Newspaper Page Text
$he gjmty gntdltymctf*
OPFICEi
THU nCHLENRHINK Bl'ILBINO,
r M t .Ido of Whitehall itreet, between Altbam, street
and the Rnllro.d crowing.
PUBLISHED DAILY AND WEEKLY BY
FARED IRWIN WHITAKER,
Proprietor.
ATLANTA^ GEORGIA.
[Thursday Morning, fob. 38, 1887.
Ltlnnta Atlvertlsements.
WM?TCI.iTTO!t,
Cfkjton, Adair A Puree.
CLAYTON k ADAIR,
m’l Commission merchants,
AND DEALERS IN
tOCERIES AND PRODUCE,
No. 18 Alabama Street,
ITLAXTA, GEORGIA,
f AVK lust received, And offer for *zle at low prices,
the following
FRESH ARRIVALS i
I barrels Flour,
I sacks Corn,
l sacks Virginia Salt,
t 60 barrels Sugar—various grades,
[ 60 bags Coffee.
barrels Golden Syrup,
—> barrels Molasses,
l J* half barrels Family Mackerel,
kits Family Mackerel,
j boxes Crackers—Soda, Buttor, Picnic and Ginger,
f) dozen Painted Buckets ■
K) dozen Brooms,
± 60 boxes Soap.
6 casks superior Canvassed Hams,
6 barrels choice Bourbon Whisky,
6 ono-eighth casks choice French Brandies.
CLAYTON A ADAIR,
Commission Merchants,
No. 18 Alabama Street.
COTTON YARNS.
i BALES COTTON.YARN8. For salo by
CLAYTON A ADAIR,
Commission Merchants,
No. 18 Alabama Street.
SCALES.
I assortment of SCALES from the Great Bend Com-
ala, said to be an improvemen
icturers’prices, freight added.
CLAYTON A ADAIR,
Commission Merchants,
No. 18 Alabama Street.
GUANO.
tJBLE PACIFIC GUANO, one of the very boat for-
livers for Vegetables, Fruits, Grain, and Cotton.
CLAYTON A ADAIR,
Commission Merchants,
No. 18 Alabama Street.
TOBACCO.
, BOXES CUBWING TOBACCO, of various
' brands.
I cases Smoking Tobacco, in X lb, 1 lb, and 6 lb
packages.
CLAYTON & ADAIR, *
Commission Merchants,
fl—8m No. 18 Alabama Street.
W. 8. CARROLL.
r LY & CARROLL,
IOLE8A.1LE GBOCER8,
ice and Commission Merchants,
BA VIS' FIRE-PROOF BUILDINO,
“ERROR CEASES TO BE DANGEROUS WHEN REASON IS LEFT FREE TO COMBAT IT.”—Jefferson.
VOL. XIII.
ATLANTA, GA., THURSDAY, FEBRUARY 28, 1867.
NO. 50.
I passed, eutiiled “An Act concerning tbe At
tainder of Thomas Fittzgaralde, Erie of Gildare.”
It attaiuls and convict, the Earl of high treason,
and deprives him ot his estate, title, etc. Bee. II
declares, "That alt such persons which be or
heretofore have been comforters, partakers, abet
tors, confederates, and adherents unto the said
Erie in his said false and traitorous acts and pur-
Atlnnta A dvertisomentw.
TAKE NOTICE!
IP YOU WANT
Street,
Atlanta, Georgia.
TO ARRIVE THIS WEEK:
|. thousand bushels WHITE and MIXED CORN,
50 bales Timothy Hay,
NOW IN STORE:
libs. Choice Clear Sido Bacon—hhds and tierces,
[ barrels Moss Pork,
| barrels Leal Lard,
| case Leaf Lard for family use,
I barrels Flour—Superfine and Family,
Ibarrols Sugar,
| bags Rio Coffee,
Ibarrols Now Orleans Syrup—Choice,
I boxes Candles,
I boxes Assorted Candy,
I bags Liverpool Balt.
ON CONSIGNMENT:
i Fine New Southern-Made Buggies,
ntlal and nice, which tho owner la anxious to
bll and eco them. fcb3
Iministrator’s Sale.
IV. HI. HILL, Auctioneer.
Virtue of an order from tho Court of Ordinary of
Pulton county, will be sold, on the first Tuesday in
; next, before the court houso door in said county,
city of Atlanta, within the legal hours of sale, tho
tng city property in Atlanta, to-wit:
City lot, lying on tho comer of Cone and Lucklc
, known as city lot 88, of lat*d lot 78, upon which
a good dwelling, now occupied by I)r. Bigger!
Louo city lot fronting on Decatur street 41 feel ,
Ding back 1(M feet, adjoining the old Masonic
hiding, on which there is a small red building,
beiug a portion of city lot No. 0, of land lot
[ one brick store houso on the corner of Whitehall
nter streets, now occupied by McBride A Domett,
g 81 feet on Whitehall street, and running back 100
ung part of city lot No. 4, of block No. o, of land
, four city lots fronting 36 feet, each, on Broad
one on the corner of Broad and Hunter, and the
(three north of said corner lot, running back 70 feet,
j part of city lot No. 4, of block 5. of land lot 77.
b. two city lots fronting on Mitchell street, between
all and Broad streets, 85 feet, each, on Mitchell
CORN, OATS, BACON FLOUR,
Lard, Sugar, Coffee,
OR ANYTHING IN THE
Prolace nl Grocery Line,
SEED TOUR ORDERS TO
LANGSTON, CRANE & HAMMOCK,
ALABAMA STREET.
E. STEADMAN.
J. R. BIMMONR.
STEADMAN k SIMONS,
GENERAL
COMMISSION MERCHANTS,
Marietta Street,
ATLANTA, GEORGIA.
HE NOW HAVE IN STORE 1
CORN,
FLOUR,
BACON,
LARD,
SALT,
COFFEE,
SUGAR,
MACKEREL,
CHEESE,
COTTON YARNS,
Ac. Ac. Ac.
Which wo are ofloring to the trado at
Lowest Wholesale JPrioes !
febS-c STEADMAN & SIMMONS.
R. & G. T. DODD,
WHOLESALE GROCERS,
Cornor of Whitehall and Mitchell Streete,
A TLANTA,
GEORGIA,
, two city lots fronting on I
tail and Broad streets, 25 ie«i, t
running back 1M feet, being k portion of city lot
, of block No. 9, of land lot No. 77.
o. one city lot on the corner of Forsyth street and
eh alley, containing 1* acres, more or less, known
I Henderson lot, being a portion of block 81, of land
,, about alx acres of land fronting on Baker, But*
Alhoun, and Oslln streets, being city lots Nos. 119,
nd 148, of land lot No. 61, and two acres of laud lot
iO, adjoining said city lot No. 148.
