« PrejšnjaNaprej »
the government of the United States, he shall, before entering upon the duties thereof, instead of the oath prescribed by the act of July two, Eighteen hundred and sixty-two, take and subscribe the following oath or affirmation:
“'‘I, A... B..., do solemnly swear or affirm that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter, So help me God.' ''32
On February 15, 1871, Congress passed another act by which it was provided: "When any person, who is not rendered ineligible to office by the provisions of the Fourteenth Amendment to the Constitution, shall be elected or appointed to any office of honor or trust under the government of the United States, and shall not be able on account of his participation in the late rebellion to take the oath prescribed in the act of Congress approved July second, Eighteen hundred and sixty-two, said person shall, in lieu of said oath, before entering upon the duties of said office, take and subscribe the oath prescribed in an act of Congress entitled, 'An act prescribing an oath of office to be taken by persons from whom legal disabilities shall have been removed.' ''33
On the 13th of May, 1884, still another act was passed by Congress which provided: "Hereafter the oath to be taken by any person elected or appointed to any office of honor or profit either in the civil, military or naval service except the President of the United States, shall be as prescribed in section 1757 of the Revised Statutes."'34
It will be observed that there is a broad difference between the form of this oath and the one prescribed by the act of June 1, 1789. That oath only required the person. taking it to support the Constitution of the United States, whereas the present oath requires the person who takes it to support and defend the Constitution of the
32 15 U. S. Statutes at Large, 85.
33 16 U. S. Statutes at Large, 412, 413. R. S., Sec. 1757.
34 23 Statutes at Large, 22 1 Supp. R. S., 428.
United States, against all enemies, foreign and domestic, that he will bear true faith and allegiance to the same; that he takes the oath freely, without any mental reservation or purpose of evasion; and that he will well and faithfully discharge the duties of the office on which he is about to enter and to the truth and performance of all this the oath invokes the help of Almighty God. An invocation which was omitted in the original form of the oath. None of the oaths requires the person taking it to defend, obey or observe the laws of the United States. This would seem to be a singular omission.
The provision as to taking the oath is mandatory upon all officers included in it.-In Thomas, Sheriff, v. Taylor, the question of the force and obligation of this clause came before the Supreme Court of Mississippi and it was held that the provision that Senators, Representatives in Congress and other officers shall be bound by oath or af firmation to support the Constitution is mandatory and compliance with it is necessary. "We cannot think," said Peyton, J., "that so important a provision in the paramount law of the land was intended to be merely directory, and not absolutely necessary to be complied with."
Commenting upon the provision, the court (p. 697) said: "The sad experience of the inefficiency of the old Confederation, which was a mere league of States, without any cohesive power or energy, forced the people of the States to surrender the league then existing and to establish a national Constitution of government, which has been the subject of different interpretations according to political complexion of parties, with reference to the extent of the powers of the Federal and State governments; yet it is a historical fact, that although many declarations of rights, many propositions, and many protestations of reserved powers are to be found accompanying the ratifications of the Constitution in the various State conventions, sufficiently evincive of the extreme caution and jealousy of those bodies and of the people at large, there is nowhere to be found the slightest allusion to the instrument as a compact of States in their sovereign capacity and no reservation of any right, on the part of any State, to dissolve its connection or to abrogate its assent, or to suspend the operations of the Constitution as to itself. ''35
35 42 Miss. 651, 700.
But no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Mr. Pinckney85a was the author of this famous provision. In the Convention he moved it as an amendment to the foregoing clause and it was agreed to without objection. In his speech in support of his amendment he said: "It is a provision the world will expect from you in the establishment of a system founded on republican principles, and in an age so liberal and enlightened as the present."'36 The Amendment was prompted by a desire to keep Church and State forever separate and distinct in the United States.
It has received the universal approval of the American people, as it received the unanimous approval of the Convention. No effort has been made to change or abolish it. On the contrary, an amendment to the Constitution was proposed as late as 1876 which excluded ministers of any denomination from holding any office under the government of the United States, and also prohibited the requirement of any religious test as a qualification for office under the United States or any State in the United States.37
35a The authorities are not agreed which of the Pinckneys was the author of this provision. Some attribute it to Charles Pinckney, while others say that Charles Cotesworth Pinckney was the author.
