Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1868-11-27
SENATE.
"WEDNESDAY, Nov. Is, 1868.
UNFINISHED BUSINESS,

WEDNESDAY, Nov. Is, 1868.
UNFINISHED BUSINESS.
The motion of Mr.. Respass to allow
Mr.. Avery, Senator elect from the 41st
District, to qualify and take his seat, was
considered.
Mr.. Barrow desired information in refer
ence to Mr.. Avery's eligibility.
Mr.. Long, from the committee, stated
that Mr. Avery had been before the COM
mittee, and they had learned from him
that he had held the Office of County Solici
tor before and during the war, but had
not taken any oath to support the Consti-
tuition of the United States, that he could
recollect.
Mr.. Barrow said that it was clear to him
that any person having held the Office of
Solicitor was compelled by law to take an
oath to support the Constitution of the
United States. The Senator does not re-
member whether he took the oath or not
but the presumption is that he did take
the oath, as the law required. There was
no doubt In his mind that the Office of
Solicitor was judicial Office, and it was
also the opinion of three of the Supreme
Court Judges. He had heard, with much
surprise, that Judge Brooks had decided to
the contrary, and had even gone SO far as
to decide that a magistrate was not q
Judicial officer It WAS clear to his mind
that the Senator was ineligible, and there
fore he should vote against the motion.
Mr.. Mclaughlin said it was equally clear
to his mind that the Office of County Solici-
tor was not a judicial Or executive Office of
the State, but simply ministerial and the
question whether Mr.. Avery did or did not
take an oath was matter of no moment.
Senators are compelled to construe the
laws as they understand them, and he did
not think much reliance should be placed
on flying rumors as to the opinion OF
Supreme Court Judges. When the Supreme
Court makes O decision it was time
enough to bring that matter up as evil
dence. II the Senator had been elected
by negroes, instead of a white constituency,
he would have been admitted at once.
The Chair called him to order, on the
ground that he was casting reflections upon
the motives of Senators.
MIR. Mclaughlin took his seat. remark
ing that if he could not speak what he
thought, he would say nothing.
Mr.. Graham said it was q simple ques-
ton and could be disposed of at once.
The decision of Judge Brooks Was that
a Magistrate was not judicial officer of
the State j.; then, can County Solicitor,
who is elected by the Magistrates Of the
county, be a judicial officer of the State ?
Certainly not. Neither is a member of the
Legislature. He thought this proceeding
rather strange one. This is a criminal
because it is part of the pun
shment of certain class of men, who took
part in the rebellion, and in all criminal or
capital cases the accused is certainly enti-
lied to hearing.
He held that the Office of Solicitor is
neither judicial nor executive Office, but
simply ministerial. The Howard Amend
nent was intended to reach the high Off
GERS of the government, such as Governor,
Judges, &C., and not County officers.
MIR. Robbins said that he had always
found the Senate disposed to act fairly in
matters Of this kind, and thought they
would do so again. He said there was only
one point which ought to settle this mat
ter, and that was : Did he take an oath to
support the Constitution of the United
States ? If he did not, he is eligible
There is case here in this Senate similar
"a Senator who had held the office of So
icitor, but said he did not take the oath,
md he was admitted. If you decide that
It is judicial Office, you must prove that
he took the oath. He is willing to swear
hat he did nat, and, if you do not admit
aim, you impeach his veracity and insult
ais constituents.
Mr.. Lindsay said that he was not one of
hose who looked upon Congress as an ille-
gal and unconstitutional body, but, on the
contrary, believed it to be legal and con-
'tltutional body; but he did not look upon
Congress as the Constitution of the United
States. It was clear, from the Howard
that it is taking the oath which
bans, and not simply holding the Office
IAe Senator Mr.. Avery, he had under
stood, was elected to the Office of Solicitor
only two weeks before the State seeded,
md it is not to be supposed that Seces-
'ion county would compel him to take an
path to support the Constitution of tho
United States ; and if he did not take the
path, he is not banned and should be adj
nitted to his seat.
Mr.. Jones, Of Wake, moved that the
whole matter be referred back to the Com
nittee, with the power to send for persons
md administer oaths.
Upon this motion, the yeas and nays
we're called, and it was lost by vote Of
yeas IA, nays %.
The question recurring on Mr.. Respass'
notion, it was lost by the following vote,
7iz:
AAuoO WIZ SOOCA III VIC "C1C
Messrs. Barnes, Graham, Lindsay, Long, Love,
dechor, Mclaughlin, Purdie, Respass. Robbins,
Vinstead and Wison-12.
Those who voted in the negative were
Messrs Barrow, Belamy, Burns, Blythe Col
grove, Cook, Davis, Eaves, Etheridge, Eppes,
o!ored. Forkner, LYMAN, c,lored, Lassiter,
re &, Moore, Of Carteret, Rich, Sheffner, smith,
stephens. Weiker, White and Wynne-22.
On motion of Mr. Robbins the action
n reference to Mr. Oates was postponed
Until the 10th of December, as there was
! probability of his disabilities being re-
moved.
Mr.. Rich moved reconsideration of the
'ote in reference to MIR. Avery, in order to
postpone any further action until the 10th
If December, 90 as to allow him an oppor-
unity to get his alleged disabilities re-
moved.
Mr.. Moore, of Carteret, moved to lay
hat motion on the table.
The Chair stated that the motion Of Mr..
Rich was unnecessary. as the action of the
Senate did not vacate the seat of Mr..
Avery. That would require q separate