Year: 1865

lEs The Test Oath.


| Gentlemerr who have been discussing
the question of the constitutionality o
| the Test Oath, seem to have confined
themselves almost exclusively to the
mere question of its legality, Or in an
other and better word, to its constitu
tionality.


There are two other important views
| to he presented in connection with this


matter Ajudge, who decides questlen


within the strict province of his judicial
jurisdiction, incurs no liability for dam
age OF wrong resulting from mere error
of judgment, but within what limits he
is liable for corruption arising from Dri
berry, fanaticism or favoritism, or for ne
glect of duty or other misconduct, is an
other question. But where in the dis
charge of official acts he exceeds his jn-
risdiction, and takes upon himself the
power to do an act beyond his jurisdic'
tion, he is responsible just as any private
individual is. In times like the present,
when passions are inhamed, and yet it is
necessary to appeal to reason before there
is an appeal to aught else- it is well to
refer to well-settled and authoritative
works as being free from passion and as
speaking the words of reason and of the
law. Broom, in his Commentary on the
Common Law, Page l05, says: Where,
however, the particular act complained
of was done by the judge when not act
ing judicially or in respect Of a matter moi
,cithin his jurisdiction, the principle just
stated does not apply. Thus, in Calder


u.s. Halkett we find it broadly laid down
that English judges, when they act
wholly without jurisdiction, whether
they may suppose they had it or mol.
have no privilege" If this is law
where there is no constitution prescrib-
bing the jurisdiction, and where the
boundaries of jurisdiction are therefore
uncertain, how much more is the princi-
pie applicable here where the coDstitu-
tion prescribes the jurisdiction of officers
on one side and the rights of citizens on
the other.


Every citizen having the constitution
al right to vote, and debarred from his
light, has constitutional right of action
against each and every officer who SD
debarrs him. Each one in every tow1-
ship may sue


But there is another question ana of
greater range and Importance. | main
tain that in virtue of the third section of
the first article of tile constitution of this
State, "The power of government resides
in all the citizens Of the State and can be
rightfully exercised only in accordance
with their will and appointment" and
that therefore, "all the citizens" have
right to vote. maintain further, that
by the seventh section of same article,
Every citizen shall be entitled to equal
representation in the government" and
that he is not represented unless he is
permitted to vote under the constitution
at his own free choice | maintain fur
ther and beyond all peradventure. that
any amendment proposed to the consti
tuition and submitted to the election of
the people (COn. Art. XII, Sec. p may be
rejected by them but cannot be adopted,
if at the time the election is held there
is an act of the legislature directing the
officers of election to exclude class Of
citizens from voting who by the consti-
tuition have right to vote. The courts,
the Supreme Court, cannot undertake to
say how many have been illegally, un-
lawfully prevented from voting by such
a law, and if the exclusion, the illegal
disfranchisement had not been made by
the officers under the unlawful law per-
adventure the amendment would not
have been adopted. These men are hard
to please in the matter of constitutions.
They set aside the constitution of the
United States; they set aside the con.
sttutioh of Virginia; they then Etook
upon themselves to make a constitu-
tion for West Virginia and now before
their constitution is three years old
they must prop it up and narrow its ac-
tion and keep themselves in power by
fraud and wsrse-if worse can be. c.


P. S. The opinion of the Attorney
General, however groundless it may be
of argument and the command OF the
Governor, however arbitrary and unlaw-
full he may know it to be, will only have
the effect of inducing the court of last
resort to come to the conclusion that If
persons had been allowed to vote, who
have the right to vote underi the consti-
tuition, such an amendment would not
have been adopted.


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