Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1827-01-20

e,;.. a,,,rc which passed the law. aud an Execu-
nve officer who tenders the oath without the agen-
81 CIV of the Judicial department without the OBJ
,e,v.nce OF the rights secured by the constitution
If you can do this iu puni-bing one mlsdemeanour
YOU may do i, in rel'tion to anctneri ana IN 'h'
case Of every felony. Do this, and what, be asked
becomes of the Judiciary? tits virtually annulled
and all the securities Of the Constitution are des-
,roxed so far as they depend on Judicial indepen
4 aence and integrity.
Another objection to the act was, 'h't II vioa'e'
,e principles OF the 9Th Section ihe ili OF hig"'s
..Lcb proyided that '.in all criminal prosecutions
.. man has right to demand the cause anu ma ure OF
.. Inc acquisition, to be coniron'ed with the &C :
. e,,s,rs and Witnesses TO call Tor evidence IN his
9. favor and to a speedy trial by an 'snraiuai jury
., Of Iii. vicinage, without whose unanimous eou>
:. sent, he canno, be found guilty. nor can ne oe
compelled 10 give evidence against himsei'i &c
Here, he remarked, are other l'mna'ioas o" the
rover Of the Legislature in the administration OF
the criminal code. Impose ~ha, punishmenis-
prescribe what modes OF applying them you will,
| If the privileges here secured by the Bill Of
Rights be not preserved, they become arbltra-
~ and unconstitutional. If ,he Legislature could
he prevailed on TO pass general law, annnullins
these ines,iuable privileges, even in respect tn the
most atrocious murder or the most contemplate
theft. Virginia would be convulsed TO her centre,
unless, indeed, she had become utterly degenerate
aud base Yet, by the anti -jue,ling law you deny
osty of youthful feeling, had sent challenge, the
Ibeuefit OF all hese Safeguards, so soleinnly guar
4 ante ed hy the Constitution. Unable or unwilling
10 establish his guilt by The ordinary means, you
apply the test-oah 10 his conscience. lie appeals
TO the bill of rights asks who is his accuser the
witnesses against him, and legal rrosecuorsi You
scarcely desn him answer; but cody opening
the statute DO *. you tell him, the law suppress
dueliing dispenses with accusers, Witnesses, and
prosecutors. He demands the ;nes,imabie privi-
lece of trial by jiry-You tell him il is all idle
embarrassing ceremony, which legislative dignity
OF Impotence could not brook. Nur,ured from hi.
youth in constitutional principles, snd animated by
The proud 81 r;t of freeman, he eyclaims &c
am Virsinian,'' and " without the unanimous
consent OF my peers, not TO be fourd guilty.
With more than proconsular arrogance you repel
his demands aud tell him s. swear or be dis
f,anchised forever" Where, then. he would ask
was the man who would say that the test oatl,
was constitutional!
4 Do you want other proof, of The demonstrations
aly OF the test oath! BY the Fill of II i.h's no
| man could be s compelled" to gire eridcnce
against hiniself" In open violation OF this car
dinaI principle of morals, and of cons itu,ional
right the oa.h seeks to procure conviction by
| an appeal to the oath OF the party himself You
| temp, him to perjury by the hope of honor ant,
! enolumeni For ii he swear falsely, his wishes
are consummaed and he obtains the Office lfhe
refuse 10 swear all, you punish him for the in
iegrty and virtue which you should applaud ant,
honour. This lazy, transcended in enorry the
wors, of the Inqusilion. ] speak not
.fsuraively, but historically and literally. That
tribunal, in its wors, days, did not condemn without
proof OF guilt 1t is thai, in lie absence o.
oher proof it sought evidence, your test oath
does, from the party suspected. But proof by hi:
confession indispensable TO his condemnation
If not voluntarily given it extorled by sg-
ony and torture. But, fthe unhappy wretch Iat
strength of muscle, and consistency of sou! TO en-
.t.,ro he Ortfr with nnfa
omitted, maneled indeed, but uncontiemnei for the
suspected heresy. Your test oath, indeed infici:
no bodily torture, disiocaies limb but il stretch
him the mental rack OF hope or fear, endea.
to lacera,e his soul and conscience by the in
durable wounds unconscious perjury, and if YOU,
victim has firmness to abide the trial and repcI
your temptation, you do what the inquisilion die
NOT; you dispense ui'h all proof, and punish with.
out the apology of an ex.or.iye confession OIL
his guilt.
He sail, he had heard it i.limaei, that the les
enquiry not Sc criminal prosecution' and
that, therefore, the securities of,the constitution
(Which applied only in such prosecations) were
not violated Wreiched, indeed, would be The
state of the country, when we become verba
critics, and seek TO justify violations OF first ant
sacred principles OF cons .'utional security by
such means When that time shall arrive it viii
Ice unimpor'ant what act il passed. The peopl.
must have become slaves before their agents car
yenture Isase their own will the sovei eign law
OF the land. But even that apology wanting
here. What criminal prosecution! He had
taken some pains ascertain the most correct
definition. 1t !" a proceeding By legal mea
slres'' TO ascertain whether an offence has been
committed, and to apply the punishment. TIC
prove by the test oath 10 ascertain and apply tn.
disqualification the Offender if an offence Ia.
been committed, critically and phologically
ga criminal prosecution" 1t does not cease "a
be criminal persecution, because il dispense.
with judges, witnesses and jurors Gould not the
legislature, with equal proprie'y, apply the same
principle 10 murder? And ii the mode OF inyes
tiga'ion ceases TO be criminal prosecution, the
Z moment you ge rid of these guards, then you ma
make an entire criminal code, and, by new DEGREES
4 enforce it by means of preor petty consta
| bic. If the law had left the application of tb.
disqualification to the courts and iures with all The
advantages and rights secured by the consiilu-
ton, except that ii authorised The Judge appl,
the test oath TO the prisoner al the trial, and hi.
4 refusal to take ii, to pronounce Judgment agans
him such law would surely be less objeciiona
bic than this. The weapon, though personal
would be welded by judges, and not by the hsnc
which was to suffer under it. Bat no judge in ,h,
Common wealth would be found to execute such ;
law, by the enforcement of the test oath. Do yor
ask the ressoo9 Simply because it would be un
constitutional, and the judge would respect tht
constitution rather thar your enactment.
suPpose the law had imposed forfeiture Of rea
end personal estate instead of disqualification, or
the sender or acceptor Of challenge, and had EN-
powered the escheater or sheriff, 10 enter upon snt
take possession of it, on the refusal TO take ;h,
OATH. The legislature undoubtedly bad right Il
impose that punishment well as Disqualification
And yet, when privileges ten thousand times NOR
valuable than property. capacity for Office, thu