Newspaper Page Text
VOL. 2-NO. 104.
SAVANNAH, GEORGIA, FRIDAY, MAY 11 * 1866.
PRICE, f CENTS.
*»*
Dailv News and Herald,
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jOB PRINTING,
_ . t 5!T ] P , neatly and promptly done.
LAWYERS’ TEST OATH.
oi iie»t» of Judge Law and Ex-Gov.
Jus. Brown, in tha U. S.
District Court.
May it Please Tour Honor:
I am well aware of the great importance of the ques
tion now under consideration. He who denies the
validity of a Bolemn act of Congress on account of Its
unconstitutionality, should do .so with deference
and respect for the department of the Government by
which it is enaeted, as well as for the judicial tribunal
which is asked to declare it null and void. I trust I
approach thia question in a proper spirit, and with
proper motives. In what I have to say I state in. ad
vance that it is not my intention to reflect in the
■lightest degree upon the conduct or to question the
motives of any officer of the Government. After the
scenes of anarchy and confusion through which we
have passed, I feel much gratified to see military rule
once more give place to citil, and to see the courts
once more thrown open for the redress of grievances
and the general administration of justice. I trust
tbfey may never again be compelled to give place to
military tribunals or military rule. Of the peace and
quiet which is being restored to the country, I would
say as the great English Commentator says of his gov
ernment, Esto perpetual In the discussion of this
question I am satisfied that reason and authority are
more in demand than declamation or even eloquence.
If I possessed the latter, which I do not claim, this Is
not the proper occasion for its display. I will, tfith
the permission of the Court, procoed to read the
greater portion of my remarks from the manuscript.
At I have copied most of the remarks which I cite
literally, and as tbey^fVnumerous and I have not
access at present to some of the books from which
they are taken, I shall read them, with the exception
of some three or four, from the manuscript copy
which I liavo before me.
It is solemnly declared in the great charter of
English liberty that: No freeman shall be taken, im
prisoned, or disseized of his freehold or liberties, or
free customs, or be outlawed or killed, or otherwise
.E^oried foi the News & Herald.]
. C. S District Court yest?rday, Judge Erskine,
;.--t to appointment, heard the arguments of
Ex-Gov. Jos. E. Brown upon the con-
oality wi the Test Oath as applicable to lawyers,
^lion having arisen frojn the motion of the
yin. Law, to be permitted to continue his prac- j destroyed or condemued, but by lawful judgment of
r r the Court in which he had practiced for forty-?
. iru, without taking the oath.
> I/iw first addressed the Court, speaking in
ip3C3 as follows:
. penad the case by producing before the court
iamasty Proclamation of President Johnson,
[ ^ of allegiance which he had taken under
I /jamation, and an affidavit covering his ac.
see of tho term pardon as required by the
nation—the original letter having been sent
iihington ns required. He remarked that ho
jjj designed to enter into tho full consideration
• e j-al question, in consequence of indisposition
I , je limited time in which to prepare such an
os would do justice to the question; but
!i as the case had been brought forward
own application for admission to practice
I.. Mirt of tho United States, he felt it necessary
ho case by indicating tho main point upon
relied.
^ m eloquent tribute to tho fidelity of the Supreme
: :o the groat trusts committed to them, tho
.-aished ge tie man expressed his entire confi-
»in the results of their deliberations upon the
>; The judiciary, however, powerless in times
great convulsions agitated and threatened the
:::icn of ✓the country—when sectional strife,
iicg to ctll classes and parties, had destroyed,
Thja, its vitality—when its righteous dccls-
tr c re unhsard in the din of war—had always
tra- to the constitution of the country—
great charter of American liberties.—
„J not. therefore, doubt what the decision of
tribunal would eventually be The first propo-.
|r :iiid down was: that on 18th February, 1865,
Lied that he had boon fully and freoly par-
; ins Executive, which pardon embraced a
l.^s&se from all the pains and, penalties incurred
act or acts committed anterior to it; that
jjHtoilh was the infliction of pains and penal-
:herefore null and void; that the pardon-
Ijy^r is a constitutional power conferred upon
;.-.:iient, and ho act of Congress can take
his peers, or by the law of the land.
Judge Blaokstone says of this provision in the great
oharter that it protected every, individual of the na
tion in tho free enjoyment of hie hie, his liberty, and
his property, unless declared to bo foi'frlted by the
judgnumt of hidpettrsf, or the law of the land. [Com.
vol. 4, page 424.] Again, in voh 1, page 139, he says: And
by a variety of ancient statutes it iB enaeted that no
man’s lands or goods shall be seized into the king’s
hands against the great charter and the law of the
land; and that no man shall be disinherited, nor put
out of franchises or freehold, unless he be duly brought
to answer, and be forejudged by course of law; and
if any thing be done to tho contrary it shall be JC--
dressed and holden for none.
Mr. Vattol, in his standard work upon‘tho law of
nations, page 33, while treating oi the principal ob
jects of Good Government, says: Tho society is es
tablished with a view of procuring to those who are
its members, the necessaries, conveniences, and event
pleasure# of life, and in general everything necessary
to their happiness—of making oach individual peace
ably to enjoy his own property, and to obtain justice
with safety and certainty.
Again, he says: The State ought to encourage labor,
to animate industry, to excite abilities, to propose
honors, rewards, privileges, and so to order matters
that every one may live by hia industry.
