The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1865-09-23
The Oath Law.
Letter From AttOrney-(seneraI HAIL.
The whole Question Carefully EIRb-
grated and Explained. C5lls. Z

1 y
being posted in your county, which
after much other matter, closes with
the following:
ANY person offering TO vote, If re.
qured by any voter of the township
lno other person has n right to require
it'll shall take an outh to support the
constitution of the United States and
the constitution of this State, ISc.' .f'l
"The above recited oaths are the only
lawful oaths to be required at the polls.
and are provided for by the C.onstitu-
ton and tho act of Sd November, 1868,
The act of 25th Feb'y, 1865, and the act
requiring similar ontlI of officers. are
clcnrly unconstitutional from the be-
ginning, and the officers of election are
!VaI1Ied not to reject any votes merely
because the voters have not taken. or
Will not take this unconstitutional oath :
as the supervisor and inspectors render
Themselves liable to an action for litt,ta-
9eS for rejecting Sltch CoteS."
And you ask, what is YOUR duty MS
one of the officers of election for your
lcounty-whether you are not bound 10
comply with and observe the acts OF
NOV. 1T, 1868, and Feb. 25th, 1863, in
conducting the elections; or whether
would pronounce said acts unconsti-
tuttonal, as alleged in the poster?
l send you the Wheeling INTEILI-
aENCER, of the 18th, containing my
opinion, that said acts are presumed 10
be constitutional, and must he observ-
ed and enforced as the law. llntiI od-
Judged Unconstitutional nnIl declared
void by the Courts, to which nre dele
gated the rights and authorize 10 infer
pret and expound the loS,-. o,,J IL.
that said acts are constitntinroI
In my printed Spinion' sent Won
Unye nv attention, tI1Iore 'D,,,t;.,,S!,u ~,
to the uuestion of the constit,,t;5.,,aii;S,!, y, y!
ofthe Acts referred to; and MS 10 the inaSI !
presumption Of their constitntioEai ~ r.. 80
contented myself with n tleciorotion ~
the principle, and some general reasons
why the PRESUMPTION necessoriiI, az ist :.
supposing there could Ina no SonIt oI
difference of-opinion. nj lnost nmon,,
legal men, mt this dny. ms to the ,,,is,
md Drincinle nsSar+n6 NJ, I,ottS,. MI.
tration of the necessitv of tLe r,,la ['.,,,
exist, than the circumstances wbich
hnye led Won 10 Iyrife mo An ,,',I'''i,
sioitS DI1cyrT is DosteI in Jifo,a,,. 10Y -, X,
of Your, and perhnps Other con,5tias. q
containing the dick,,jn thot tboea ios,i,l
lative Acts (prescribinO the vot"rS, !s,,,l
officers onthsl nre uncOHstit titutiS,,oi o,,,i
YOU, and MI other Officers of eIactio,,S
are earned to so regard and front tLen
and that ifyou do not, yoI NAV ernarf
actions against Won for dom0S,as tI. !,
and this Is expected to govern md t.o%, T''
troll your action. to the UifeF IlisraFro I'd
of the combined Judgment and yviS5onl
of the Legisiature OF your State. w -a"O'. u
1t seems to me, il is too late in tho
history OF the jurisprudence of our
country lor II TO be necessary to make
aa,ILgt an aLPg1meihL, i, or produce authorities to
S1onI. .' VIM nns' 1nlnk very justly,
asI5 ~ tho ;l.I,t " ne eNploded her
s,,y1 VI tLS iiSnI vi PLIUdte hteEpretdtt09l
Sti3 Iy.e"t.oM at pleasure Of our
SohsIitutlon ana LAWS" But desiring
20 remove any oiInculty or douhtwhich
YOU OF others similarly situated, may
il nuNe upon the SUBJECT would, to what
Is contained IN my printed opinion of
the l5tht add, that the authorities, to
my N, nnlna, @ nre @coneiusiye on the subject.
Ihere IS little In the Virginia author
itles ~ OF occasions bearing upon the point
III queStIon. IN tne case OF CustiS as.
1Ltle! Lam! Su huLllofu, OIS, Lane, us Sheriff
OF OF falFiax county, was sued by Custis,
IS2l I0r teluslHS 10 receive his vote. CThe
lSneE!n lS1nesEL!n uHueI ,IT, the law, then, conducted
eIecuons') lne Court below dismissed
the action, and Custis appealed. In the
Court OF Appeals, Writ counsel for
Lane, IN ms argument, said: "But If
the appellant iCdS entitled to vote he is
not entltied to an action against the
Sher1tt, Who obeyed the law, and there
lore Is not responslDle. He is not TO
pe cnLIeu upon 10 say whether tile law
OIL lSOS Is constitutional or not. If such
q q, sult s as TINS could be maintained, the
SheflH hlght pe liable to ten thousand
actions, &c.
Lee, counsel for Custis. REPLIED. WIn
this case. however Il ia not his ,iutI,
neither has he the onthoritJ to iinSC,o ~
the law or the Constitutio2 No ); mt
maintained, that twas his duty 10 rec.
ord the rejected yOtar's name in tho hacl.
Of the nOiI hook os, 1,,.os,c,.iIloiS IT,
statute. &c. The Court nF AnneoIS s,iS-
tanned the Court below. without decid-
inu, unnn tha nuestion ,,hoI,o n ,.rs,,,,,S
Nor IA fbe question eci,Ied Nv tho g.oi, =;
in the case of Knniner I,S F1VIsiHs
Virginia Cases. 30. or directly raised in
the case. one OF the Judnres in his
opinion in that cases suys: 7sI will not.
! in an extra udicinl manner. assume the
right TO NEGATIVE a law for this would
| be as (ianperons. ns the eSampIe heFora
us; but il by any legal mems. Il hive
| Jurisdiction of a cause. in which r. Is
| made n question how far the law lSe n
violation of the CONSTITUTION. and there.
! fore. of no utilization. I shall not shtSii,I.
from n comSorfs0,1 or tho tue ",'5i 80
nounce senfencelSs nv n'inS' trl'I ,1,s,i pr ~
ceiye conyiction." Tie Stata anfbori.
/ ties upon this question of. tIie tI.Isht NJ
private intarnret atinn and tr7,ctioy
/ are few and TereIv incidantnj 'ooS n
lno SINGLE insianc y,,,,yra nj ~.
! the uaII1o INT tIo TI,,it1
ties IvIint nnTIIy wifi, a~,,'oi fS,.t.s ~
/ the state copsst SStt,,t;oI ed5 ioSS,s y, =
nnmeTnns J;re't a,,I no,,n,Srrat oI,Si tawS' ''rt
H. At an earI1 fIav in in rng. I9ittorTy +l,
I were those who maintained lint tbs
I ConstitntIoD Of the Tfn;tsiS ~
made and odoDteJ Sv tbn Sl9 s,aI s. VA VA
j ACTING in their infIsnanJoy,+ .t.,so..a;l
capacltvI as sncI anI that ~ 49, ,,
rrao - gy1r,,,,,. - - :, ~, w