province? A Iioman pro-consul, a 
 British colonial Governor, or a successful General in the armiea 
 of Abraham Lincoln, with an overwhelming force and but 
 feeble resistance, may adopt measures of such dictatorial 
 severity and rigor. W£ are informed that Governor Try on, 
 after overpowering the Regulators at Alamance, marched a 
 military force into many of the upper counties of the then, 
 province, and exacted from the inhabitants an oath of allegi- 
 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? Kay, what arbitrary despotism in 
 its domestic rule, ever embarked in any such enterprize of 
 Quixotic absurdity ? Was it attempted in France under the 
 first Napoleon, or under the third \ Even in the wildest excesses 
 of her revolutionary phrenzy, there seems to have been suffi- 
 cient common sense left to the ruling authorities to enable them 
 to recollect, that "human law is a rule of civil conduct" not 
 of faiths and that only bigotry and fanaticism will attempt to 
 regulate conscience and opinion in government or in religion 
 Charles V., Emperor of Germany and Spain, after waging for 
 years the most bloody and relentless wars, to put down Lnther 
 and the Reformation, becoming sated with carnage,, and dis- 
 gusted with the pageantry of monarchy, yielded up the reins 
 to hie son, and retired to a monastery. There, he amused his 
 2 
 
18 
 
 leisure in scientific studies, and in experiments upon instru- 
 ments for measuring time. But by no diligence or skill was 
 he ever able to make two clocks run alike. This, says his 
 biographer, Dr. Robertson, saddened his soul with remorseful 
 reflections upon his previous life, in which he had caused rivers 
 of blood to flow, in vain and wicked efforts to compel men to 
 think alike. This simple anecdote, which is but an illustration 
 of all human experience, proves the futility and impossibility 
 of controlling thought and opinion: 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 the State, 
 how many in the eighty-five years of 'its independence have 
 taken an oath to the State, or to the United States, during our 
 connection with that government? Those who have filled 
 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 fidelity to the State and 
 general goverement ; but as to the great mass of the people, 
 if they have not literally kept the Scriptural injunction to 
 "swear not at all," it has not been by reason of "any oath of 
 fealty imposed by public authority. And the inquiry will 
 naturally be made, where is the necessity for this novel and 
 most extraordinary proceeding ? The Legislature has been 
 >wice convened in extra session since the breaking Out of the 
 ^present war, and has considered and adopted such measures as 
 thr3y 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. Cresar Augustus sent out a decree that all 
 the world should be taxed. Iho Xorth Carolina Convention 
 is asked to send out a decree that all the world shall be sworn. 
 There is virtue in taxation. 'Money is- the sinews of war— but 
 what nation was ever defended by <,aths, — -oaths imposed on 
 its own people 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 ineffectual, if necessary, inas- 
 much as a forced oath is well understood to be no oath in the 
 sight of man or his Maker, is but to characterize its more ob- 
 vious features. I am full}' pnrsuaded that abroad, if not at 
 home, it will be regarded as the offspring of fear. It will be 
 argued, and thpaiypothesis cannot be resisted, that a proceed- 
 ing so, universal* go unusual, so searching, so destructive of 
 