It is laid down in the Declaration of American Inde
pendence, as a self-evident truth, that all men are en
dowed by their Creator with certain inalienable rights;
that among theso are life, liberty and the pursuit of
happiness; that to secure these rights governments are
instituted among men, deriving their just powers from
tho consent of the governed-
By the above quotations and others that might be
added, which are doubtless familiar to your Honor, it
will be seen that the celebrated Charter of English lib
erty, the language of the great European author, and the
American Declaration of Independence, all concur in
laying down as fundamental principles, which under
do the structure of good government in every»free State,
which no legislative body has a right to ignore, disre
gard or violate; that it is'the duty of the Government
not only to encourage labor and stimulate industry,
but to so order matter that every man may live by-his
industry; and that the pursuit of happiness in every
innocent manner agreeable to his inclinations, the ex
ercise of honest industry in any trade or profession
which he may select for the purpose of procuring a
livelihood; the acquisition of property by his labor,
and the protection by government of his life, liberty,
person and property against every illegal or unjust
violation or invasion, arc inherent inalienable
rights of the citizen or subject, which no
government can disregard or violate without
incurring tho Just censure of enlightened reason
for the exercise of tyranny and oppression. But
if the legislative department of the „ Government,
no matter by what motive it may be actuated, should
so far transcend the proper boundaries which have
boen prescribed to its authority, as to invade these
sacred rights, protected as they are by a law higher
than its enactments, it is the pride of our system, that
Bacon’s Abr. 279.] Offices which are a right to Admit then, for the purpose of the argument, that
exerci?e a public or private employment and the law was valid during the war, and where is it«
to take the fees and emoluments thereto belong- J binding force now that the war is at an end ? In that
ing, and also incorporated her edi foments-,whether j view of it, w$ have the very case laid down in the
public, as those of magistrates,or private as of bailiffs, | books where the reason of the law having ceased, the
receivers, and the like. For a man may have an estate •! law itself osases- -
in them, either to himself jandjita heirs, or for life, I have 4pady shown, I trust, to the satisfaction of
j an independent judiciary, whose duty it is to hold the
cnefit which tho exercise of this power j scales of justice in equipoise, as well between the citi-
i zen and the Government, as between citizen and
citizen, will vindicate the majesty of the Jaw, and
maintain the good faith and justice of the Government,
by declaring all such enactments as violate the' funda
mental law, inoperative, null and void.
Dei us apply these great principles to the case now
before your Honor. At attorney of this Court, whose
name has appeared upon the rolls as an officer of
Court for nearly fifty years, whose private and profes-
fessional character are of the most elevated rank; who
; has filled with distinction the position of a Judge; who
hisio crim mate himself. You cannot put the { was a Union man as long as there was a possibility of ; course of law, when the court of which he is an officer,
. t i t{ . Tiimcolf .Uot ! proven ting-the rupture; who never bore arms against ■ and to which alone he is amenable, way strike his
■ «»eu upon me s.anu to criminate nimseii in a * rrr»,>aO a?oh>a -~n_ »..».» x *
| : >i ienJ against the law and tho constitution
;;-on the subject of tho Executive clemency
rated thia point, contending that the net was
lisai net. and in its operation, especially m hi3
I a: 1.-3 the infliction of pains and penalties
11- second proposition discussed was that the test
laiilateu with that provision of the Constitu-
idi forbids that the accused shall bo made a
or for a term of years, or for during pleasure only ?
[Blackstone’s Com. 36.]
By these quotatons it appears that a- man may
have an estate in an office. What is the meaning of
the word estate ? In its most extensive sense it is
applied to signify everything in which riches or for
tune. may consist, and includes personal and real
property. [BouTier’s Law Doc.*516.J According to
Judge Blackstone, hereditaments are a species of es
tate, and he declares an office to be an incorporial
hereditament.
An attorney at law is then, according to the author
ities, an officer of the courts, legally invested With an
ofrtce. That office is an estate, which may be for life,
or for a term of years, or during pleasure. That es
tate is property. And the Constitution oi tho United
States says no one shall be deprivedof property with-,
out due process of law.
It matters not whether it is attempted to be done by
means of a test oath. Compelling a party to criminate
himself, or ih what imaginable form, other than by
due process .Of law, it ia alike void, whatever may be
the means resorted to for its accomplishment. What
power then has Congress to deprive an attorney of
his property in his profession, simplv because he re
fuses to swear whether he has or has* not violated the
criminal law of the land, where he has neither been
charged with, indicted or convicted ot any such viola
tion. I deny that it haa any such right. This at
tempt is in viofation of the fundamental law as ex
pounded by the highest authorities, and is absurd
within himself; and I know of no rule governing
courts which could justify your Honor in tho enforce
ment of any such enactment.' The statute is a nullity
and must, in my opinion, be so held whenever and
wherever it is brought in question before any intel
ligent court. . *
I further invite your Honor’s attention to the fact
that the ofilce of Attorney and Counsellor is recog
nized as well by the Constitution and laws of the
United States as by the common law.
In the titli article of the amendments to the Consti
tution it is declared that ih all criminal prosecution *
the accused shall enjoy the right of a speedy and pub
lic trial by an impartial jury of tho State, or district
wherein the crimes shall have been committed; to be
informed of the nature and cause of tho accusation;
to bo confronted with the witnesses against him; to
liave compulsory process for obtaining witnesses in
his favor, and to have the-assistance of counsel for his
defence.
The. judicial act of 1789 provides that in all tho
courts of the United States tho parties inay plead and
manage their own causes personally; or by the assis
tance of such counsel or attorney at law, or by the
rules of said courts respectively, shall be permitted
to manage or conduct causes therein.
Tile Court will observe that the Congress of 1789 did
not attempt to prescribe the qualifications of the attor
ney, or to say who shall or shall not practice in the
courts, or for what cause au attorney shall be strickeu
from the rolls. .That is left us it should be, to the
courts or principal officer, to which the office of at
torney is incident, to be determined by rule of courts.
The olhce of attorney at law is clearly incident to
that of a court, or of the judge or judges of the court;
and the incident officer Is only amenable to the prin
cipal officer, and may bo removed by him—Congress
has no such powers. In 7 Bacon’s Abr. 284, and the
cases there cited, the law upon this subject is laid
down in the following words:
Wherever an office is incident to another such ince-
dent office is regularly grantable by him who hath the
princixial office. On this foundation it hath been held *
that the King’s grant of the office of County Clerk was
Void; it being inseparably incident to tho office of
sheriff, and could not by-any law or contrivance be
taken away from him.'
