The weekly North-Carolina standard. [volume] (Raleigh, N.C.) 186?-1869, 1868-11-25
conoernine the evidence and statements OBJ

Hlf. LONG Sldteu tudb MI. n sSiy hoeai oose.
ted to the committee that, although he had
been County Solicitor before the war, he had
not taken the oath to support the constitu-
ton of the United States. and that he (Mr.
Avery) did not consider himself banned un-
der the Howard amendment. The commit,
tee was not sure of the precise value of the
Office under tho Howard amendment and
had referred it back to the Senate without
action. 99 ets
3 Mr.. BARROW understood that Mr.. Avery
had been County Solicitor before and du-
ring the war, and maintained that this alone
was sufficient to bar him under the opera
tion OF the Howard Amendment. He hoped
the Senate would pardon him if be reviewed
this matter somewhat at length, but this was
a matter of great importance. 1t might
raise the very important legal question In
the future, whether, if the Senate of the
State was at this time composed of members
banned by the 14th amendment, it was
legal and constitutional body, and its actions
binding The question was whether or no
the Legislature of North Carolina could
nullify the Constitution of the United States.
II we are to obey tue laws and the Con-
stitution of the United States we must obey
them to the letter.
The point upon which the whole matter
rested was whether the Office of County So
licitor came within the pale of the 14th
Amendment The laws of North Carolina
provided that the County Solicitor should
take prescribed oath. This oath required
the officer taking it to swear that he would
support the Constitution of the United
States, and to have entered upon his office
then, Mr.. Avery must have sworn to support
the Constitution of the United States. There
could be no doubt upon that point. Mr..
Avery now applied TO be admitted to seat
in this Senate on the ground that the Office of
County Solicitor did not come under the ban
of the Howard Amendment To his mird
Mr.. Avery was wrong, and the office OF
County Solicitor clearly came under the
ban of the Amendment. Congress itself
had declared that offices of this nature did
come under the operation of that article.
He was authorized to state that four Judges
of this State also held the same opinion.
The supplementary act July 10, 1857,
says: 1.-THE true intent and mean
ing of the oath prescribed in said
supplementary act is (amOng other
thing that no person who has been mem.
Der of the Legislature of any State, or who
has held any executive or judicial Office in
any State, whether he has taken an oath to
support the Constitution of the United
States or no is entitled to reg
lister or vote; and the words executive or
judicial office in any State,' in said oath
mentioned, shall be construed to include all
civil offices created by law for the admins
tration of any general law OF State, or for
the administration of justice" This was
the opinion of two thirds of Congress when
they passed this law over the veto of the
President, and ought to be good authority
in the Senate of North Carolina. Our Dem
ocratic friends had, he believed, come to the
conclusion to let these things take their
course, and the people of the United States
had declared the reconstruction laws valid.
| These laws declared as plainly as words
could that cases like these come under the
meaning of the 18th Amendment. Two
| Judges of the Supreme Court had expressed
the same opinion. Mr.. Avery claimed that
he did hot remember whether or not he had
taken the oath to support the Constitution
Of the United States. He (NIr Barrow con-
sdered the evidence conclusive that he did
take it. The law of North Carolina
TcQulfcu Hill W NO 81 UcIOTc. cutcT-
ing upon the discharge of his Office. The
county of Burke had never and could never
nulify that law, and if Mr. Avery took the
! Office of County Solicitor he must also have
taken the oath prescribed by that law, and
unless he could show that he did not, he
could not vote to admit him to seat In this
| Senate.
Mr. MCLAUGHLIN did not consider that
the Office of County Solicitor came within
| the meaning of the 14th amendment. 1t
was not judicial but ministerial office.
| Whether Mr. Avery did or did not take an
oath to support the constitution of the Uni.
ted States did not matter. He (McLaughlin)
did not go to Congress to construe the Con-
stitution for him; whenever the Supreme
Court decided that the Howard amendment
did ban such offices he would submit,
and not until then. Here Mr. Mclaughlin
| INDUCED in remarks that was ruled out of
order by the President as rejecting on the
actions and motions of the Senate. He per-
sisted, and was again called to order, when
he declined to proceed further if not allowed
to say what he choose
Mr. GRAHAM thought this very simple
case to decide, as it depended entirely
whether the office of County Solicitor was a
judicial or executive Office or not. A judge
of this State had decided that it was not a
| judicial Office, but was a magisterial Office.
A solicitor got his appointment from a
magistrate. and certainly could not be an
executive officer. The county solicitor has
no judicial or executive powers, and must be
considered as merely ministerial officer.
He thought it singular, when the credentials
| were all right, that the burden of proof
should be made to rest upon Mr.. Avery. In
criminal cases the burden of proof always
| rested upon the prosecution. This was a
criminal case, and the burden of proof must
rest upon the Senate AS to the Howard
| Amendment, it was not aimed at petty off
GERS, but at men who had held high positions.
Mr. ROBBINS had always found the Senate
disposed to act fairly. and he thought it
would act in the same manner in this case.
He agreed with the Senator from Orange,
that the burden of proof should rest upon
the Senate 1t was not the holding of office
but taking the oath to support the Consti.
tuition that disqualities under the Howard
Amendment. Ii Mr.. Avery had not takel,
the oath, he could not be banned. A similar
case had occurred last session, and the con.
testant had been admitted to his seat, be
cause he had not taken an oath to supper,
the Constitution of the United States, but a
simple oath of Office. He considered thai
the burden of proof in this case should rest
upon the Senate.
Mr.. BLYTHE said the case depended en-
tirely whether the Office of County Solicitor
was Judicial or not. -
Mr.. ROBBINS did not see how gentlemen
could arrive at the conclusion that Mr.. Avery
was banned even if the office lie had hef
should be decided judicial office, as h,
| did not take any oath to sunnnrt the Con