X 
 
 19 
 
 ersonal freedom and dangerous to public liberty, would not 
 e resorted to except in a State where public sentiment was 
 suppressed by the high hand of force, and a sense of danger 
 had driven the government to desperation. In that aspect no 
 :re could give greater encouragement to the enemy, and 
 no libel could more deeply wound the sensibilities of the peo- 
 ple of the State, or do them more gross injustice. They have 
 k'oked upcn the pending contest as a foreign war, of nation 
 3t nation, waged upon the frontiers b} r national armies. 
 But you propose by this ordinance, to declare it a civil and 
 war, in which no man is to be trusted — in which the se- 
 cret of the right hand may be concealed from the left, until 
 yon have cleansed out the conscience and made assurance 
 doubly sure by a forced oath. It is not enough that 35,00*) 
 men, portions of them from every county in the State, are in 
 t tlie £ old. exposing their lives to the arms of the enemy, and 
 to the pestilence of camp and garrison, and that almost every 
 family has its representative there ; that they have submitted 
 cheerfully to the btirderis 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 give 
 aid to your soldiers* and vigor to their efforts; that there is 
 not a cloud of disloyalty to be seen in all the horizon as big 
 as a man's hand ; but that the whole 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. Paesideut, 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 an mitigated tyrannies? There are doubtless republican-* 
 In principle residing under every monarchy in Europe, and 
 there may be monarchists in the States of America, but so 
 lor g as they demean themselves as peaceable citizens, do B&fc 
 levy war against the State or the Confederate States, nor ad- 
 here to our enemies giving them aid and comfort, they pass 
 without molestation, and are under the protection of the Con- 
 stitution and laws. If there be, as the committee presumes, 
 traitors among us, they are not of my acquaintance, nor, so 
 far as I am aware, of my section. But wherever they are, 
 treason is an offense well known to, and defined by law, and 
 
20 
 
 like other crimes, is to be dealt with according, to law. And 
 it is quite remarkable, that while the committee inveigh with 
 vehemence against the despotism now practiced by the Lin- 
 coln government in Maryland, they should bring forward a 
 measure equally ahorrent to freedom in Xorth-Carolina. Sir, 
 if such a measure prevails and is acquiesced in, it is of little 
 moment what may be the issue of the present great conflict 
 in the battle-field. We shall in the end be in any event slaves,. 
 and present the sad spectacle of a State throwing away its 
 liberties in a struggle to preserve them, in angry imitation of 
 the contagious example of an enemy who threw away theirs, 
 to give vigor to their efforts for our subjugation. I protest 
 against it, as a gross abuse, amounting in effect 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 religious freedom 
 and domestic quiet — in the name of that civil liberty which 
 Is our birthright, and has 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 into 
 ridicule and disrespect at home and abroad, and degrade our 
 citizens in their own estqem — as an officious intermeddling 
 with the province of the Congress of the Confederate States- 
 i — as 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 
 imitation of iNorthera 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 that 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 action, if we shut our eyes to the circumstances and sur- 
 roundings ot historical facts which distinguish former times 
 f.'om our own. Let me inquire of the committee, whose 
 chairman holds a high judicial station, whether this ordinance 
 does not contravene the Bill of Eights and Constitution in the 
 particulars I have enumerated, and if it does, whether a simi- 
 
21 
 
 lar act, passed in 1777, by the General Assembly, did not 
 equally contravene it — and when an act of the General As- 
 
 ibly does come in conflict with the Constitution, which is 
 to" give way? He is obliged to answer, the act of Assembly^ 
 Of course. But it was not so understood in 1777. The opin-i 
 ic>7i seems to have prevailed then, and for years afterwaj Is, 
 that the General A~ as omnipotent as the British 
 
 Parliament, and when, in 1786, the courts of justice decided 
 an act of the Legislature to be unconstitutional, it produced a 
 great shock in the minds of highly intelligent men. This act 
 of 1777. which undertook to banish freemen who were inhab- 
 itants of the State at the adoption of the Constitution, or to 
 deprive them of the right of suffrage if they refused to take 
 aft oath oi' 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 Gon 
 stitution declaring that all freemen 31 years of age, who have 
 
 i inhabitants a 6e rial ft time, and paid public taxc 
 exercise it. But, waiving the eonstdus ■•!, the 
 
 situation of our ancestors in 1776-7, diii7 ■ om 
 
 i at this time, in many particulars to their disadvantage ; 
 ■ in thQ poverty of their resources, and newness of their 
 experiment, it should not surprise us that they laid hold of a 
 test oath as a weapon with which bigotry and arbitrary power 
 had sought to fortify themselves in Europe, hoping they could 
 render it useful in the defence of freedom here. They may 
 possibly have thought that as allegiance under a monarch is 
 viae 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 HI 
 the act that the name of every person taking it should be sub- 
 scribed in a book, to be deposited in the office of the Clerk of 
 the Count}' Court. Who has ever seen such a book? The 
 honorable gentleman from Mecklenburg, JVIr. Osborne, who 
 
 f Note. — On looking into 4th Blackstone's Com. p. 124, it will be seen, 
 that the whole of this statute©? 1777, in relation to a test oath and banish- 
 ment, or disfranchisement as a citizen, is literally copied from the statute cf 
 George 1st against Popish reeusantg. So that the ordinance of the c> m- 
 mittee is but a copy of an act of 1715. applying a religious, test to Papists 
 