If the King’s grant of such* incident office was void,
.and so held by his own courts, and it could not bo
taken away from the principal office by any hue or con
trivance, it follows that the King and Parliament to
gether could not rightfully do it. VVhero then does
the Congress of the United States, restrained by a
written Constitution; get power to do that which
the King and Parliament together in Great Britain,
without such restraint, have no power to do ? The
office of County Clgrk in England, which from .time
immemorial has beeii an incident of the office of
Sheriff, is certainly no more iinseparably connected
with the Sheriff’s office than is the office of attorney
in this country with that of the courts; and yet the
transcendent power of the King and Parliament can
not, without utter disregard of all principle and pre
cedent, deprive tho principal office of the control of
the incumbent.
I do not deny that Cpngross may lay down general
rules regulating the 'proceedings ot the Courts and
the conduct of attorneys. *Butl do deny that it can,
without usurpation, destroy the constituted court&or
deprive them of their legitimate control over the at
torney ; or that it can deprive the attorney of Jiis of
fice when, he has been convicted of violating neither
the law of the land nor the rules of the court.
But I may be asked if there exists no power in the
Government to deprive au attorney of his right to
practice. I reply unhesitatingly that there does not,
unless he lias lorfeited it by his own misconduct, in
the violation of the law of the land or the rules of the
ourt, of which he must have heen convicted by due
the courtr&at the office of a lawyer or his right to
practice his profession ia property, and aa aacti that
it is protected by the Constitution of the United
States, and that he cannot be deprived of it without'
due process of law. If Congress luis power to deprive
hun of this property on his refusal to take a teat oath,
the tender of which it will not be pretended ia due
process of law, it haa the same right to deprive j um
of hia library, his dwelling-house, choses en action r
and any and all other property he may possess, till he
takes the oath, and if he can never take it, the confis
cation of his whole property may become complete
and perpetual, without indictment, trial by jury, or
conviction of any offence whatever.
Again, if Congress has power to deprive a lawyer of
his property in his office till be takes a test oath, it
has the same power to prohibit any citizen from fol
lowing any other profession or avocation til^ he haa
done the same. If it bad power to enact thia law, it
haa the same power to vary, alter, or amend it at
pleasure. If it may • constitutionally do what it has
done; as the freedom of religion has no higher guar
anty m the Constitution than the protection of pro
perty ; it.may pass a law that no one shall preach the
Gospel till he has sworn that he believes baptism by
immersion the only mode; or it may enact that no
one shall practice medicine till he has taken an oath
that he never did, and never will use opium in
his practice; or that no one shall plow till he has tiled
his affidavit that he wffl never use a turning plow, as
the Creator placed-the soil on top of the ground where
it should remain; or the party in power in Congress,
no matter which it may be, may prescribe a test oath
that no person shall ever vote again who does not
make oath that he never voted for the other partv;
and may justify it upon tho ground at least satisfac
tory to itself, that its principles are the only true prin
ciples of the government, and that the public good
' imperatively inquires that they be carried out in prac
tice, which might not be done without the aid of the
oath. * •
Let tho judiciaiy sustain thia assumption«of power
by Congress, and it may close the Courts in the South
indefinitely r shut the doors of the churches; stop ever}’
spindle of the manufacturer; quench the fires of every
furnace in blast;'lock tho doors of the merchaut, and
drive the plowman from hia honest labor—all by the
simple appliance of a test oath.
And as nineteen-twentieths of tho people of Georgia,
could not probably take it, Congress by a test oath de
claring that no one shall hold property who cannot
take it, moy confiscate ninetcen-tweutieths of the pro
perty-of Georgia, and indeed of the South, by the ex
ercise of this power; for if it has power to forfeit the
property a lawyer has in his profession by this means,
it lias as much power to confiscate any and all other
property of all who refuse to take any test oath it may
prescribe to any or all the people of the United States.
Establish the principle that Congress can exclude all
men from office or the practice of any profession or
avocation who do not swear that they never bore
arms against the government, and it follows that it
may enact a law that no man shall hold office who fails
to swear that he did bear arms in defence of the gov
ernment. If thfj enactment of test oaths become# the
settled and appioved policy of tho government, the
people of other sections of the Union will soon find
that the Southern people are not the only sufferers.
I may be told that the British Parliament centuries
ago onated test oaths, and that no man was allowed to
hold office until he had taken the' sacraments of the
Church of England and the oaths of abjuration, Ac.
This is true; and it is also trne that tbs enlightenment
of the age and the triumph of reason have long since
swept these oaths from the statute book, and the Jew
and the dissenter sit to-day by the aide of the church
man in the Parliament of ihe realm.
But it does not follow from this historical Cut that
Congress now Inis, or ever did possess anjp.such pow
ers. The Parliament of Great Britain haa established
a particular church. Has the Congress of the United
Slates any such power ? Parliament haa established
an aristocracy, and provided for the grant by the
king, of titles of nobility. Can Congress do the same ?
Certainly not. Why not ? Because there is a written
constitution in this country whioh expressly forbids
it. There was none in England. Such is the omnipo
tence of the Parliament of Great Britain that* with the
consent of the King, it may change what they call the
constitution at pleasure. The Congress of the United
Bfates with the President has no such power. The
Parliament of Great Britain has power to confiscate
the property of the subject beyond the period of his
life, ana either with or without the use of test oaths
if it should so will to deprive a subject of his prop
erty without due process of law. The written con
stitution of the United States, which it has no power
to change, denies to Congress the power to do either.
From the difference in the powers possessed by Par
liament and by Cougress, the Court will readily per
ceive the reason why the British test oaths can, as
precedents, be of no avail to the* advocates of similar
oaths in this country.