I tbe above described pieces or parcels of land lying
ting In the 14th district of originally nenry, now
and Is known as the property lormerly
o __3 estate of Michael Myers, deceased. Hold
I property of th“ estate of Catharine Myers, deceas-
f the purpose of distribution. Terms: Half cath,
alt twelve months, with interest.
.sons wishing to examine said property, or any por-
(thereof, before day of sale, will call on the uuder-
pd, or Captain Dennis S. Myers, who will giye de-
} Information. January 21.1867.
WM. K. VENABLE, Administrator,
a— td Printer’s feo $23
t7mT& R. C. CLARKE
ro Wo w In Store i
IQ KEGS NAILS,
860 palm Trace Chains,
40 doz BcovlTs Hoes,
60 dot S. W. Collins' Axes,
Guns, Rifles, Pistols,
Washing and Wringing Machines,
Hubs, Rims, and Spokes,
i.’arpentem’ Tools,
Locks, Hinges, and Screws,
Blacksmiths’ Tools, Ac.
t» above Goods we offer low for cash.
ALSO, AOXMTS FOR
rbanks' Platform and Counter Soales,
bleb we eell at ftnorr pricee, freight added.
T. if A R. C. CLARKE.
Corner Peach-Tree and Lli'- Street
[jIIAIILKH liOUHIEPDLD,
U ndertaker.
TANUFACTURER of Coffins, Dealer in Metalic Bu
rial Cases, Caskets, and Agent for Crane, Breed
{iso, Manufacturer of, and Dealer in Furniture,
factory, Luckle street, near Walton Bp^ng. Ware-
Iwb. Whitehall street, Scofield’s Building.
pOTICK.—Funerals will be attended to with elegant
•se, at lower rales than ever before offered In this
Jai.25—2m
NOW IN STORE,
Prolbssional Cards.
it. r. FAitnow.
O. F. SIMPSON.
FARROW & SIMPSON,
ATTOIINEYS AT LAW,
ATLANTA, GEORGIA.
Oitick—Corner Whitehall and Alabama Btreota, over
James’ Banking House, Entrance on Alabama street,
fubi»—at*
Dr. R. Q. STAGY
H AS REMOVED hie ofllco to Whitehall street, over
tbe storo of Talley, Brown & Co , where ho may
be found in the day.
Residence—On Forsyth street, in the rear of Judge
Ezzurd’s, where ho maybe found at night. feb8—3m
MILTON A. CANDLER.
HILL & CANDLER,
Attorneys at Law,
ATLANTA, GEORGIA.
ROBERT BAUCH,
ATTOBNEY AT LAW,
ig a
ofllco is completed in Markham's new buildings,
febl—8m
REMOVAL.
D R. R. C. WORD has removed his ofllce to a roo:
over Talley & Brown’s Store, on Whitehall stree
Residence, on Mitchell utrect, near M. & W. Dopot.
jan27—lm
«J OSHUA HILL,
(OF GEORGIA,)
Attorney and Counsellor at Law,
WASHINGTON, D. C.
P RACTICES In the Supromo Court of tho United
States, tho Court of 01011111*, and tho Courta of tho
District of Columbia.
Claims aiuI Department Business receive prompt atten
tion.
Office and Residence—No. 2011 Street, between 17th
and 18th Streets West.. JanlO—d*w3m
LAW CARD.
JAMES M. SMITH.
r. W, ALEXANDER.
SMITH & ALEXANDER.
Attorneys & Counsellors at Law,
COLUMBUS, GEORGIA,
. . Circuit, and in the counties below on tho Chatta
hoochee river: also, in the adjoining counties in Ala
bama, and In West Florida. Will attend to the presen
tation and collection of Claims against the Government
nave made satisfactory
at Washington City, where they
arrangements for that purpose.
FRESH GROUND CORN MEAL
EVERY WEEK.
W E hnvo consummated an arrangement by which wo
will receive about 300 bushels fresh ground Corn
Meal per week, of three qualities: two qualities of Bolt
ed, and one of Plain.
Also, CORN BRAN, which we offer to tbe trade.
Jan9-lm ORMB A FARRAR.
'BAGGING AND ROPE.
1000 YARDS BAGGING,
For sale by
Janfi—2w
50 COILS ROPE.
ORME & FARRAR.
CASH ADVANCES ON COTTON.
W E will mnko liberal Cash Advances on Cotton, to
shipped to
Wilson, Calloway A Co., New York.
JanO—2w ORMF. & FARRAR.
TO ARRIVE,
15000 BunIioIn Corn.
ORME & FARRAR.
cohn hi:al.
W E arc receiving dally, largo quantities of fresh
ground Bolted and rluiu Meal, from Mr. Thomas
ORME & FARRAR.
Hove now in store, and aro receiving
A Large and Select Stock of Groceries
CONSISTING, IN PAItT, OF
25000 LB8 CLEAR BAC0N 8IDES
16000 lbs Clear Bulk Sides,
10000 lbs Hams and Shoulders,
100 bags Prime Rio Coffee,
125 bbls Sugar—oil grades,
800 bbls Flour—all grades,
100 boxes Tobacco—all grades,
225 boxea Cheese—New York and
English Dairy,
100 boxes Assorted Candy,
125 packages Mackorei and White Fish,
75 packages Prime L<*af Lard,
76 boxea Candles,
40 bbls New Orleans Syrup,
' 25 bbls Baltimore Golden Syrup,
60 boxes Soap,
60 Jars P. and.G. Lorillard’s
Maccaboy Snuff,
60 bbls Crackors,
150 bags Shot—1, 2, 3, and B B B,
100 kegs Nails,
200 reams large and small Wrapping Paper.
126000 G. D. Caps,
25 boxes Sargent’s A No. 1 Whltto-
more Cards,
200 sacks Liverpool Salt,
100 sacks Virginia Salt.
—ALSO—
Rice, Starch, Indigo, Madder, Copperas,
Blacking, Wrapping Twine, Oysters,
Sardines, Raisins, Rope,
Water and Well Buckets, Ac, Ac.
To all of which we Invite the attention of Close Cash
Bayers.
ALL ORDERS PROMPTLY FILLED
A. t Lowest Cash Rates.
feblO—8m
Hill Center of Soda Water!
CREAM ACS'. & 1*01111.16!
Soda Wator l’or Everybody!