 5pt that in the former case two Justices of the Peace were in, e I 
 wifcft power >L to tender the oath to any person whom they shall suspect ta 
 
 iffected," and in our case every person is treated as if suspect*:- id 
 tendered the oath accordingly. Blaskstone says the penalties arc jjctbing 
 shore of s. pr-xuiurdre, 
 
22 
 
 lias just taken his seat, lias made considerable researches in 
 the public papers of his county, which is one of historical 
 renown ; has he ever found 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 least effect. For when the British invaded the State in 
 1780-'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 
 Kichmond, Mr. Leake, hrutum fulmen, producing no effica- 
 cious result. With the men of 1776-% there was a total 
 change of government, and of the administration of govern- 
 ment. With them "old things had passed away, and all things 
 had 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 
 2STorth-Carolina a State government just formed, with no laws 
 or officers to administer tbem, 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 every 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 oaths? 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 pivsumej. 
 under this statute. But he had a trial by due course of law. 
 He was not called on to lurnish 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 fi'i ed 
 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 but suspected 
 persons ? The Revolution of the 20th 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 : ;miio 
 officers in all its departments and ramifications, there has been 
 no change that would cause a ripple 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 
 
affairs the difference is still more remarkable. Instead of no 
 general government, and a dependence on the discordant 
 legislation of thirteen States, we find a Constitution of national" 
 .government copied almost literally from the Constitution of 
 the United States, in full and vigorous operation, with a Pres- 
 ident, Congress and Judiciary — defending our cause with 
 an ;:i r.iy, in effectiveness, if not in numbers, such as the pop- 
 ulous North never poured on the Rhine or the Danube, or the 
 sunny plains of Italy — with treason defined in the Constitu- 
 tion for the security of' the citizen as well as safety to the 
 government— with the possible power to pass sedition and test 
 laws for its defence, like as the State governments, but like 
 those governments abstaining from the use of them, as the 
 cast-off paraphernalia of despotism. To think of bringing a 
 State test oath into play as a means of defence in such a pos- 
 ture of affairs, upon a precedent of an unconstitutional act of 
 Assembly in 1777, is to way mind, as if one should propose, in 
 the midst of rifled cannon and all the advancement and 
 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 of this continent. Let them, 
 both be consigned where the} T belong, to the curious investi- 
 gations of the antiquarian ; but let us hear no more of thein 
 in the enlightened legislation of a free people. 
 
 Mr; President, there is one diversity in the two revolutions, 
 which, when Drought 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 Governor 
 Martin or Governor Trvon, and of bringing over Lord Mails- 
 field with his high tory principles lq their chief justiceship, as 
 to have appointed one of the late Kings' Judges. Whereas", 
 our State officers, as we have seen, have been unchanged m 
 a single particular ; and in appointments to office under the 
 Confederacy, it has been no objection that tlie appointee held 
 a similar appointment with a regular commission and oath of 
 office, and received its emoluments from the Federal Treasury 
 to the las;- pay day, before the Proclamation of the 18rh of 
 April, Now Sir, in the .Revolution of 1776, this would not 
 have been permitted. The first persons on whom the act of 
 1777, to which the committee refers in terms of such high 
 .-approbation, laid its hands and required to be sworn, were all 
 the, late- ojice 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." There are many copies of 
 