It may be contended here, as it hag been efee-i true, the law Kijra “he may decline-to answer, 1 ’ but \ elamation extending nnirenal nmnastv with
where that thin test oati, is nut a /tnialty nor the | what then? Ia the fact to be proved by othergri- ! exceptions, to the whole neoDle of the Smith l v- ’
act imposing it a penal pcitute. but that it is an ad- : dence ! No; this silence ia considered aa sufficient j which he pledged the faith of the Government ’ /fur
dttiomil <;iuiliJicatton fur office prescribed by Con. , proof, and he is excluded accordingly. Be is, there- j he aj Commander-in-chief was its renresentati'-u > *
gross, lt.s iiot necessary that I discuss Acre, the fore, compelled to answer, if ho does not wish to be I that on the exceptancwof the terms nronosmi hi
jshver ot Congress to proscribe other r/tifihlieniion.i, j excluded as unworthy to sit as a juror, or does .;ot ! him, and on taking the ^ath of nUcziance the nnf
than th.Mo nrosenhed .n the rnnstainh— o. -id. l,„ .a pie of the South should be restored toall thrir
rights in the Union under tho Constitution.
than those prescribed in the Constitution tor its own wish to be considered as concerned in a traffic which
members, or any other officer of the United States. I
... m t set up the inquisition, and by the ap-
icl ths tenure, compel eonfeseiou. That
rck Imnianity, and ba abhorront to the civil-
■ ’.he age; but by aa ingenious device, you
; inquisitional test to his conscience, seaveh-
i. i must secret thoughts and emotions, by
accomplish so effectually and completely
;£ru:tion of his rights of person and property,
I—.-he were stricken upon the rack, arid the
r.I tortures of the inquisition applied to hi d
This is repulsive to the nature of our Gov-
I - t j her froe institutions, dangerous to the
■ if the citizen, and virtually defies the 5th
i of Amendments to the Constitution. What
■ proposed You must purge yourself by an
In that you havo not committed, suspected,
■ zjttcd, or imagined offences, before you shall
o or enjoy rights and property which other-
ire the unalienable iuheritarice of an Amerioan
But tho benign principle of the law, and
li’Inu of the Constitution alreudy referred to,
]"Ain every one innocent until thoy are proved
! mi farther declares that “ no one shall be de-
• t life, liberty or property, without due pro-
: -w " This principle of magna c/iarta, en-
= at.j ti,e Constitution and interpreted by tho
rigal authorities, is well defined and indiapu-
1 ’' wit is meant by due process of law f
pers.in charged with eriino shall have tho
I y~ ‘ an impartial trial by a jury of his peers,
' indictment or presentment, arraignment,
| * • fipnLory attendeneo of witnesses, and the
-litigation cf tho charges, tho benefit of coun-
~ : '= Lienee, and all the provisions which the
:te nisimis of tho law throws around him.
' arrangement of a test oath militates
y' : '-hat ciauae of the Constitution. With one
hirtrake hi= head is cut off; and by the cunning
■ 'ito. oi a test oath ho is as effectually exe-
"y- - the axe had dona its work.
;'-iid pioposition is that an attorney has a
i atii a property in his office and its emolu
J the Government of the United States, or held office j uamo lrom the rolls. As he is admitted hy tho count
Under the Confederate States: who has violated no as .an officer of court, without limitation as to-time, Or
rule of the common law; committed no contempt of j during good behavior, he may hold the office lor life
Court; collected no money which he has refused to j unless he forfteits it by misbehavior, of winch he can
pay ovar; acted in bad faith to no client; nor has ho t never be convicted without trial. In Bacon's Abr.,
oeen chnrged,indicted,orconvicted underauy penailaw j vol. 7, page SOS. tho law on this subject is laid down
of thia State, or of the United States; and who haa re* in the loUowiug clear and strung language:
ceived a full pardou from the President of the United ! “If an office be granted to a tnan to have and enjoy
States for any and every act which might, even by < so lung as he shall behave himself well in it, the grantee
implication, be construed as a violation of the law, | hath au estate ox freehold in the office; for since uotli-
because he cannot take a test oath that he never “ aid
ed, counselled, countenanced, or eneonragedl’ any
tug but bis misbehaviours cau determine bis interest,
no man can fix a shorter term than' his life; siuce it
one who bore arms against the United States, is to be \ must be his owu act {which the law does not presume
driven from the bar unless your Honor can protect bis ! to foresee}, which omy cau make his estate of shorter
rights by the decision which you may feel it your duty j continuance than his life.”
to pronounce in this case. , This is the tenure by which the lawyer bolds his
While he refuses to take the test oath, who Bays he ] office. Aud it is precisely the same by which the Eug-
has been guilty of rebellion, or treason, or other j lish itudges aud Judges of the Courts of the United.
crime or misdemeanor, prohibited by any law of the , states bold their offices. Who ever, heard of a Judge
United States? What officer ot the Government stands i of the United States Courts haviug been dismissed
here as his accuser, and upon what charge aud specitt- : from office without previous trial and cbnvictioii of
oations ? What provision of the peuul code has he vie- misbehavior ?
lated, and when and where did lie. do it, aud who are I will uow proceed to show, {while the mode of trial
the witnesses against him? What graud jury has in- . is not tiie same), that this is the ruleupplied by courts
dieted him, and upon what chargj; ? What petit jury | to attorneys: Au attorney may- be struck from the
has found him guriiy ? What J udge has pronounced | roiia for any Ill practice, attended with - fraud and cor-,
sentence upon him, and when was it done, aud whore i ruptiou, aud committed against -the obvious rules of
is the record ? - justice and common honesty. [1 Bacon’s Abr.,
I wish also to iuvite the attention of your honor to
this view of this question. I have already shown that
the Congress of the United States has, by statute, au-
tliurized parties iu -the courts to manage their causes
by the' assistance of such counsel or attorney at law as
by the rules <p said Courts respectively shall be per
mitted to manage or conduct cases therein, and that
the Constitution guarantees to the accused the assis
tance of counsel for his defence. Now, I deny that
Congress has the power after a party lias employed an
attorney under this act aud conhdeJ to him the man-
ag-ment of his cause, to deprive him of his assistance
whan the attorney has been convicted of neither mal
practice, crime ner misdemeanor.
I will now proceed to show that this enactment is
obnoxious to another grave constitutional objection,
flic Constitution'of the United States declares that no
bill of attainder, or ex post facto law Bhmll be pasted.