CtALOONS, Hotels, Restauraut 4 . and Private Families
iu the city supplied every day with fresh SODA
WATER; while to the city and country trade will be fur
nished, on easy terms, both SODA WATER and CREAM
ALE and PORTER from the celebrated Manufactories of
Grey, at Philadelphia, and Sumls, at Chicago; for both of
which tho underslgued is Agent fur tho State of Georgia.
T. AY. AYE ST,
Well known In Atlanta, will havo charge of tho business
at this point. Leave orders at tho
Bottling K*labllwlimeut, on Loyd Street,
Next door to Jones’ Livery Stable.
COX &
v e Now
HILL
In Stoi*ot
JQ BARRELS RYE WHISKY,
60 barrels Bourbon Whlaky,
60 barrels Robertson County Whisky,
60 barrels Rectiflad Whisky,
80 barrels Fe ich and Apple Brandy,
30 pkgs Cognac Brandy,
80 pkgs Holland Gin,
10 pkgs Jamaica Hum,
10 pkge New England Ram,
86 pkgs Port, Madeira, and Sherry Wince,
60 cases Cbampagno Wlne.,1
100 caaaa Wampoo and Drake’s Bitters,
100 cases assorted Liquors,
as cases X box Sardines,
100 case* 1 and 3 lb can Oystere.
All of which wo offer to the trade at very low price..
dec#-am COX * HILL.
H
NOTICE.
A VINO disposed of my Bottling Bustness and Ale
, Agency to Mr. John Ryan, I would respectfully so
licit for him tho patronage heretofore extended to me.
Respectfully, J. H. WALLACE.
Atlanta, Ua., December 18,1806.
H AVING purchased the above interests, and located
my Bottling Establishment and Ale Depot on Loyd
street, next door north of O. II. Jones’ Livery Stable,
where I will keep a supply of Porter, Ale, and boda Wa
ter in bottles. Also. Philadelphia Ale and Sands’ Chica
go Cream Ale and Porter, in barrels and half barrels, for
which orders will be received and promptly attended to.
Mr. T. W. Wist, au old citizen or Atlanta, will have an
iutcrest in, and couduct and manage the business as uiy
Agent, during my absence from the city.
1 am also Agent for the State of Georgia, for the sale of
Grey’s Philadelphia Ale, und Sand's Chicago Cream Ale.
Kuipcctlhlly, JUIINRYAN.
Address all orders to T. W. WEST, Agent, Key Box
3U7, Atlanta, Ua. JaniM-Sm
A Live Drug Store,
By BEDWINE & FOX,
Corner Whitehall and Alabama Streets,
ATLANTA, OEOROIA.
jan26—8m
Notice to Railroad Contractors.
S EALED PROPOSALS will be received at the office of
the Montgomery A Eufaula Railroad Company. In
the city of Montgomery, up to l o’clock. P. M., March 1,
1867, lor the Grading, Cross Tie , und Tr*ctrying be
tween the 16 and the 27 mile post* (from 75,000 to 100,000
cubic yards.) . , M -
Profiles and specifications can be seen at the office oi
tb e Comply. C . ANDERSON.
feb22—td C lef Engineer.
re, Fresh Drugs, Medicines & Dye-Stuff.
lean be had in any country. Also, Wilder’* Stomach
Iter*. RKDWINB A FOX,
Corner Whitehall and Alabama Street*.
Atlanta, Ua.
$75 REWARD.
H T ? fl L rnt^A^*^:^,Tni t h U| n ) ^oun l yTWO
MARK MULES each about nine ytars old. One, a
bruwo biy mule, with a few gray hair- inter free; ihe
0 th«r t dark bay male, with eaddle mark on the right
aide of her baca. The Mules are about 14 handa high,
th«recoveryoflboMule.,and $36
addmoJlfortho.rre.to! tbeitM,«_*“g2w>MBK-
jq B — Addrs.e Judge B. D. Smith, Atlanta, Ga.
faiiie—i3i*
" FLOORING.
S IX THOUSAND immD'-Hl Kiln-Dried
Flooring. Tongned and G'oovJd.
JauR—e
JOKG, IURDHE * CO,
WM. L. UENSLER,
PROFESSOR OF MUSIC,
ATLANTA, GEORGIA.
Orders may be left with II. Bratimuller, Whitehall
treet.
OPINION
OF TIIB
HONORABLE JOHN ERSKINE,
or TIM
UNITED STATES DISTRICT COURT,
SOUTHERN DISTRICT OF GEORGIA,
A.t Savannah, May Terra, 18116,
In the matter of the Oath to be taken by Attorneys
and Counselors of the National Courts, under
the act of Congress of January Hfh, 1805.
Ex parte, William Law, Petitioner.
Euskine, J.—William Law, Esq., produced iu
court satisfactory proof that in tbe year 1817, he
was, by the Circuit, and District Courts of the
United States, for the District of Georgia, duly
admitted to practice as an attorney, proctor, so
licitor, advocate, and counselor at the bar of said
courts respectively; that he has been, since the
year 1850 hitherto, attorney or proctor oi record
in tho case ot Fimgan et al. vs. The Ship Parlia
ment— a cause now dependiog on tho Admiralty
sido of this court; that he has taken the oath ot
amnesty; that upon the promulgation by tho
President of the United States of the proclama
tion of May 20,1865, he found himself within its
thirteenth exception; that he applied to the
President for pardon and amnesty under this pro
clamation ; and that ho received a grant of par
don and amnesty, and accepted the same, and
has tiled in the ofBco of the clerk of this court
au authenticated copy oi said acceptance.
Upon these proofs, Mr. Law asked to be allow
ed to appear and be hoard in behalf of his cli
ents in said cause, without being first required to
take and subscribe tho oath prescribed by the act
of Congress, approved January 24,1865. Tbe
petitioner was informed by the court that this
law of Congress was imperative, and could not
bo pretermitted. Thereupon ho submitted to the
court, that the statute was repugnant to tho Con
stitution of the United States, and requested per
mission to show cause against it. This was
granted, and during tho early part of this term
the caso was fully and ably argued by the peti
tioner, propria persona, by Ex-Gov. Joseph B.
Brown, of tbo Northern District, and Thomas E.
Lloyd, Esq., of Savannah. Tho reply on behalf
of the Government by Henry S. Fitch, Esq., Uni
ted Slates Attorney, to the arguments of these
learned counsel, was replete with originality and
legal scholarship.