24 
 
 Iredell's Eevisal, stowed away in the houses of the people of 
 the country: and when they are informed that the precedent 
 for this ordinance is to be found there, they will brush the dust 
 from the. old. book and re&d it for themselves. And 
 la is to be executed so rigorously on them, they will demand 
 to know whether you began at the beginning and" cleared out 
 all who held office under the lata government'; and when 
 they are told no; such person's have been considered eligible 
 ; ce under the new government, and no questions a 
 
 they will scout the precedent of 1777, and say if we are : 
 purged with this great oath or leave the country, those who 
 held the offices, and received their compensations under the 
 eld government, should take a dose that would uubreach a 
 cannon, at least before they are trusted with official p» 
 lapprehend, Sir, --when the subject is viewed in this li 
 n , though the}- have not slept for. the lasj; year like flip 
 Van Winkle, may cor; ? conclusion that there lias been 
 
 no very violent revolution abc-r all, and that if there has, such 
 t -rearing is not Christian-like or decent, 
 
 J : ■'. ent, the first and second sections of this ordi- 
 
 nance are scarcely less objectionable than what I have been 
 considering. The report of the committee informs us, that 
 the offences therein enumerated, and which the committee 
 calls sedition, were in the act of 1777, called misprision of 
 treason. It is, therefore, reviving an obsolete high crime 
 under a new and milder, name. The American world, at 
 least, has made some progress as to these crimes of Lam 
 Ma est;/, treason, misprision of treason, etc., since 1777. It 
 was a great point gained for human life and liberty, that in 
 the Federal Constitution of 17*7, treason was defined to con- 
 sist only in levying war against the United States, or in adher- 
 ing to their enemies, giving them aid and comfort ; a pro vision 
 that has been literally copied in the Constitution of the Con- 
 federate States — and by an ordinance of this body, into that 
 of this State also. It is enough to make the blood run cold, 
 now to review the history of what were at different times 
 denominated and adjudged treason in England, and to remem- 
 ber what hetacombs of human victims the fluctuating state of 
 the law, and its pliant, and corrupt apministrntion, to favor the 
 views ot the reigning sovereign or of his minions, can! 
 the scaffold and the gibbet. An extraordinary instance of 
 treason by words, was mentioned in our discussion of this 
 subject at the last session, where a man of note was put to 
 death for declaring m a moment of irritation, on hear 
 the shooting by the King, of his favorite stag, that "be wished 
 the horns of the stag were in the King's belly." As Plutarch 
 
'2,0 
 
 relates of Dionysius. the tyrant, that he capitally executed a 
 : mbject for relating that he had dreamed he killed the King, 
 
 A that he thought of it while awake. Sir, 
 Mney ana H, and a hundred other martyrs 
 
 f ti • reedom, which loomed out in the English : 
 
 ration ox j id assumed its fail proportions in our Ameri- 
 
 can Coiistittti: ntury later, will rash upon our men 
 
 ■j.z the don of this the'hie, and illustrate the v. 
 
 the c- :. While it sufiioieu:. 
 
 His and parricidal hands, it pr. 
 the citizen from that vortex of constructive and expl 
 treasons, which has engubphed in bloody arid premature graves 
 so many innocent men. - To prevent the possibility of , 
 cala-Hi treason to offences 
 
 >f minor impor.fanf!^, isays Chief -Justice Marshall,) that great 
 
 ednch defines and limits the various d: 
 ,3iit, has given a rule on tb 
 to the Legish 
 
 can be permitted to transcend." With this limita 
 charges of treason, and the experience of that rational freed. ,m 
 justiru lion of the State, came more liberal 
 views in relation to the interior crimes of its class. Mis- 
 prision of treason has entirely disappeared from the statute 
 book of the State. It. is formd in that of the United States, 
 covering only a single offence, according to its literal meaning, 
 that of concealing and 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 
 round in our Revised 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. This was abundantly proved in the 
 case of Daniel Worth', and of others. This law applies to 
 attempts to excite rebellion in a degraded caste in our society, 
 wholly 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 fredom 
 of speech and of the press may be imposed, beyond those 
 provided by the common law, it lias never been found n< 
 sary to call them into operation heretofore. There seems to 
 have been a general, acquiescence in the doctrines of Jeffer- 
 son in his inaugural address. " If there be any among us who 
 would wish to dissolve this Union [Confederacy] or to chi 
 its republican form, let them stand undisturbed as monuments 
 of the safety with which error of opinion may be tolerated, 
 
