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OATHS OF OFFICE — RELIGIOUS TEST RATIFICATION OF CONSTITUTION.
§ 1837. The next clause is, "The senators and "representatives before mentioned, and the members "of the several state legislatures and all executive "and judicial officers, both of the United States and "of the several states, shall be bound by oath or "affirmation to support the constitution.1 But no "religious test shall ever be required as a qualifica"tion to any office or public trust under the United « States."
§ 1838. That all those, who are entrusted with the execution of the powers of the national government, should be bound by some solemn obligation to the due execution of the trusts reposed in them, and to support the constitution, would seem to be a proposition too clear to render any reasoning necessary in support of it. It results from the plain right of society to require some guaranty from every officer, that he will be conscientious in the discharge of his duty. Oaths have a solemn obligation upon the minds of all reflecting men, and especially upon those, who feel a deep sense of accountability to a Supreme being. If, in the ordinary administration of justice in cases of private rights, or personal claims, oaths are required of those, who try, as well as of those, who give testimony, to guard against malice, falsehood, and evasion, surely like guards ought to be interposed in the administration of high public trusts, and especially in such, as may concern the welfare and safety of the whole community. But there are known denominations of men, who are conscientiously scrupulous of taking oaths (among which is that pure and distinguished sect of Christians, commonly called Friends, or Quakers,) and therefore, to prevent any unjustifiable exclusion from office, the constitution has permitted a solemn affirmation to be made instead of an oath, and as its equivalent.
1 This clause, requiring an oath of the state and national functionsries to support the constitution, was at first carried by a vote of six states against five ; but it was afterwards unanimously approved. Journ. of Convention, p. 114,197. On the final vote, it was adopted by a vote of eight states against one, two being divided. Id. 313. The clause respecting a religious test was unanimously adopted. Id. 313.
§ 1839. But it may not appear to all persons quite so clear, why the officers of the state governments should be equally bound to take a like oath, or affirmmation; and it has been even suggested, that there is no more reason to require that, than to require, that all of the United States officers should take an oath or affirmation to support the state constitutions. A moment's reflection will show sufficient reasons for the requisition of it in the one case, and the omission of it in the other. The members and officers of the national government have no agency in carrying into effect the state constitutions. The members and officers of the state governments have an essential agency in giving effect to the national constitution. The election of the president and the senate will depend, in all cases, upon the legislatures of the several states; and, in many cases, the election of the house of representatives may be affected by their agency. The judges of the state courts will frequently be called upon to decide upon the constitution, and laws, and treaties of the United States; and upon rights and claims growing out of them. Decisions ought to be, as far as possible, uniform; and uniformity of obligation will greatly tend to such a result. The executive authority of the several states may be often called upon to exert powers, or allow rights, given by the constitution, as in filling vacancies in the senate, during the recess of the legislature; in issuing writs of election to fill vacancies in the house ol representatives; in officering the militia, and giving effect to laws for calling them; and in the surrender of fugitives from justice. These, and many other functions, devolving on the state authorities, render it highly important, that they should be under a solemn obligation to obey the constitution. In common sense, there can be no well-founded objection to it. There may be serious evils growing out of an opposite course.1 One of the objections, taken to the articles of confederation, by an enlightened state, (New-Jersey,) was, that no oath was required of members of congress, previous to their admission to their seats in congress. The laws and usages of all civilized nations, (said that state,) evince the propriety of an oath on such occasions; and the more solemn and important the deposit, the more strong and explicit ought the obligation to be.*
§ 1840. As soon as the constitution went into operation, congress passed an act,3 prescribing the time and manner of taking the oath, or affirmation, thus required, as well by officers of the several states, as of the United States. On that occasion, some scruple seems to have been entertained, by a few members, of the constitutional authority of congress to pass such an act.1 But it was approved without much opposition. At this day, the point would be generally deemed beyond the reach of any reasonable doubt.'
1 The Federalist, No. 44; 1 Tuck. Black. Conn. App. 370, 371; Rawle on Constitution, ch. 19, p. 191, 192. s 2 Pitk. Hist. 22; 1 Secret Journ. of Congress, June 25,177B, p. 374. a Act of 1st June, 1789, ch. I.
^ 1841. The remaining part of the clause declares, that "no religious test shall ever be required, as a "qualification to any office or public trust, under the "United States." This clause is not introduced merely for the purpose of satisfying the scruples of many respectable persons, who feel an invincible repugnance to any religious test, or affirmation. It had a higher object; to cut off for ever every pretence of any alliance between church and state in the national government. The framers of the constitution were fully sensible of the dangers from this source, marked out in the history of other ages and countries ,- and not wholly unknown to our own. They knew, that bigotry was unceasingly vigilant in its stratagems, to secure to itself an exclusive ascendancy over the human mind; and that intolerance was ever ready to arm itself with all the terrors of the civil power to exterminate those, who doubted its dogmas, or resisted its infallibility. The Catholic and the Protestant had alternately waged the most ferocious and unrelenting warfare on each other; and Protestantism itself, at the very moment, that it was proclaiming the right of private judgment, prescribed boundaries to that right, beyond which if any one dared to pass, he must seal his rashness with the blood of martyr
1 Lloyd's Debates, 218 to 225; 4 Elliot's Debates, 139 to 141. 2 See also MCuUoh v. Maryland, 4 Wheat. R. 415,416.
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dom.1 The history of the parent country, too, could not fail to instruct them in the uses, and the abuses of religious tests. They there found the pains and penalties of non-conformity written in no equivocal language, and enforced with a stern and vindictive jealousy. One hardly knows, how to repress the sentiments of strong indignation, in reading the cool vindication of the laws of England on this subject, (now, happily, for the most part abolished by recent enactments,) by Mr. Justice Blackstone, a man, in many respects distinguished for habitual moderation, and a deep sense of justice. "The second species," says he "of non-conformists, are those, who offend through a mistaken or perverse zeal. Such were esteemed by our laws, enacted since the time of the reformation, to be papists, and protestant dissenters; both of which were supposed to be equally schismatics in not communicating with the national church; with this difference, that the papists divided from it upon material, though erroneous, reasons; but many of the dissenters, upon matters of indifference, or, in other words, upon no reason at all. Yet certainly our ancestors were mistaken in their plans of compulsion and intolerance. The sin of schism, as such, is by no means the object of temporal coercion and punishment. If, through weakness of intellect, through misdirected piety, through perverseness and acerbity of temper, or, (which is often the case,) through a prospect of secular advantage in herding with a party, men quarrel with the ecclesiastical establishment, the civil magistrate has nothing to do with it; unless their tenets and practice are such, as
1 Sec 4 Black. Comm. 44, 53, and ante, Vol. I, $ 5a