Prefatory to entering upon the examination of
the various questions regularly discussed, so much
of the original act of Congress of July 2,1862,
and its supplement of January 24,1865, as is
thought essential to an easier comprehending of
the gravo and important inquiries now betoro
the court, may be cited. The original act is en
titled, “Au act to prescribe an oath of office, and
for other purposes.” It enacts that, “Hereafter
every person elected or appointed to any office of
honor or profit under tho Government of the
United States, cither in the civil, military, or naval
departments of tho public service, excepting the
President of the United States, shall, before en
tering upon the duties of such office, and before
being entitled to any of tho salary or other emol
uments thereof, take and subscribe tho following
oath or affirmation:
“I, A. B., do solemnly swear, (or affirm) that I
havo never voluntarily borne arms against tbe
United States since I bavo been a citizen thereof;
that 1 have voluntarily given no aid, countenance,
counsel, or encouragement to persons engaged
in armed hostility thereto; that I have neither
sought nor accepted, nor attempted to exorcise
the lunctions of auy office whatever, under any
authority or preteuded authority in hostility to
tho United States; that I have not yielded a vol
untary support to any pretended government,
authority, power, or constitution within the Uni
ted States, hostile or inimical thereto. And I do
further swear (or affirm) that, to the best of my
knowledge and ability, I will support and defend
the Constitution of the United States against all
enemies, foreign and domestic; that I will bear
true fnlth and ullegiunco to the same; that 1 take
this obligation freely, without any mental reser
vation or purpose of evasion, and that I will well
and faithfully discharge the duties of the office
ou which I am about to enter, so help me God.”
Ami the supplementary act provides: “ That
no person after the date of this net shall bo ad
mitted to the bar oi tho Supremo Court of the
United States, or at any time after the fourth of
March next, shall bo admitted to tho bar of any
Circuit or District Court of the United States, or
the Court of Claims, as an attorney or counselor
of such court, or shall bo allowed to’appear and
he heard in auy such court, by virtue ot any pre
vious admission, or any special power of attor
ney, unless he Bhall have first takeu and sub
scribed the oath prescribed, in ‘an act to pre
scribe un oath of office and for other purposes,
approved July 2,1802,’ according to the form
and in tho manner iu said act provided," etc.
Tfie point having been made, whether an at
torney, or counselor at law, as such, holds a
public office or place, or is to be regarded as a
mere officer of the court—and there being a di
versity of opinion among learned judges on this
point—it is proper that tho views of this court
should bo expressed. In Lord Coke’s time, and
prior thereto, an attorney—but not so a coun
selor—was, it seems, considered a public officer;
for he says: “ That in an action of debt by an
attorney for his fees, tho defendant shall not
wage bis law, because he is compellable to bo
his attorney." Co. Lilt. 205 a. Afterwards,
however, Lord Holt (1 Sul., 87) held, that h«
was not compellable to appear for any one, un
less he takes his fee, or backs tbe warrant; and
so tho law has continued in England lo this day.
In the following cases: In the matter of Wood,
Hopk. 6; Seymour v. Ellison,2 Cow., 18; Mer
ritt v. Lambert, 10 Paige, 852 ; Itiy v. Birdseye, 5
Denio, 019; and Watte v. Whittemore 23 Barb.
246, practitioners oi the law arc said to bo pub
lic officers; but in the first mentioned caso only
was tlie question up ior decision. In the Adairs
of Byrne v. Adm'rt of Stewart, 3 Dess., 450;
Leigh's cate, 1 Muinf., 458; In the matter of the
oaths to be taken by attorneys and counselors, 20
Johns., 492; Richardson v. Brooklyn City and
Newtown It. It., 22 How., P. It. 308; and Cohen
v. Wright, 22 Cal., 298, they are held not to bo
public officers. And it was remarked by Platt,
J., in 20 Johns., 493: “ As attorneys and coun
selors they perform no public duties on behalf of
the government; they execute no public trust.”
llaviug collated and well considered these
Stale authorities, I am of the opinion thut the
law is with the negative of tho question. Nor
do I think that Congress—and it is the intention
of the Naliouul Legislature, os found iu the stat
ute, that guides this court—considered them pub
lic officers. Iu article ouc, section six, cl. two of
the Constitution, it is declared, that “ no per
son holding any office under tho United Stutcs,
shall he a member of cither House during his
continuance in office." Has it ever beeu seri
ously questioned that practicing as an altoruey
or counselor in the Federal courts, is inconsis
tent wilii holding, at the same time, the office of
Senator or lteprescntative in Congress! Neith
er was there auy statutory prohibition to prac
ticing iu any ol the United States courts until
the passage of flic act of Congress, approved
Muich 3, 1863, and the inhibition is confined lo
the Court of Claims. 12 Slats, at Large, 705.—
See also, Amendment to Rule If of Supreme Court
United States, 2 Wall vii.
Two questions, each of importance in the in
vestigation of this case, spring from the preceding
conclusion: Whether this court, in admitting
Mr. Law to its bar, acted judicially, or ministe
rially? And whether, ii his admission was a
judicial act, it gave him a property in his protes-
sion or office of attorney and counselor ?
The constitution ordains that “the judicial power
of the United States shall be vested in oue Su
preme Court, and in such inferior courts as Con
gress may from time to time ordain and estab
lish.” Art. iii, sect. i. Accordingly, at the first
session ot Congress, an act was passed “ to es
tablish the judicial courts of the United States.”
The additional courts established by it urc tho
Circuit and District Courts; and notwithstand
ing tiiese courts are denominated inferior courts,
they are not so considered in the technical use oi
that term. 4 Dali., 11; 5 Cranch, 135; 8 Ifow.,
580. The District Courts of the United
States, under their own proper powers, are
courts of luw and admiralty. The distinc
tive grades in the legal profession which
prevail in England, and to a limited extent in
some of tho courts in this country, have no sub
stantial recognition in the Circuit or District
courts of tbo United States; in these the offices
JUST RECEIVED AND FOR SALE.
15 Barrels Pure Non-Explosive Coal Oil.
REDWINE A FOX.
Corner Whitehall and Alebama Street*, Atlanta, Ga.
iauK-Su
of attorney, proctor, advocate, and counselor are
combiued in one person. The 35th section of
the judiciary act ot 1789 declares “that in all
the courts of tho United States, the parties may
plead and manage their own causes personally,
or by the assistance of such coudscI or attorneys
at law, as by tbe rules of said courts respectively,
shall be permitted to manage and conduct causes
therein.”
Directly bearing upon tbe first of these ques
tions is the case of The Commonwealth ex rel.,
etc., of Brtekenridge v. The Judges of the Court
of Common Pleas of Cumberland County, 1 S. &
IL ‘ '
187. A motion was madu for a mandamus
to be directed to the judge# of that court, com
manding them to proceed to the examination of
the relator, and if found competent to admit him
to practice in that court, as an attorney, etc.
Tiloiisun, C. J., said: “ If it becomes a ques
tion whether tho rules have been complied with.