26 
 
 where reason is left free to combat it." I have myself been 
 accustomed to associate statutes of_sedition with those indict- 
 ments for seditious libel, where there were attempts to screen 
 corruption, imbecility, favoritism, and the insolence of office, 
 by criminal prosecutions against persons who exposed them, 
 and when the gallantry of Erskine, Cumin, and other advo- 
 cates at the English and Irish bar won immortal names in 
 wrestling with a domineering and subservient bench, that 
 never forgot the hand that elevated it above the people, nor 
 its favorites, and prevailing in the 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 Oateses, Bedloes, etc., thronging the gates of office and 
 patronage, in the character of spies and informers, ready to 
 discover Meal-tub plots and Rye-house plots of the most direful 
 import, and to accuse any man, whom it might be desirable to 
 hunt down and destroy. You propose by the first section of 
 this ordinance, to create nine indictable offences, every one 
 of which is described in a manner so loose and undefined, as 
 to hold out the greatest temptations to malignant accusers, and 
 to produce neighborhood strifes without end. I shall not 
 detain the Convention by a recital of them. Their counter- 
 part may 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 imporiant in the field — 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 in the 
 treasons for which they die, &c. 4. Black. Com.. 123. Sir, the 
 whole doctrine is unsuited to onrfree 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 us, and will enable 
 us to enforce it — and if it is nor, no new statutory enactment 
 wilj be enforced. The 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 wa3 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 the State is accessible 
 on brief notice by Railroad, and the miliary power may be 
 exerted with eifect on the first appearance of insurrection. 
 
 But, Sir, the whole scope of this ordinance is to give proper 
 defence and protection to the Confederate States. There are 
 a few expletives thrown in, in which the State is mentioned, 
 but th'.y seem only designed to fill out, a sentence, and give 
 roundness to a period. Kow what businesisit 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-office, 
 or piracy against, its ships on the sea ? If there is to be such 
 a crime as sedition against that government, ought it not 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 
 functions? If that Congress has the same propensity to copy 
 that prevails here, they need only turn to the administration 
 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 otdi- 
 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 ibis was 
 the same with the sedition law of 1798. It is infinitely worse. 
 Jtfdge 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 evidence 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 ft 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 (he 
 truth the greater the libel." So that if any man "shall pub- 
 
iish and deliberately speak or write against our public defence," 
 (this is one of the offences it creates) no matter how true may 
 c>e the words written or spolcen, such as that a commanding 
 General tied ingloriously from a field of battle, when victory 
 was wi.hi'n his grasp, or that from his incompetency he . 
 
 half his command v. ithont any conce: 
 although! it may be every word true, the party who wrok. erf 
 spoke tii us, must be con vie 
 
 if il\e (yongress of the Confederate States desires to tr- 
 over again the experiment of a Sedition Law-of 1798, or to 
 go baek beyond it. and re-copy old penal statutes made to pun 
 •iown . or uphold the prerogatives of royalty, the way 
 
 iv open tci them. But let us not render ourselves a 
 et of me .. by taking better care of that govern- 
 ment then it tabes of itself. Let us not stigmatize oar people 
 by sin em out as peculiar subjects for the operation of 
 
 _aws of this kind. Let us not give just cause of offence- to 
 them, by showing a distrust of that elevated patriotism end 
 unanimity with which they are sustaining their e< 
 '. '■ her hour of trial. -Let iT-vabandon this measure as in 
 itiii, as it is insulting, oppressive and unjust. I ash the yeas 
 ... nays on the question of its indefinite postponement.* 
 
.APPENDIX. 
 
 1KB FOLLOWING IS THE ORDINANCE, PRESENTED BY ME. JjjIGG'S, 
 OF MARTIN, CHAIRMAN OF THE COMMITTEE : 
 
 AN ORDINANCE 
 
 To define and punish Sedition, and to prevent the dangers 
 ■xhieh may etrise from persons disaffected to the State. 
 