By a bill of attainder I understand a judicial
sentcuce by Parliament, or a legislative usurpa
tion of judicial power. As when the Parlia
ment ' passed a bill to attain A. B. of high
treasou, and directed his execution and the
confiscation of his estate This act of Congress is
m the nature of a bill or attainder. It does not at
taint a lawy er of high treason, but it does assume ju
dicial functions, and confiscates his property without
judicial trial or judgment. And it usurps the power
which properly belongs to tbe Courts alone, of deter
mining who shall and who shall not fill the office,
which is inseparably incident to the Court. This ob
jection embraces the case of the applicant for admis
sion to the bar as fully as that of the member of the
bnr. The Court prescribes a rule upon conformity to
which any citizen lias a right to be admitted to the
bur. It belongs to the Court to fill this incident
presume there are few advocates of the position that
Congress has power *to prescribe, the qualifications
of any but officers of the United States. What
power has Congruse to prescribe the qualifications
o; the Governor of a State, a member of tho State
■Legislature, or a Judge of n Stato Conrt ? It cer
tainly has none, though they are all citizens of the
United Stales, and all officers. An Attorney atlaw
is ihi officer of Court, hut not au officer of the Uni
ted Mate*. He is admitted by the Court, under
rules prescribed by it, to'practice in the Coortf . and
is answerable.atone to the Court. '
This is the construction given to it by Congress
itself. The act of J uly, lSo*2, prescribed tho test
oath for nll'q^ecr* of the United States. That of
January. 1&o5, declares that Attorneys at Law shall
take the same oath before they are permitted to
practice in the United States Courts. If Congress
bad considered them officers of the United States,
Act of
they were fully embraced in tho Act of July, 1862
and it was an idle waste of time to pass the Act of
Junuaty, 1865. It is very clear then that the test
oath Is not prescribed os an additional qualification
for an officer. The oath was intended as a penalty,
and Ihe statute as a penal one, against those who
aided in the war against-thc United States. It was
not intended to qualify tho lawyers ot' this bar for
the practice. It was intended to forfeit their
right to practice.
In supiwrt of tho position that a statute prescribing
a test oatir, which depriving a citizen of his right
to hold office a penal one, I refer your Honor to
the east of Leigh 1, Muuford’s Va. Repj; and the
case of Durey 7, Porter’s Ala. Reps. Each of theso
States hud )M*scd stringent acts against duelling,
and bad pruBcrilied an oatli to bo taken in Virgi
nia by all officers of the state Government; and in
Alabama,-by all Stale officers and practicing attor-
nie.t, that click had not before engaged in a duel
and would never engage in one, while he remained
iu tho office. In each chss the applicant moved to
be admitted to the liar of the Supremo Coart
without taking the oath; and in each ease the
Court, sustained the motion. Th’e decisions arc
lengthy, but a.- they are very able I shall not apo
logize for reading portions of each to your Honor.
And Upon the’point to whieh I last referred: I in
vite the altcntiou of the Court especially to the fol
lowing. language of tho Judges: In Leigh's case
page 482. Judge Roane who was greatly distin
guished for hisHThility, says: However, laudable the
object of tho act to Mipprese duelling may be, it is
still a highly penal law aud must be construed
strictly. It is unusually penal if not tyrannical,
in compelling a person to stipulate upon path, by
the 3d section, not only in relation to his past
conduct and present resolution, but also for the fu
ture state of his mind. Thus premising that this
act is highly aud unusually penal, I will under, tho
influence of the. rules for construing pinal statutes,
proceed to apply it to tho case before us.'
J udge Eleming in the seme chss says: The wet
under consideration being a compulsory law (how
ever salutary it may be) imposing on the officers of
the Government .an oath unknown to the former
law of the State,, or of tbe United States; though
there be no pecuniary penalty inflicted on those
who refuse to take the oath therein proscribed: I
cannot but consider it as a penal statute, and os
such must give it a striot interpretation. Again he
says : Admitting that attorneys arc comprehended
in the act, if has or ought to have jnospeettre and
not a retrospective operation, and cannot affect offi
cers of any description appointed to office prior to
the passaye of the act. In Dorsey’s case, 7 Porter,
366, Judge Goldthwaito says: I hare omitted any
argument to show that disqualification from office
or from the pursuit of a lawful avocation is a
punishment—that it is so as too evident to require
any illustration; indeed it may be questioned
whether any judgment could devise any penalty
may be considered as infamous. The maxim of tho
common law recognized by the Constitution is that
every man is presumed to be innocent until he is
proved to be guilty. The whole spirit of this law
appears to me to be ft variance with the rights of
property as well ayarsis. The Legislature has no
right by an act to Mnfiscate the property of the citi
zen ; it may bo forfeited for a violation of law, but
this must be done without affecting the rights of the
owner thereof fo a jury trial.
Gov. Brown also produced the decisions- of Judge
Trigg, U. S. District Judge for Tennusae,and Judge
Busteed, holding the same position iu Alabama, «ud
read parts of both decisions. The Court in each
case held thp law ex post facto and void. These
decisions, he said, were precisely in point deciding
the same question now bofore the Court. He then
proceeded: ' >
I beg the pardou of the Court for having taken
up so much time reading authorities, but as they are
in Point, and arc the opinions of able Judges, and as surrectiou (a circumstance which perhaps never hap
the question is an important one, I have relied upon., pens) even in such
the uidulgence of the Court. These authorities es
tablish tbe points I have taken against this law, to
my mind beyond all question :
1. That the attorney is an officer of Court; that
he has a property in that office; and that it is for
lire or good behavior.
I- That this act of Congress violates tho social
compact, Magna Gkarta, and tho Constitution of
the United States, by depriving him of that jri-opcrii/
without due process of law, in this, that he is in ot-
fect convicted, and ’his property forfeited without
presentafent or indictmont of a grand jury; that he
is denied a trial by jury; that he is deniod the right
to be confronted with the witnesses against him;
that he is denied compulsory process for obtaining
witnesses in his favor; that he is deniod the assist
ance of counsel for his defence; and that he is com
pelled to be a witness against himself in a criminal
case, or that his silence is construod as conclusive
evidence of guilt.
3. That the act is in the nature of a bill or at
tainder, and is an usurpation by the Legislative De
partment of the Government of the functions as
signed by the Constitution to tho Judicial Depart
ment, being a sentence of forfeiture, pronounced by
Congress, which, being a judicial aud not a legisla
tive act, can only be done by the Judiciary after
trial and conviction.