Ihe court must decide. Can this be a ministerial
act? or, rather, can anything be more decidedly
judicial? The right of Mr. Breckenridgo has
been judicially decided; and if he is left without
remedy by appeal, ho is but in the situation ol
many other persons who have important inter
ests decided in the Court of Common Pleas; for
many points of great importance are decided on
motion, in which neither appeal nor writ of
error lies.” And on p. 195, Yeates, J.,says: “in
the admission of an attorney tho court acts judi
cially, not ministerially.” The mandamus was
denied.
Tho case of McLaughlin v. The District Court,
5 W. & 8. 272, was a motion for a rule to show
cause why a mandamus should not issue to the
District Court, commanding it to restore the rela
tor. Rogers, J., announcing the opinion of the
court, says: “ It is ruled in The Commonwealth
ex rel., dee., v. The Judges of the Court of Com
mon Pleas, 1 8. & R. 187, that the admission of
an attorney by a Court of Common Pleas, is a
judicial and not a ministerial act, and for that
rpason not the subject of a mandamus. That
case is an authority directly adverse to the pre
sent application; in principle, there is no con-
ceivablo distinction between them. If the ad
mission of an attorney to the bar be a judicial
act, by parity of reasoning his dismission must
be judicial also.”
In the matter of the application of Henry Cooper,
8 Smith, 67, the first head note is in these word3 :
“ In the admission of attorneys and counselors,
the Supreme Court acts judicially. The func
tion is not of an executive character.” Seldon,
J., in delivering the opinion oi the court, refer
ring to ex parte Seeombe, 19 How., 18, and to
other cases, says: “ If tho removal or suspen
sion of an attornoy bo, as wag held in these cases,
a judicial act, it is difficult to see how tbe admis
sion of an attorney is any the less so; especially
when, as here, tho court in the act of admission
is required to pass, not only upon tho sufficiency of
the evidence of certain facts, but upon the con
stitutionality and validity of a statute, and thus
to exercise tho highest judicial functions ever
entrusted to a court”
The case of Seeombe was briefly as follows:
The Supreme Court of the Territory of Minnes
ota was empowered by a territorial statute to
remove any attorney for willful misconduct.
Under this law Mr. Seeombe was removed; and
the order for removal set forth the cause.—
He presented a petition to the Justices of the
Supreme Court of the United States, praying a
mandamus to tbe Supreme Court of tho Terri
tory, commanding it to vacate the order. The
^ was denied. And Chief Justice Taney,
ing the unanimous opinion of the court,
says: “Thu removal of the relator, therefore,
for tho cause above mentioned, was the act of
thexourt done in the exercise of a judicial dis
cretion, which tho law authorized and required it
to exercise.” And on page 15, he remarks:
"The court, it seems, were ot opinion that no
notice was necessary, and proceeded without it;
and whether tills decision was erroneous or not,
yet it was made in the exercise of judicial au
thority, where tho subject matter was witbin their
jurisdiction, and it cannot, therefore, bo revised
and annulled iu this form of proceeding." See
also ex parte Burr., 9 Wheat, 529.
The authorities, Irom which these quotations
aro taken, are in themselves sufficient and con
clusive to show, not only that the admission of
an uttorncy, or counselor, but likewise his sus
pension, or disbarment, is a judicial act or judg
ment. The admission of an attorney, or coun
selor, where no fraud has been practiced on the
court, gives him tho office for life. This privi
lege, franchise, or right to practico in tho court,
has annexed to it tho condition that his
character shall eontinuo fair, and that ho will
not abuse his office by criminal or immoral con
duct. As an attorney, or counselor, in my
judgment, does not hold a public office or place,
there is no forfeiture for nonuscr—for if be
choose to practice his profession, ho may do so;
if not, not; he may withdraw from the practice
and resume it at pleasure; ho may be raised to
tho bench, as was tho petitioner himself—and
whero, from 1829 to 1835, in our highest State
judicial tribunal, ho presided with great learning
and honor—and return to tho bar again. Vide,
in the matter of Dormenon, 1 Mar. 129. Carthow
478.
Tho second question is, whothor tho petitioner,
by virtue of his admission to tbe bar of
this court, has a property in his profession or
office? The case of The Admire of Byrne v. The
Admire of Stewart arose on a statute which in
hibited persons holding certain offices under the
State irom practicing in the courts. The chan-
celor, in his opinion, remarks: “But the objec
tion of most weight is, that this act, as it affects
the defendant, will deprive him of a right which
may fairly be considered a species of property.
It cannot be denied that a man’s trade or profes
sion is his property, and if any law should be
passed avowedly for the purpose of restraining
any member of tho bar, who is not a public
officer, from exercising his profession, I should
declare such law void." In 20 Johns. R. 493,
the court say, that attorneys and counselors
“exercise a privilege or franohise." And Ormond,
J., in tho case of Dorsey, supra, in speaking of
tlie right to practico law, asks: “Can it be seri
ously contended that it is not a valuable right,
and as deserving of protection as properly ?’ p
In tho matter of John Baxter, decided at the
.May Term, 1805, of tho Circuit of tlie United
States for the Eastern District of Tennessee,
Trigg, J., in au able opinion, construing the Act
ot Congress of January 24,1805, says: “For it
he,” (the attorney) “neglects or refuses to take
tho prescribed oath he is eflectually deprived of
his office and the fees and emoluments thereof,
us he could be by a forfeiture of the same upon a
regular trial and conviction by due process of
Uw, for the oftenses mentioned. These fees and
emoluments,” continues the judge, "are as much
tlie properly of the attorney as any choses in ac
tion can, in law, bo the property of any other
citizen; and, being property, the law in ques
tion, to the extent mentioned, punishes the at
torney by a forfeiture ol his property.” OriN-
ion ok tue Honorable Connally F. Trigg.—
Pumph. p. 10. Memphis, Tenn., 1865. This
case and Cohen v. Wright, aro the only reported
cases that I have seen, in which this question
came regularly before a court. In Cohen v.
Wright, the court, Crocker, J., delivering the
opinion—iu which Norton, J., specially concur
red—say : “The right to practice law is valua
ble to the possessor only. It cannot descend or
be inherited, bought or sold, conveyed or trans
ferred, can be divested and destroyed by mere
order of the court, is subject to forfeiture by
mere loss of moral character on tbe part of tbo
possessor, und cannot, therefore, in any proper
sense bo deemed ‘property,’ or amount to a ‘con
tract’ in the Constitutional meaning of those
terms.” But Hie court, in approaching this con
clusion, say: "If tlie right of the attorney to
practice law is property, within the clear intent
and meaning ol tlie constitution, there is much
force in the position that the statute, by depriv
ing him oi the right, without a judicial investi
gation, such as is usual in cases of that kind, vi
olates this provision. Still it is not so clear as
lo be beyond a doubt, for it can hardly be said
that he is ‘deprived, of anything when the law
leaves it open to him to resume his privileges at
any lime by taking tlie oatb, a failure to do which
is his own fault." Iu another part of this opin
ion this oath will be transcribed and referred to.
