The weekly North-Carolina standard. [volume] (Raleigh, N.C.) 186?-1869, 1868-11-25

Mr.. MOORE, of Carteret, said that if Mr..
Avery did not take any oath then he had
violated statute law OF North Carolina.
Mr.. LINDSEY said he was not one OF those
who looked upon Congress as an illegal
body, but at the same time he could not ac-
cept its laws as u part of the Constitution
Of the United States. 1t seemed to him
that the intention Of the law was that the
oath to support the Constitution of the
United States must have been taken to
bring any one under the ban. Mr.. Avery
had not been proved to have taken this
oath and had declared that he did not 1t
was very probable that he did not. He was
elected only two weeks before the State Sc
ceded; the state of feeling at that time was
such that no man would have been required
to take an oath to support the Constitution
of the United States. If he had not taken
that oath he was not banned and was emit
tied to his seat.
Mr.. LEeG would respectfully call the at
tention of the honorable gentleman from
Rockingham, (Mr. Lindsay,) to his oath of
Office, wherein he sWore to support the Con-
stitution and laws of the United States.
Those laws declared that the holding of an
office, whether an oath is subscribed to or
not, was sufficient to exclude him from the
holding of an Office under the United States
or the State of North Carolina. That law
was valid and must be obeyed.
Mr.. Rich thought it was well known that
he was always liberal in his views in regard
to these matters. But he could not agree
with the remarks of the Senators from Rowan
and Orange that the burden of proof rested
upon the Senate, and that Mr.. Avery was
entitled to his seat if he had not taken any
oath. He believed in the truth in the axiom
:" no man shall avail himself of his own
wrong" If Mr.. Avery did not take the oath,
he had disobeyed plain law. and was in no
condition to come here and claim seat on
that ground. He was sorry to be obliged
to state that he could not consider him en-
titled to a seat.
Mr.. ROBBINS said if it was principle of
law that the burden of proof never rested
upon the accused except by strong pre-
sumptive evidence. Was it the general pre-
sumption that Conservatives had no right to
come here? No, this was land of freemen
and the presumption was that Conservatives
had a right to come here, and when Mr.
Avery was denied his seat, proof must be
shown that he was not entitled to it. To
do this, it must be shown that he had taken
the oath, and was, therefore, banned by the
Howard Amendment. Even concedc that
this was judicial Office, and the Senate
must show that he took an oath to support
the Constitution of the United States If
the Senate voted that he was not entitled to
his seat, unless it showed the proof. that he
bo, fol- hat tlou ota hin, outi in
the dark. Mr.. Avery was willing to swear
that he did not take the oath. IF the Senate
refused to believe him on oath, it impeached
his veraeity and insIlted his constituents.
The presumption was, that as he was elected
but two weeks before the State seeded, that
he did not take any oath to support the
United States, as people then were more in
the humor of swearing out OF the United
States than in.
Mr.. JONES agreed with the Senator from
Rowan that 1t was necessary that the Senate
should establish its proof, and moved that
the matter be again referred to the commit
tee and they should be empowered to call
for persons and papers.
Mr. Cooke said that when he became a
member of the Senate he took an oath to
support the Constitution and laws of the
United States, and his action in all cases
should be in accordance with that oath. He
wished justice done to all without regard to
party, and would always vote according to
his convictions of right. The seat in ques-
tion was an original vocancy. The district
to which it belongs sends man clearly ban
ned, under the Howard Amendment and
he could not vote to give him seat for
which he was disqualified by law The of
fee of county solicitor was unqestionably a
judicial office, and this fact alone would
prevent the gentleman from being able to
take lin this body. He was in favor
of being liberal whenever they could do so
with propriety, but this was matter of
duty and sympathy could not be allowed as
it was the duty of Senators to abide by the
law.
Mr. BARROW hoped the motion of the Sen
ator from Wake would not prevail. He could
see no necessity for delay. If this Office was
not one banned by the Howard Amendment,
then the gentleman was eligible; if 1t was
one of those offices. then he was not eligible.
He accepted the excellent law quoted by the
Senator from Rowan regarding presumptive
evidence, but could not agree TO his appli-
cation of it: The presumption was that in
taking office, Mr. Avery also took the oath,
and it now rested upon him to prove that he
did not AS the records. of Burke county
had been destroyed by fire, and no docu-
mentary evidence could be obtained in that
manner. he could see no reason to again re-
fer the matter to the committee, but hoped
the Senate would decide the matter at once.
On motion of Mr.. MOORE of Carteret the
yeas and nays were ordered.
The motion to refer was lost by the fol-
lowing vote:
YEAs-Messrs. Barnes, Forkner Graham, Jones,
of Wake, Lindsay, Love, Melchor, Mclaughlin,
Pnrdic, Rich, Respass, Shotfner, Wynne and
Winstead-l4,
NAYs-Messrs. Barrow, Beasley, Belamy,
Burns, Blythe, Colgrove, Cook, Davis, Eaves,
Etheridge, Eppes, Hyman, Lassiter, Legg, Long
Moore of Carteret, Robbins, Smith, Stevens
Welker, White and Wilson,.
|, The motion to admit Mr.. Avery was lost
by the following vote: s.. 5d Uses
YEAs-Messrs. Barnes, Graham, Lindsay, Long
Love, Melchor, Mclaughlin, Purdie, kespass
Robbins, Winstcad and Wilson-12.
NAYs-Messrs. Barrow, Bellamy, Blythe, Burns
Colgrove, Cook. Davis, Eaves, Etheridge, Eppes
teret, Rich, Shoffner, Stevens, Welker, White
and Wynne-22 sit
The case of MIR. Oates was next taken UP
by the Senate. 5s. ,sst9
Mr. ROBBINS hoped the Senate would post
pone action on this case for the present, al
Mr.. Oates hoped to get his disabilities re
moved by Congress He therefore moved
that it be postponed until the 10th Of De
| cember. l. ~
Mr.. BARROW thought the interests of Nortl
Carolina required that these matters should
be disposed of as soon as possible, but il
there was any good reason for the postpone
ment, he was willing that it should b'
| granted.