4. That the law is not and was not intended to be
a law prescribing qualifications for office, but a
penal law forfeiting bis property for the commis
sion of an act, which at tho time of its commission
bad no suchjienalty annexed by law, and that the
act or offence is punished by this-law in a manner
different from that preatribeiny law, ai the time of
its commission ; and that the law is ibr this roason
ex post facto and void.
But suppose the doctrine to have- been fully es
tablished that Congress has power to forfeit the
property which an attorney has in his office, for hav
ing borne arms against tho Government, or counte
nanced those who did; arid that it may use test
oaths for the purpose of ascertaining who is, and
who is not guilty, compelling each to suffer the pen
alty of guilt ifhe refuses to answer—iu other words,
drawing contrary to ail such a conclusive inference
of guilt from a refusal to answer; and pronouncing
and executing judgment accordingly. How does
the case then stand 7 The Office of the attorney
would bo forfeited, so soon as tho court met aud
tendered the oath and ho refused to take it.- - But
certainly npt till then. Why net l Because Con
gress make? tho refusal to take tho oath conclusive
evidence of guilt; or rather it forfeits his estate
because he is guilty; and makes the refusal to take
tbe oath stand in the place of trial by jury, and a
judgment of guilty rendered by the court. Just as
if tho Legislature of Georgia should pass an act
(no matter how absurd) that when a man is fbund
dead in any county, every man, woman and child in
One of the fundamental maxims of the common! Tins is the general rule of law upon the Subject; but ; “ j has rioriSit to interfere white he
;w. which has been approved by tho attest jurists as the tollowiria quotations will show, he will be heard °““ e ’“
I this Act divest?, him of this fran-
® property, and is consequently null and
ti; i- tHjt-an officer of the Government.- The
I v*, aBtter 'Be Judiciary Act, 35, his qualifi-
.y V?'* a ^ m '" u ’ n ' s pointed out by tho legisla-
I '“x 15 TpfpTTAil try tka Pxuirt Ha>ia on riffirtAP
‘, 15 referred to the Court. He -is an officer
: ■ tin To carry out the provision of the
ia granted without limitation It-la
Se 9 e sserit'' and cannot, be revoked by
Ii>r!} 1! 1 meD t Lut lor crime ascertained by due
- Nor can it bo revoked by the Court
conrln .t- i tc i ti he refuses to matte i
N’e?v . j him3elf P r0 pc rl y• He acqmres, i auinedto b e guilty,
k*.’. *' octea interest m hia office and its emol- I perty in hia protest
law, which has been approved by tho ablest jurists 1 as the following quotations will show, he will be heard
and sanctioned by the wisdom of age* is, that every when the charge has been preferred, and must be cow
man shall bo presumed to be innocent till the contrary j yicted before he will be deprived of hie office,
is proven. The attorney is entitled to the benefit of j When an attorney has been fraudulently admitted,
this salutary rule. Ho stands before you to-day as did | or convicted after admission of felony or other offence,
tbe woman over eighteen hundred years ago, before j which renders him unlit to be continued as uii attor-
tha Judge of all the earth, with no accuser, and I trust J ne^, he may be struck off the rolls,
the judgment of your Honor will be: neither do 1 ac- j And if an attorney practices after he haa been con-
cuae thee. He stands with the presumption of ipuo- vicied of forgery, perjury, subornation of perjury,
oence in his .fayor, and as no proof is offered to the . or common barratry, ho is liable to be transported,
contritry that presumption becomes conclusive. How j [Same Authority, page 608.]
then is this Court to punish him by the forfeiture of An attorney will be strhek from the rolls when he
hia property in his profession, and by lukiug from ! hits been convicted of subornation of perjury. [1 Mc-
him his means of livelihood for the commission of j Cord’s.a. C, Keps. 379.J #
an offence, of which the presumption ol innocence by j But the oourt will not proceed against such attorney
a rule of law which you cannot’disregard is conclusive (before conviction. [2 Haisted, 162. J
in his favor ? Such a proceeding would nut only vio- ■ An attorney concicteaof ielony and punished for
late tho grunt principles of magna chartct, but would it was struck off the rolls. [Expurte Browuall Cow-
be subversive of the very foundations upon which our ) pur’s lieps., 829.]
system of government rests. In place of the salutary j On St mere a negation that an attorney has been
rule above mentioned, which has been consecrated j guilty of larceny his name will not be stricken off the
by the wisdom of ages : it would establish tbe con- i rolls; his conviction must precede. [Bacon’s Abr. JOG.]
trary one that every man is presumed to be guilty of I Theso are tho rules which govern in. ehse# when it
a criminal violation of the law till he proves liis owu I is proposed to strike an attorney from the rolls for a
innocence. Ifhe has been guilty of no crime, ali ! violation of public law, which will only be dono upon
must agree that he should suffer no penalty or for- hia conviction ot such violation. As he is an officer of
feiture. The very fact that it is proposed to forfeit j the court and amenable to the court, he may be ‘struck
bis right to practice his profession for lii9 support— for a wilful violation ol a rule of court, when liis act
presupposes, contrary to the truth, that his guilt has , involves criminality, or for a wilful contempt of court,
been established before a court of competent jurisdie- i but never without a hearing nor until hia guilt is os-
tlon. Otherwise tho forfeiture is an unwarrantable tablished.
and defenceless violation of the great principles of ; But I may be told that the Congress of the United
organic law, laid down by the high authorities which I i states, in time of war, may seize and confiscate the
have quoted, and recognized by every enlightened f property, whether in an office or any other kiud, oi a
jurist who has lived under free institutions, in every t citizen suspected of disloyalty or oi having aided in
age. * .- 1 rebellion, and deprive him of liberty or property till
But it may bo said that, large numbers of persons, j ho lias proved, or at least sworn to his innocence. I
and among them many lawyers, have been guilty of ; deny it. Congress ha9 no rig{it to violate the C onsti-
treason, or of encouraging rebellion against the Gov- i tution eit-ier in peace or war.