Comparing the ruling of the United State# Cir
cuit court, ou this point, with that of the Su
premo Court of California, it will be seen that
the views of these courta aro opposed; at least,
there is some diversity of opinion. Tho former
court shows that au illegal result follows, by rea
son of tho act of Congress depriving the attor
ney ot his office. In other words, if the attorney
will not, or cannot take the oath, the statute it
self deprives him of the fee3 and emoluments be
coming title to him while iu possession of his
office under the sanction of the court. The lat
ter court—if my interpretation is not erroneous
—holds that no unlawful consequence follows,
because Hie attorney has no property, in his of
fice, in the constitutional sense ot that term.—
That an attorney, or counselor has a property in
his fees and emoluments by the common, or stat
utory law, or by contract expressed or implied
with his client, and legal modes of recovering
the same, is well established. 1 Bac. Ab, Attor
ney (F.) 2 Gr. on Ev. esc. 139 : 14 Geo. 87.
The first division of the last clause of the fifth
article of the Amendment to the Constitution of
the United States, ord&ios that no person shall
“be deprived of life, liberty, or property without
due process of law." This declaration exhibit#
a summary of all the antecedent precautions
contained in this article, and it places property
in the same category with the more exalted bless
ings of life and liberty Where property is pos
sessed or owned by a person under existing laws,
or where he has secured to him, by judicial au
thority (as in the case of au attorney or counsel
or) the right or privilege to acquire and owu
property by iiis professional skill and industry
(supposing this right or privilego, of future ac
quisition and ownership is, under this provision
oi tho Constitution, property, and, therefore,
equally protected with property over which the
owner has prehensible power), then, ho cannot
bo deprived ol the property, nor tho right,
privilege, or franchise mentioned be extin
guished, by tho declaration of Congress per se;
and if lie has forfeited either, tho Tacts must bo
ascertained by duo process of law, before the
judicial tribunals of the country. Murray's Les
see et al. v. Hoboken Land and Improvement Com
pany, 18 How. 272.
Whether, when an attorney or counselor is, by
the court regularly licensed and admitted to prac
tice law, this bestows upon him a property in his
profession or office, is a question so iDterwoven
with nice distinctions, that it is far from being
easily resolved; but the present inclination of
my mind is that it is not property, in tho sense
and import of that word or term os usod in tbe
Constitution; still,it is a right, privilege, or spe
cies ot franchise under the immediate sanction
and protection of the court. I do not, however,
entertain the remotest doubt of the power of Con
gress, acting within the limits of its constitution
al authority, to prescribe by law who may be
attorneys or counselors of the National Courts,
their qualifications, modo of admission, suspen
sion and disbarment.
Seldon, J., in Wynehamer v. The People. 8
Ker., 483, gives the following definition of prop
erty : “ Property is the right of any person to
possess, use, enjoy and dispose of a thing. The
term, although frequently applied to the thing
itself, in strictness means only the rights in rela
tion to it, (Bouvier's Law Die.; 1 Bla. Com. 138;
Webster's Die)" And, indeed, alter a most care
ful examination of all the authorities within my
reach, I have failed to discover a definition of
property stripped of the attributes of enjoyment
and alienation. Grotius—Book 2, ch. 6, sec. 1,
says: The exclusive right of using and transfer
ring property follows as a natural consequence
from the perception and admission of tho right
itself.
The petitioner having brought into court a
chatter of free pardon and amnesty granted to
him by the President of tho United States, and
filed with tho clerk an authenticated copy of his
acceptance of the same, urged that this act of
Executive clemency, relieves him from being re
quired, before he can appear and be heard as an
attorney or counselor in thb court, to take and
subscribe the oath prescribed by the act of Jan
uary 24,1865, because, as he says, this pardon
and amnesty lias restored him to ail the rights
subject to forfeiture by reason of his having “vol
untarily participated iu the rebellion." The
Constitution (Art. ii, sec. ii, cl. 1), affirmatively
vests in the President of the United States, the
sole power to grant reprieves and pardons, except
in cases of impeachment. And the very nature
and necessity of such an authority in every gov
ernment, arises from the infirmities incident to
the administration of human justice.
In ex parte Wells, 18 How., 307, Mr. Justice
Wayne, in delivering tho opinion of the Su
preme Court of the United States, makes UBe of
the following language: "Without such a power
of clemency, to be exercised by some depart
ment or functionary of a government, it would
be most imperfect and deficient in its political
morality, and in the attributes of Deity, whoso
judgments aro always tempered with mercy.”
Mr. Speed, Attorney-General of the United
States, in his Opinion of May 1,1865, elucidates
iu a masterly manner, the Coustitutionul power
of tho President to grant pardon and amnesty.
And in defining these terms, ho says: “A par
don is a remission of guilt; an amnesty is an
act of oblivion or forgetfulness. They are acts
of sovereign mercy and grace, flowing from the
appropriate organ of tho Government. There
can be no pardon where there is no actual or
imputed guilt. The acceptance of a pardon is
the confessiou of guilt, or of the existence ot a
stale of flic's from which a judgment of guilt
would follow." In a subsequent part of tbe
Opinion he remarks : “Alter a pardon has been
accepted it becomes a valid act, and the person
receiving it is entitled to all its benefits.” After
wards he says: “Persons who have been con
stantly engaged in rebellion, should know dis
tinctly what they are to do, when and how they
are to do it, to tree themselves from punishment,
in whole or in part, or to ro-instato themselves as
before the rebellion.” In 12 Mod. R., 119, it is
held that “Where a crime is pardoned all the
eftects and consequences thereof aro also dis
charged.”
I will not venture to illustrate or expand these
citations, or to discuss this subject at length, but
will bring my remarke to a close in a very few
words. The language of the Act is general and
explicit; and although it applies to a single
order of persotis only, it is gratuitous to Bay that
it was the intention of Congress to limit the
oath to any particular individual or class of this
order; the plain words of the Act are, that it
shall comprehend every attorney or counselor
upon his admission to tho bar of a National
Court, or who had been admitted previous to tho
4th of March, 1865. Yet the effect of the stat
ute is, that while of force, neither pardon nor
amnesty avail the petitioner, so as to rnako him
a “new man.” 4 Bla. Com. 402.
