World Affairs Institute

Argument of Thos. S. Grimke' in the case of the State, ex relatione McCrady vs. Hunt, April, 1834 by Thos. S. Grimke American Advocate of Peace (1834-1836), Vol. 1, No. 1 (JUNE, 1834), pp. 52-54 Published by: World Affairs Institute Stable URL: http://www.jstor.org/stable/27886768 . Accessed: 04/10/2013 02:15
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52Gurney's Essay ?An 5.

on War:

[June,,

War, and on itsLaicfulness under the Christian Essay on Dispensation. By Joseph John Gumey. Providence, 1834.
pp. 24.

" This tractwas published at London by the Society for thePro motion of Permanent and Universal Peace," as the 12th of their series. It is re-printedin this country for the trusteesof the fund established by the late Obadiah Brown, of Rhode Island, forthe It contains a pretty full exami purpose of publishing such works.
nation

theOld andNew Testament.

of

the Scriptural

argument

concerning

war,

as

drawn

from

en 6. ?Argument of Thos. S. Grimke' in thecase of theStale, rela vs. 1834. Charleston, S. C. tione^McCrady Hunt, April,
J. S. Barges, pp. 28.

The violent proceedings in South Carolina, growing out of the Tariff law of Congress, are probably fresh in the recollectionof our
been been

shed, entertainedby many persons. Happily

realized : we to establish

readers,

as well

as

the serious

apprehensions

of civil war

these fears have not

and

blood

Grimke's

the foundationsof theUnion. The followingstatementof the case will put the reader in possession of the occasion and scope cfMr.
argument. COURT OF APPEALS. Monday, JOHNSON March 31, 1834. JUSTICES & HARPER. IN THE

stitution,

of recent events has that the influence believe more the Con firmly the true doctrine concerning and to the General the relation of the States Government,

PRESENT,

The Stato, Ex Relatione Edward M'Crady, ) vs. V Col. B. F. Hunt, Commanding lGth Rcg't So. Ca. Militia. ) who were elected on the 5th o? Octc*. The members of the Legislature, ber, 1832, at an extra session, on the 26th day of October, passed in Act to provide for the calling of a Convention of the people of this Stats ; the preamble and first clause are as follows : the Congress of the United States hath, on divers occisions, Whereas, laws laying duties and imposts for the purpose of encouraging and enacted and for other unwarranta protecting domestic or American manufactures, ble purposes ;which laws, in the opinion of the good people of thisStste, and the Legislature thereof, are unauthorized by the Constitution of theUnited States, and are an infringement of the rights reserved to the States respect injury and oppression of the citizens of ively, and operate to the grievous to the State assembled in Conventi or, it be And whereas, South Carolina. longs to determine the character of such acts, as well as the nature and extent of the evil, and the mode and measure of redress : Be it therefore enacted, by the Senate and House of the of Representativa noio met and sitting in General State of South Carolina, Assembly, aid it i> a Convention of the People hereby ordained by the authority of the same, That of the said State, shall be assembled at Columbia, on the 3d Mondayin No vember next, then and there to take into consideration the several Act? of the of the United States, imposing duties or; foreign imposts for the Congress and for other unauthorized protection of domestic manufactures, objects ; to

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1834.]

Grrimke's Argument.

53

determine on the character thereof, and to devise the means of redress : and further, in like manner, to lake into consideration such acts of the said Con gress laying duties on imports, as may be passed in amendment of, or substi tution for, the act or acts aforesaid ; and als**, all other laws and acts of the Government of the United States, whiuh shall be passed or done, for the pur pose of more effectually executing and enforcing the same. The Convention at Columbi:?, on the 18thMarch, 1833. passed an Ordinance, toNullify an Act of the Congress of theUnited States, entitled An Ordinance entitled "An Act further to provide for the collection of duties on imports," in the following commonly called Force Bill, containing a separate clause do iurther ordain and declare, that the allegiance of the citi words :??* We zens of this Sta'-i. while they continue such, is due to the said State ; and that is due by them to any other power or author obedience only and not allegiance, ity, to whom a control over them has been, or may be delegated by the State .; and that the General Assembly of the said State, is hereby empowered, from time to time, when theymay deem itproper, to provide for the administration to the citizens and officers of the State, or such of the said officers as they may think fit, of suitable oaths or affirmations, binding them to the observance of such allegiance, and adjuring all other allegiance ; and also to define what shall amount to a violation of their allegiance, and to provide the proper pun ishment for such violation. 1833, entitled, "An Act By an Act passed on the 19th day of December, to provide for the Military organization of this State," itwas enacted as fol lows:?"In addition to the oaths now required by law, every officer of the hereafter elected, shall, before he enters on the duties of his office, Militia, take and subscribe, before some person authorized by law to administer oaths, the following oath ;?41, A. B., do solemnly swear, (or affirm, as the case may be,) that I will be faithful and true allegiance bear to the Stats of South " Carolina.' On the 28th February, 1834, Edward M'Crady was elected Lieutenant of theWashington Light Infantry, a military corps in the city of Charleston, and the officer of applied for his commission, which Colonel Hunt, commanding the Regiment, refused to grant, unless he would take the above oath ;which he refused to do, and applied to Judge Bay, for a rule to show cause why a Writ of Mandamus should not issue, to require the said Colonel Hunt to de liver to the plaintiff his commission. His Honor, upon hearing the case, dismissed the rule ; and from his judg ment the relator appeals, and moves the Court of Appeals to reverse the order made by Judge Bay, and to make the rule absolute, and takes in support of hie motion the following grounds : First, That it is a violation of the Constitution of this State, to require the the 4th ar Because appellant to take the oath contained in theMilitary Bill. ticle of the Constitution declares, that "All persons who shall be chosen or appointed to any office of profit or trust, before entering on the execution thereof, shall take the following oath :?" I do swear or affirm, that 1 am to exercise the duly qualified, according to the Constitution of this State, office to which I have been appointed, and will, to the best of my abilities, the duties thereof, and preserve, protect and defend the Constitu discharge tion of this State, and of the U. States." And that so much of the Military Bill as goes to add to or alter the foregoing oath, or to impose any other oath of office, is, therefore, unconstitutional and void. to enact the oath contained Secondly, That the authority of theLegislature in the Military Bill, cannot be derived from the ordinance of 1833, for the fol lowing reasons: 1. That the terms of the Ordinance are not pursued, nor its authority re ferred to, in the enactment of the said oath ; nor does it appear, with certainty, that the oath contained in the Military Bill, is an oath binding the citizens to the observance of such allegiance as the Ordinance defines. 2. Because the .Convention did not authorize, and in fact could not author 7

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54

Grimk?s

Argument.

[June,

to overrule the Constitution, by changing one of its arti, ize, th? Legislature cles, without conforming to the rule, by which all amendments to the Consti tutionmust take place. And for this proposition, the appellant has the author ity of the same Legislature, who, by bringing in and passing a Bill to change the Constitution in this behalf, have confirmed and ratified this construction. 3. Because in undertaking to define allegiance, the Convention, and to es tablish a Test Oath, exceeded their poweia, as those matters are not within the objects for which they were called. 4. Because the Ordinance iiself :3 clearly repugnant to the Constitution of the United States, and therefore null and void. p. 1,2.

The argument is able and learned. By decision of theCourt of Appeals in thiscase, the former judgment was reversed, and the Nullifying Ordinance of theConvention,and theTest Oath enacted by theLegislature of South Carolina, were declared to be contrary to the Constitutionof theU. S. and therefore null and void

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