eminent of tbe United States ; aud that Congress has j The rule laid down in the Constitution in plain Un
adopted this mode of compelling each to discover ; guago is thisNo person shall be held to answer for a
under oath whether he is one of the number ; and if capital or otherwise infamous crime unless on a pTe-
he refuses to make the discovery, that he shall be pro- f aentment or indictment of a grand jury. Tho exrep-
wlio complies with the rule* of the Court, has an uh
questionable right to be admitted to practice. The
student expends bis money aud time in preparation,
and when ready'to comply with the rule of Court he
applies for admission, and is met by a qiuwi bill ot
uttaiqdcr in the nature of ft judicial sentence passed
by Congress, that he shall not be admitted on comply
ing with the rule ot Court, but that it i3 the judgment
ol Congress that lie must also take a certain test oatli
not required by tho Courts, before he can bo adinit-
which would operate more forcibly on society. Again j the county, who refuses to swear that he or sho was
he says: A citizen is informed that by the laws of the ! not a party to his death, shall bo token by the sher-
State: he is eutitled to aspire fo any office, or pursue j iff ihcl hanged, and all his or her property shall bo
any other avocation which any other citizen can.— , confiscated.
Yet where he is about to enter in the office, Or avo- i But now suppose before the oath is tendered to
cation he w required to swear to his innocence of a any, or any one is executed, the pardoning powers
particular ciime ; it then becomes evident that if he J should grant a full and froe pardon fo every person
cannot truly take the oath required, he Is excluded. | in the county,', could the sheriff after the pardon,
Cau it be doubted that'for all the purposes of j with knowledge of its existence, proceed to hang
the disqual• fixation the guilt ot the individual j every one, or to seize the property of any one as
is ascertained t In what does it differ j forfeited 1 All must admit that he could not. The
from
office
specified crime. Admitting a person
BJ*ccrwiiwa i in wnai aoos u ainer torteited t Ali must admit that he could not. The
»m ^general enactment that a candidate for pardon having been granted before judgment or
ice snail be required to prove and establish his execution, it leaves the accused in precisely the
noceticc of a .»peeifiod crime. Admitting a person fo I gamo condition in which thev stnmi before tho
, .... .. , . same condition in which they stood before the
b« guilty h« IS iieithor accused, tiled or conncted\ charge m made against them; riot only with the
by any .tribunal known to the laws; yet he punished J right to Ufe and Ublrty, but to the peacablo enjoy-
withunenns certainty, and the utmost celerity; hi* ment of all their property
hl9 n, - d j “ dg ‘i' Now the rtuth is, that most of the attorneys of
pumshute.it commences «ulh the commission ot the j thia ^ received, either under the General
enme and termmatea onlywhen he ceases to exurt; Amnesty Proclamation of the President, or upon
he * excluded from the sympathy of ha peere-no gpe cinl application, full pardon from th« President
legal doubt can intervene to produce his acquittal- of the united States, bofore any court has been held
no error pt his judgment involves his soul iu . the 1 - - -■ - ’ -
The
people en matte, Attorneys at x,aw included, Judge
Law among the rest, accepted the terms, and manv
who were not embraced in the general amnesty, on
special application received pardon. Here then are
found the terms of the capitulqtioq, to which Abo
several States in their aggregate capacity, as well as
the people individually, haw faithluliy^conformed
They have even changed their State Cteuetitotions,
submitted to a revolution in their whole social and
labor sjrstem, and given tq, hundreds of Adlions ot'
dollars in their slaves, to make the compliance on
their part fuil and complete.
Now, in emBideration of all this, I trust the Oourt*
will hold tmtt the law-making power is bound also,
and that the past should be forgiven and forgotten.
Upon this subject I .call your attention to tho
language of Vattel in hia Law of Nations in his
chapter upon Civil War. He says: -
And if there existed no reason to justify the in
case it becomes neces
sary, as wo have above observed, to grant an am
nesty, when the offenders are numurom. When the
amnesty is once published and accepted, all the past
must be buried in oblivion-, nor must any one be
called to account for what has been dune during the
disturbance. And iu general, tbe sovereign whose
word ought cver.to bettered, is hound to the faith
tul observance of every promise be has made, even
to rebels. \ortel’s La of Natrons, pp. 423 and
424.
no error p ms juu^cm involves nu sou. fa Ih* Statre «■ the test oath has been tendered to,
awful gu.lt ot perjury „r punish b« without £ reflued t ! 0 be token b one Admit t , ’
gmlt. I have no hesitatmn m _declanng that th« j ^ the refusal t0 take t J aath atond3 ^ ^
* conviction of guilt, and it can have
guilt which' is not only unwarranted by the constitu
tion; but is also in direct contravention of several of
the most important provisions of the declaration of
rights, by which the liberties andprivfieges of the
citizens are guarded. * * * # *
When once it is admitted or proved that a
citizen has a right to aspird to office- or to pur
sue any lawful avocation, it seems to me impossible
that be can be legally deprired of that right by a
punishment for au offence committed without a trial
Uy jury ; and I can perceive no sound distinction
between a law which deprives one of his right with
out a trial, anil that which ascertains and punishes
his guilt by an illegal mode of trial. He then refers
to the Governor’s right to grant pardons, and says:
We cannot presume that the General Assembly in
tended by this act to interfere with the ConstiUi-
tkraal prerogative of mercy vested in the Executive,
yet thia act, if constitutional, imposes a penalty
which cannot be remitted, and inflict* a punishment
place
no applica-
ted, and that on refusal to take it he stand convicted t j
of aiding and abetting rebellion. If Congress may in- i beyond the roach of Executive clemency
-dude all applicants for admission UU they take tbe aaiue e ase, Judge Osmond say£pp. 379:
test oath, it may so slaipc the oatli that no man ever
can take it, and'it may thus create a monopoly in the
office of attorney in the hands of tile few uow at the
bar who can tho oath, and at their death destroy tho
office altogether, notwithstanding the Constitutional
guarantee, that every person accused of a criminal
„JV.V. mi/. tb_. iioaiul«Tli>A nf Pint llUPl frir hia si A-
, and the confiscation of his pro- i Uou to the rule is that persons in the land' or naval
It- I peny IU ma num* jivmimtj . j , lotion, uuu JWUU sss miv uu»<h> ***
n't uund, aoul and body are given to his l thiB is what Congress lias attempted to do, but upon Woe in Unit: of war or public da nyer may be held to
“f'kbors; and by these labors, protected
rights of property in, and the emolu-
um ~ k J "' u “‘
office become vested interests. What
interacts'. They have been de-
■W'l -tinritou Rep,” 332. A vested
: . “ ‘ when a man has the power to
®tt~f 5 . cti0Ii3 to to possess certain things, ac-
: i a r , ot “ e la w of the land.” This power is tak-
£:■ * n( i he is divested of hisvested
by the law of the land and the
ion of the country by this test Oath Act,
I' W Jrthch disclarcs, as already noticed, that
be deprived of life, libsrty or property,
i process of law
l‘«i'itr,? ro ? < ' a . t ' on This is an ex post facto law,
■ w.;,. at "ution expressly prohibits Congress from
, P° st f act o law What is an ex post
'ta-hj. ■ k'‘ n £ Rn ac' punishable which was
l^/acto " at t ^ 6 time 't* commission is ex
I'-' IU >ee 1 Kent, 406; 3 Bell, 386; 6 Cranch
V na °rtme charged'? What the act
t;,-, 1 ^hich, by this cunning contrivance of a
] '•’ it ?. e . 10 'Lsclose and punish. Not treason.