Was this result—this impossibility—foreknown
to Congress ? Admit that this statute is of the
character contemplated by Sir. William Black-
stone. ' But where” says that author, "some
collateral matter urises out of the general words
and happens to he unreasonable, there the judges
are, iu decency, to conclude that this consc-
quenco was not foreseen by tho parliament, and
therefore, they are at liberty to expound the stat
ute by equity, and only quoad hoc disregard it.”
1 Com. 91. What is said by the Commentator
relates to the British constitution; but whether
such reason alono, for setting aside a statute, or
any portion of it, would obtain in this country,
is very questionable. See Iredell, J., in Calder
v. Bull, 3 Dali., 386; Cochran v. Van Surly, 20
Wend., 881; The City of Bridgeport v. The
Uousatonio Rail Road Company, 15 Conn. 476,
Parker v. Commonwealth, 6 Burr, 507. But vide
Boss' case, 2 Pick., 165; remarks of Parker,
C. J. Chancellor Kent, (1 Com., 448,) says:
“If there be no constitutional objections to a
statute, it is with us as absolute and uncontrolla
ble as laws flowing from the sovereign power
under any other lorm of government.” Here
we have a written Constitution, forming the
paramount and fundamental law of the nation,
wherein is designated the powers and duties oi
the National Legislature, as well as of tho other
departments of the government; therefore, it
must follow as a consequence, that none ol the
co ordinate branches cun infringe the power of
any of the others—each division—legislative,
executive, and judicial, must remain confined
witbin its own Constitutional limits.
It was ingeniously argued by one of the learned
counsel, ex-Gov. Joseph E. Brown, that this Act
imposes a penalty which cannot ho remitted,
and inflicts a punishment beyond tlie reach ot
Executive clemency. Whether this statute
really passes the Constitutional boundary, and is
subversive of the pardoning power ot the Presi
dent, is a question of so nice and delicate a na
ture, that tlie solution of it would demand the
most profound consideration; but, as tho case
before the court does not absolutely require this
question to be resolved, it will not be attempted.
See Story on the Constitution, sec. 1498.
On the part of tho petitioner it was contended
that the Act of January 24,1865—(in which the
oath of office of July 2 1862, may be, by rela
tion, considered as embodied)—is in the nature
of a bill of attainder.
Bills of attainder are statutes enacted by the
supreme legislative power, pro re ruda, inflicting
capital penalties, ex post facto, without convic
tion in the regular course of adminislraUon
through courts of justice.
But it has been said, that the person or persons,
to be affected must ho named in the bill, other
wise it is not a statute ot this character. Dr.
Wooddeson in his Vinerian Lectures, 13 Law,
Lib. 510, lends a general substantiation to this
position. He says: “It has been usual in times
of domestic rebellion to pass acts ot parliament
inflicting tlie penalties of attainder on those by
name, who had levied war against tho king, and
bad lied from justice, provided they should not
surrender by n day prefixed.” Acts oT attainder
were generally framed iu accordance with tlie
foregoing cxlruct, but not always so; for tin re
are in the statute books, both ot England and of
Ireland, many statutes of attainder wherein
whole classes of people, in hulk, were attainted,
adjudged and convicted ot higlt treason, without
beiug named or otherwise legally designated;
and—though it may be wholly useless to refer to
tbe fact—without beiug culled, arraigned, or
tried. But a distant allusion aloue to these hills
ot attainder, and which in several material re
specie, differ from those mentioned by Wooddb-
son, and other writers, is not sufficient to au un
derstanding of tho gruvo question under imme
diate examination ; therciore, so much of such
of them as may direct lo a legitimate, legal cou-
I elusion, may not inaptly, I think, be transcribed.
At a Parliament held at Westminster, the statute
1 of 26 Hen., TiiL, c 25,8 Stats, of the Realm.529.
judgment, and conviction against the said com
forters, partakers, abettors, confederates and ad
herents, shall be as strong and effectual in law
against them, and every of them, as though they,
and every of them, had bo (sic) specially, singu
larly and particularly named by their proper
names and surnames in this said act.” Sec. IV
enacts, that os well the said Earl, as other his
said comforters, abettors, eta, “shall hare and
suffer execution of death for the same according
ly.” Sec. VII., provides, that the attainder Is
not to be “hurtful or prejudicial," if they submit
by a pre-signified day to the king or bis lieuten
ant.
Some two years subsequent to the making of
4he preceding law, the 28 Hen., viii, c 18, Id.
694, was passed. This statute is entitled, “An
Act concerning the Attainder of Thomas Fittz
garalde, (son of the Earl attainted iu the lore-
going statute) and of his V Uncles.” Reciting
tbo 26 Hen., viii, c 25, the act declares that,
“The said Thomas, late Erie of Gyldare, by
whatsoever name or names he bo called; James
Fittzgaralde, Knight; John Fittzgaralde; Rich
ard [Fittzgaraldej; Olyver Fittzgaralde; and
Walter Fittzgaralde, be attainted, adjudged and
convicted ot high treason ;”**** and that
the said late Thomas shall lose his title, dignity
and estate of Earl of Gyldare. Section II, as in
the preceding act, attaints “all such persons
which bo or heretofore have been comfort
ers, abettors, partakers, confederates or adhe
rents unto the said Thomas Fittzgaralde, late
Erie,” or unto his said uncles, and every of them.
Section III. “And be it further enacted, by tne
authority aforesaid, that the same attainder,
judgment, and conviction against the said com
forters, abettors, partakers, confederates and ad
herents, shall be as strong and effectual in law
against them, and every of them, as though they
and every of them had been specially, singularly
and particularly named by their proper names
and surnames in [the] said act.” Section IV.
“And be it further enacted by the authority
aforesaid, that as well the said Thomas, late
Erie, James Fittzgaralde, Knight; John Fittz
garalde; Richard Fittzgaralde; Olyver Fittzgar
alde ; and Walter Fittzgaralde, now being in the
Tower of London, for their said treason, and
every of them, as the said comforters, abettors,
partakers, confederates, and adherents, and every
oi thorn, shall have and suffer execution of deatn
for the same accordingly,” * * * * and
shall forleit their estates, etc. “And that they,
and every of them, for their said false and trai
torous offenses, shall lose the bouefit, liberation,
and privilego of all sanctuaries." Shortly after
the passing oi this attainder, tbe youDg Kildare
and his five rebel uncles were hanged at Tyburn.
Herbert’s Lite and Reion of Henry the
Eighth. P. 491. Ed. of 1682.