 Be it ordaiitcel. That if any person within this State shall 
 attempt to convey intelligence to the enemies of the Confed- 
 erate States, or shall publish and deliberately speak or write 
 against our public defence : or shall maliciously and advisedly 
 endeavor to excite the people to resist the Government of 
 tliis State or of the Confederate States ; or persuade them to 
 return to a dependence on the Government of the United 
 States ; or shall knowingly spread false and dispiriting news : 
 or maliciously or advisedly terrify and discourage the people 
 from enlisting into the service of this State or of the Confeder- 
 ate States ; or shall stir up or excite tumults, disorders, or 
 insurrections in 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 adjudged 
 guilty of a high misdemeanor, and shall be fined and impris- 
 oned at the discretion of the court, 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 
 oeople in the State for three years thereafter. 
 
 2d. Any Judge or Justice of the Peace on complaint to him 
 made on the oath ©r affirmation of one or more credible per- 
 son or persons, shall cause to be brought before him any 
 offender 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 
 jfche county. 
 
 3d. It shall be the duty of every free male person in this 
 State above sixteen years of age, (volunteers 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 officer authorized to administer oaths, to take 
 the following oath or affirmation : 
 
 " 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 
 North-Carolina, and will to the utmost of my power, support, 
 maintain and defend the independent government of the 
 Confederate States of America against the government of the 
 United States, or any other power, that by 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 Confederate 
 States, so help me God." 
 
 And it shall be the duty of every officer administrating 
 such oath to certify under his hand and sea! to the next county 
 court which may be held in the county where the jurors or 
 affirmants reside, the names of all persons, who have taken 
 the oath before him, which certificate shall be recorded by 
 the clerk of the county court in a book to be kept for that 
 purpose. 
 
 4.-th. Every male person as aforesaid who shall fail or neglect 
 to take the said oath or affirmation on or before the first day 
 of January next, may, by any Justice of the 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 affirmation, (except 
 excused by sickness, unavoidable necessity, or other sufficient 
 reasons to be adjudged of by the next county court,) shall be 
 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. Provided howeve?', That the county 
 court may, in their discretion, permit a person failing as afore- 
 said, to remain in the State. 
 
 oth. If such 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 by his 
 vote to be a member of Assembly, Governor, or any other 
 officer; and if any person shall be directed to depart out of 
 the Confederate Slates, and shall not quit the State within 
 thirty days, then such person may be apprehended by the 
 wan-ant of any Judge or Justice of the Peace in fills State 
 (whose duty it shall he to issue such warrant) and shall be 
 brought before the county court, where the order was made, 
 and the said court shall, in such case, send the person so 
 offending, as speedily as may be, out of the Confederate 
 States, at the costs and charges of such offender (if he has the 
 means to pay the same.) and to this end shall, and may direct 
 the Clerk of the court to issue an order to any Sheriff in the 
 State to seize and sell so much of the goods and chattels, 
 lands and tenements of such person in his county as may be 
 judged necessary by said court to defray the costs and charges, 
 together with the costs and charges of apprehending and 
 confining such person until he shall be sent out of the Confed- 
 erate States; and such sheriff shall execute proper convey- 
 ances for any property so sold, and return the money arising 
 by any sale made by virtue of such order, afier deducting his 
 fees and commissions as in other cases, to the next county 
 court of the county whence such order issued, under the pen- 
 alty of five hundred dollars, to be recovered, upon motion 
 against the Sheriff and his sureties, by the county Solicitor 
 for the use of the county, after ten days notice; and if.anv 
 surplus shall remain after paying all costs and charges as 
 aforesaid, the county court shall cause such surplus to be paid 
 to the owner. 
 
 6th. If any person so departing or sent off from this State 
 shall return to the same, then such person shall be adjudged 
 guilty of treason against the State, and shall, and may be, 
 proceeded against in like manner as directed in case of treason. 
 
 7th. This Ordinance may be modified or repealed by the 
 General Assembly — shall fake effect at the date of its ratifi- 
 cation, and be published by the Secretary of State as soon as 
 practicable thereafter, in one (if there be one) newspaper in 
 each Congressional District, and at each Court House in the 
 several counties of the State. 
 
S bo. 
 
 T s book is due on the ■' 
 
 f "mn^>rj