Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1866-03-23
0Qlo Statesman,
SPEECH OF
HON. w. Il. FINCK,
OFOHIO,
In the House of Representatives;
March 3;1s06. on the Repeal of the
Test Oath, and Policy to be
Pursued Toward The PeO-
pie OF the south. ..rf. f.rt.E

| Pursued TOWard the P0O-
pie of the south. .tf .rl-.
The House, as in committee Of the Whole
on the State of the Union, having under
consideration the Presidents annual mes
sage
| Mr.. SPEAKER :-Having some weeks since
introduced into this House bill which has
| for its purpose to prescribe the oath of Of
| flee, so as to make 1t conform to the re-
quirements OF the Constitution of the
| United States, and to repeal the act of
July 2, 1882, commonly known as the test
oath, desire to submit few considerations
| to the House why, in my judgment, the act
ofJuly 2, 1862, should be repealed.
1t is as follows:
81, b, do solemuly swear (or affirm that have
| never voluntarily borne arms against the United
States since have been citizen thereof that Ihave
voluntarily given aid, cOuntenance. counsel or
encouragement to persons engaged in armed hostili
ty thereto; that have never sought accepted,
| attempted to exercise the functions of any Office
whatever under any authorityOr pretended authOri
ty N hostility to the United States; that have not
| yielded voluntary support to any pretended Gov
| eminent, authority, power or Constitution within
the United States, hostile or inimica thereto. And
do further swear (?r affirm that, to the best Of my
knowledge and abiity, willsupp0rt and defend the
Constitution of the United States against all enemies
foreign and domestic that will bear true faith and
freely, without any mental reservation or purpose
of evasion and that will we'll and faithfully dis
charge the duties of the Office on which am about
to enter" &c.
Now, Mr.. Speaker, it seems to me that
this oath, at least 80 far as 1t relates to Sena-
tors and Representatives in Congress, is un-
constitutional.
Section two, article one, of the Constitu-
ton declares:
"No person shall be a Representative who shall
not have attained the age of twenty-five wears, and
been seven years citizen Of the United States and
State in which he shall be chosen"
And in relation to Senators, it is provided
that
"No person shall be Senator who shall not have
attained tho Of thirty years and been nine years
citizen Of the United States. and who shall not,
when elected. be an inhabitant of that State fol.
which he shall be chosen"
Article six provides that
"The Senators and Representatives befO men,
toned, and the members Of the several State Legis
latures, 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 this Con-
stltutlOn."
Justice Story, in his Commentaries on the
Constitution, speaking of the House of
Representatives, section 64, says: ...
"It would seem but fair reasoning upon the plain
est principles OF interpretation that when the Con
stitution established certain qualifications neces
sary for oce 1t meant tD e5ctude all others, From
the very nature of such provision the affirmation
Of these qualifications would seem to imply MEGA
TIVE OF ALI OTHERS"
Mr.. Madison, in the Federalst, comment
ing on the same subject, says:
"The qualifications of the elected being less care
fully and properly defined by the State Constitutions,
and being at the same time more susceptible of uni
formiy have been very properly considered and reg
uLdted 6y tie Convention. A Representative Of the
United states must be of the age of twenty-five
mn haU hnan a aoiH nc IL
United States must at the time of his election be
inhabitant Of the State he is to represent, and
under the uniied States. Uaer esS rsasoSSGls @ S4i
Limitations the door of this part of the Federal Gov
ernment is open t., merit Of every description,
and without regard to poverty wealth, or to any
particular profession or religious faith -FtderdLst,
| No. %. Tt...... r..'
But Mr.. Speaker, if Congress had author
ity TO prescribe this test oath of 1852 it has
| the power to add other and different quail
| tications for Senators and Representatives
| than those provided in the Constitution, and
| thus change the organic law by legislative
enactment; and we have hardly advanced
far enough yet for such claim of power as
that.
The first act of the First Congress was to
prescribe the oath of office, and which was
as follows: %. ....'
That the oath or affirmation required by the sixth
article OF the Constitution of the United States shall
be administered in the following FORM TO wit: l. b.
| do s0lemnly swear or affirm (as the case may bel
that will support tho Constitution of the United
States"
Edo not pretend to say that the Constitu-
tion will require the oath to be in these
precise words. Congress may very proper
ly require the party to swear that he will
faithfully discharge the duties of the office
on which he is about to enter, but do say
that the oath provided for in the Constitu-
ton cannot be so substantially and materially
changed as to operate to add NEW and OTHER
qualifications for holding the office than
those provided for in the instrument itself
If it can be, and the taking of such oath
required as an essential prerequisite to the
exercise of the office, then, indeed, Con-
gress can most effectually defeat the pur-
poses of the Constitution and the rights of
the people. ''i' 'W
Sir, the RIGHT to hold a seat on this floor
is defined and provided for under the Con-
stitution, and does not depend so much
upon the determination of this House, as 1t
does upon the legal voters of the proper
districts, and the qualifications clearly de- .
fined by the Constitution. But the eXclu-
sive right to judge "of the elections, re-
turns, and qualifications of its own mem
bers," has been expressly conferred upon
and to the country if it should neglect the
fair and constitutional exercise of this high
and necessary power in every case where
it is called upon to act. 1t would, however,
be most wicked and monstrous perversion
of this power should a party majority ever
be found so corrupt as TO use it for the pur-
pose of maintaining its ascendency, by de-
priving the people of any of the districts
in the Union from being represented on
this floor, through members constitution
ally elected and possessing the requisite
qualifications.
Sir, considering the present condition of
affairs, do not believe the people of the
South will send men here who would be
wanting In fidelity to the Constitution.
1t will be their interest to send only such
Representatives as are determined to sup
port and defend the Constitution and pre-
serve the Union. Jai'~ .rWl3 a3510
, These people will never again attempt to
break up the Union. Their interest and
prosperity in the future are only to be ad-
vanced by maintaining the Constitution 4
and the Union against all those who would
seek their overthrow. The danger of the
hour is not now secession |; that has been
met and overcome, but it is danger In a
different direction. 1t is, sir, the danger of
the centr0IizdtioH Of power in the Federal
Government. Boa 3ig .sr 1870 asif3f
. Certainly, sir, no man who is not fixed
and determined in his purpose to support |
and defend the Constitution and maintain
the Union ought to be sent here !; and I
trust no man who is not thus sincere and
patriotic in his purposes, whether he comes
from the North or the South, win ever oc-
. IL. Al. IN. i