In Bishop Eurnet's History of the Reforma
tion, 1—Part 2—248, ed. of 1825, is printed at
length, Parliamentary Roll, Act 60, anno regni
tricessimo eecundo, Hemy 8, and his statute en
acts, inter alia, that Thomas, late Earl of Essex,
“shall be and stand by authority of this present
parliament, attainted and convicted of heresy
and high treason, and shall be adjudged an
abominable and detestable traitor, and shall havo
and suffer tho paius of death.” Ho was behead
ed without more ado.
The 24th Eliz., ch. 1, Irish Stats, at Large, 801,
attainted und convicted James Eustace, late Vis
count Baltinglos, and his brothers, Edmund,
Thomas, Waiter, and Richard, of high treason;
and by sec. II., prescribed as follows: “That as
well tho said James, and all others the said of
fenders and persons before named, as such oth
ers who, by actual rebellion and other traitor
ous practices, havo committed like abominable
and detestable treason and rebellion, and havo
died and been slain in their said actual rebellion
and treasons, or otherwise been, by martial law,
executed for the same, and every of them, for
said abominable and detestable treasons, by them
and every ol them, most abominably and traitor
ously committed, perpetrated, and done against
your highness,” etc., “shall be, by authority ot
this present parliament, convicted and attainted
of high treason. And that as many of the said
offenders and persons before named, as be yet in
life, shall and may, at your highness’ will and
pleasure, suffer tlie pains of death as in cases ot
high treason,” etc. Here the living and tho dead
aliko wore attainted and convicted. Many other
acts might be cited in which deceased persons
wore attainted. Let one (and it is tho last of the
kind, I believe,) suffice: 13 Car. Ji e. 80, attainted
the remains of the great Lord Protector Crom
well, and others, who had sat iu judgment on
Charles the First.
The foregoing citations are sufficient to show
(among other matters pertinent to this subject)
that to constitute a statute of attainder, it was
not necessary to name the persons accused, nor
to call upon them to appear aud defend before
Judgment.
Other occasional acts of parliament of a kin
dred nature to bills of attainder—but which in
flict a punishment milder than death, known as
bills of pain and penalties—will be noticed. Trea
son itself has, in somo instances, been punished
by theso statutes, as in tho cases of Lord Mon-
son, Bir Arthur Huselrig, aud others, who bad
been mombers of the High Court of Justice. 12
Car., ii, c. 11, secs. 38 and 39. Tho 19 Car.,il., c.
10, adjudged tho Earl of Clarendon a bani: tied
man for llfo, if he did not return to Eng.and
within a certain period, and surrender hinia tlf
for trial. Tho 9 Geo. 1, c. 18, 6 Stats, at Large,
477, ordered Bishop Atterbury to depart the
realm on, or before, a fixed day; sentenced him
to perpetual exile, and made it felony in him io
return; and deprived him of all his offices, dig
nities, etc. This bill was passed, on what was,
at the timo, a bare supposition, that he was con
spiring to bring in the Pretender.
Ol the nature of bills of pains and penalties,
and also closely allied to more than one of the
acts ot attainder quoted, are those statutes which
despoiled certain portions of tho people, and in
one memorable instance a whole community, in
gross, of their civil rights, without denominating
by name, or other legal, speclul manner, the per
sons to be affected, or summoning them to appear
and defend. Tho 23 Geo., iii., c. 81, disfranchised
all the electors of Ciickdale below a certain yearly
rental. By the 1 and 2 Geo., iv., c. 47,8 Stats.
(U. K.) at Large, 358, theontire body of voters of
Grampound were deprived of their electoral
privileges.
In England a distinction is taken between
bills of attainder, and bills of pains and penalties;
but when carefully noted and compared they will
be found akin, and iu close fellowship; and the
following extract will prove the nearness of their
identity. While the bill to inflict painsand pen
alties upon John Plunkett, was pending before
tbe House of Lords, it was ordered by that
House, that the opinion of the Judges be asked,
“whether if John Plunkett shall, alter tho passing
of this bill, be indicted for tlie treasons of which
he stands charged in this bill, lie can plead.this
act in bar of such indictment ?" And the judges,
through the Chief Justice, answered: “That, if
the said bill should pass into a law, be may plead
the same in bar of such indictment." 16 State
TrialB, 885. Therefore, it would seem to follow,
that, if the act of Congress ot January 24, 1865,
or aoy part ol it, be in tbe nature of a bill of at
tainder, and as such would effect the petitioner
it cannot be deemed any the less so because hois
not named in it. And like reason would hold
good, if it be technically, or in the nature of a
bill of pains and penalties. Doer on the Con
stitutional Jurisprudence ot the United States,
Lect. xi. Mr. Justice Story says: “But in the
sense oi the Constitution, it seems, that bills of
attainder include hills of pains and penalties;
ior the Supreme Court have said, ‘A bill of at
tainder tnav affect the life of an individual, or
confiscate his property, or may do both.’ ” Story
on the Constitution, sec. 1,838, citing, Fletcher v.
Peek, 6 Cranch., 138, and 1 Kent, Lect. xix.
Whether the act ol January 24,1865, is in the
nature of a bill of attainder was a point in Judg
ment in tho case of John GW, Shorter, and other
attorneys, for leave to practice in the Circuit anid
District Courts of the United States, for the District
of Alabama, without first complying with the re
quirements of said statute. And Busteed, J., in
an opinion marked by precision and force, says:
’Does it not in fact disfranchise the class of tuen
known as lawyers, under the pain of not taking
tbe oath it prescribes? Is not this the logical
and nocessary consequence of their refusal?
Does it not disfranchise them when it requires
them to take the prescribed oatb, betore they can
exercise their vocation ? Is it not an assumption
by the legislature of judicial magistracy ? Is it
not ‘pronouncing upon the guilt ot the party
without any ot the common forms and guards of
trial?’” Decision of the Honorable Rich
ard Busteed. Mobile Register & Advertiser,
Dec. 17,1865.
Bestowing upon this particular question tbe ut
most care aud solicitude—aud with unfeigned re
gret of my inability to discuss it in a manner an
swerable to its importance—I caunnt regard llio
retrospective part of this oatli otherwise than as
a bill oi pains and penalties—possessing the
characteristic attributes of a bill of attainder, ex
cept tbe death penalty. In tbe arbitrary, tech
nical sense it mayjiot be so called; but when it
is so plainly observable that by its own inherent
force it effectuates the destruction of the rights
of a large order of persona, aud is substantially
and in effect a bill oi pains and penalties, I know
no other term in our language adequate to ex-
nress it By oneratLja nf »•» t**’- 1 * 11 — —m