36 Journal, 640. Moore's American Eloquence, vol. 1, 369. On this subject Hamilton's language was, "Nor shall any religious sect, or denomination, or religious test for any office or place, be ever established by law." Hamilton's Works, vol. 2, 406.
37 Belief in the existence of a Supreme Being and the Christian religion was an essential part of the oath taken by members of some of the State legislatures under their State Constitutions before the adoption of the Federal Constitution.
Members of the House of Representatives of Pennsylvania under the Constitution of 1776, subscribed to the following in addition to taking the oath of allegiance: do believe in one God, the creator and governor of the universe, the rewarder of the good and the punisher of the wicked; and I do acknowledge the Scriptures of the Old and New Testament to be given by divine inspiration." Poore's Charters, vol. 2, 1543.
The members of the General Assembly of Delaware under the Constitution of 1776 subscribed to the following declaration, besides an oath: "I, do profess faith in God the Father, and in Jesus
Commenting upon this provision, Chief Justice Marshall, in M'Culloch v. Maryland,38 said:
"The powers vested in Congress may certainly be carried into execution, without prescribing an oath of office. The power to exact this security for the faithful performance of duty is not given, nor is it indispensably necessary. The different departments may be established; taxes may be imposed and collected; armies and navies may be raised and maintained; and money may be borrowed, without requiring an oath of office. It might be argued, with as much plausibility as other incidental powers have been assailed, that the Convention was not unmindful of this subject. The oath which might be exacted-that of fidelity to the Constitution-is prescribed, and no other can be required. Yet, he would be charged with insanity who should contend, that the Legislature might not superadd to the oath directed by the Constitution such other oath of office as its wisdom might suggest.
Chief Justice Taney, in Ableman v. Booth, observed: "Nor is there anything in the supremacy of the General Government, or the jurisdiction of its judicial tribunals, to awaken the jealousy or offend the natural and just pride of State sovereignty. Neither this Government, nor the powers of which we are speaking, were forced upon the States. The Constitution of the United States, with all the powers conferred by it on the General Government, and surrendered by the States, was the voluntary act of the people of the several States, deliberately done, for their own protection and safety against injustice from one another. And their anxiety to preserve it in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State, is proved by the clause which requires that the members of the State Legislatures, and all executive and judicial officers of the several States (as well as those of the General Government), shall be bound, by oath or affirmation, to support this Constitution.
Christ His only Son, and in the Holy Ghost, one God, blessed for evermore, and I do acknowledge the Holy Scriptures of the Old and New Testament to be given by divine inspiration." Poore's Charters, vol. 1, 276.
38 4 Wheaton, 316, 416. 39 21 Howard, 506, 524.
"This is the last and closing clause of the Constitution, and inserted when the whole frame of Government, with the powers hereinbefore specified, had been adopted by the Convention; and it was in that form, and with these powers, that the Constitution was submitted to the people of the several States for their consideration and decision."
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.
In the orderly arrangement of the articles of the Constitution it was proper that the manner of controlling the ratification of that instrument should be the last article in it. It was provided in the Articles of Confederation that no alteration should be made in any of the articles, unless it were agreed to in a Congress of the United States and afterwards confirmed by the legislature of every State.40 This required that two things must be done: First, the alteration must be agreed to in Congress, and, second, it must be confirmed by the vote of every State. Any one State under this provision had the power to defeat any change, however desirable and important, and though all the other States favored it.
It was felt in the Convention that if such unanimity was required to ratify the Constitution it might never be ratified. The first outline of a method of ratification of the Constitution was in the following resolution found in Mr. Randolph's plan for a Constitution:
"Amendments which shall be offered to the Confederation, by the Convention, ought, at a proper time or times, after the approbation of Congress, to be submitted to an assembly or assemblies of representatives, recommended by the several legislatures, to be expressly chosen by the people to consider and decide thereon. ""41
This resolution apparently contemplated that certain amendments would be offered to the Articles of Confederation, and suggested that the amendments should be submitted to assemblies of representatives which should be
40 Articles of Confederation, Article 13.
41 Journal, 63.