I “t^hed by impeachment and trial by
I \ : ,J ‘ 'aw but for imagined offences, sup-
| Sir m ome Mors 1 the natural emotions of hu-
* 'Apathies of a father whoso son was
^toffering.jthese are the offenses,
| ^'o take an oath is made the evi-
- an <l hie property taken without trial
I Senses which had no legal penalty
commission. .
n ^S l ^ ere ^° r ° ' 3 ex P° st Judo, clearly forbid-
p 1 ' i^ ^o^ti’Ltiiuon, and consequently inopova-
1Miichf 6 , ?? °I January, 1865, there was no
Ijjflu ?rteited the property of the attorney in
is WnV* 3 em °* U2l ent» for crime, and if there
I oi' ^ ° D ^ kave been enforced by due
I o' Sr* t * 18 gebrteman made a forcible ap-
| import r ^ we are not able to do justice to in
I ,'tivc. onl • proocedillgf, we ek'd! not attempt.
|Lament J "n imperfect sketch of the line
Ik “'ti&z ii,n g i red from imperfect notes, our ob-
ia th. 40 PtiLfy our readers who are in-
question.
foUow ?4 by Ex-Gov. Brown, whoee
•AVs entire:
what principle and by what right? Ifhe has been j answer without suoh indictment or presentment of a
guilty of a crime it it the right of the Government to grand jury. Nor can Congress deprive any person
havo him prosecuted, convicted and punished by j (not without the exception) of life, liberty or property,
the judgment of hia peers or to the law of the without due process of law. Congress may by law
lend ; but without such conviction tho infliction of ; provide for the forfeiture of tbe estate of a person at-
corporeal punishment upon him, or the confiscation of ; tainted of treason, but then only during his life tiino.
his estate, or any part thereof, is unsuthdrized ty- Tboro cau bo no forfeiture even lor treason till -there
ranny ; nor h&B the Government any right to compel is a eonviotlou, and the moment the person convicted
him to appear and give testimony against himself, to is executed tbe forfeiture is at ah and. And as there
aid it in procuring such conviction, yemo tenebatur
proders se Ipsum is the well established rule of tho
common law, and is thus expounded by a very able
and accurate American author: That when the an
swer will have a tendency to expose the witness to a
penal liability, or 40 any kind of punishment, or to a
criminal charge, or to a forfeiture ot his estate, the
witness is not bound to answer. And if the fact to
which he Is interrogated forms but one link in the
chain of testimony -which is to convict him ho is
Droteoted. And if the witness declines answering, ho
inference of the truth of the fact is permitted to be
drawn from that circumstance. [1 Grecnl. Ev., see.
*51-153.)
The Constitution of the United States, as originally
formed, contained no provision guaranteeing to the
oitlxen protection against the violation by Congress of
this great first principle. But thia protection is care-
fully provided In the fifth article ot tho amendment,
proposed-at tho first session of the first Congress,
wIrish was adopted in these words :
No person shall bo held to answer for a capital or
otherwise infamous crime, unless on a presentment or
can be no corruption of blood, the estate, if inherita-
atoly
ble, immediately descends to his legai heirs or do-
vtsees. In no other instance that occurs to me uow
does the Constitution give Congress the power to for
feit the estato or property ol any One, lor any alienee
whatever, except in the case 6f jfidges and other offi
cers, on conviction on impeachment, which works a
forfeiture oi their- estates iu their offices, but of uo
other property or estate, aud never before conviction.
Congress has, therefore, no right to deprive any
lawyer ol his estate in hia office, or of any- other
property (not needed for public use upon
just compensation) until he has been convicted. Nor
has Congress any right to make him a witness to
prove his owu guilt, or to drqw any inferenoe ot ius
guilt from lus refusal to answer. [7 Porter’s Reports,
But suppose I were to admit that Congress doe* pos
sess this power in time of war, and. that the act was
valid during the war, how does that deprive the. law
yer of his oificS now ? The war is at an end ; and so
proclaimed by our uoblc, patriotic President, whose
bold stand iu fovor of the restoration of constitu-
oHence shall have the assistance of counsel tor his de
fence,
This law is not onlv in tbe nature of a bill ot attain
der. which is forbidden by .the Constitution, but it is
clearly air ex posl facto laiU as well, when applied to
attorneys of the Court, or to applicants for admission
to practice. Au ex post facto law is thus defined by
Mr. Justice Chase, delivering the opinion of the Su
preme Court of the United States iu the rase of Colder
and wife vs. Bull and wife. 3d Dallas, 386. •
This is a highly penal law; it excludes, unless its
terms are complied with, all persons from practicing
us attorneys and coctnaellora at law-in tho Courts of
this State. It must, therefore, receive a strict con
struction, in accordance wjfh well established princi
ples, and the authority to pass it hit-clearly and
fairly discoverable from the ConsttMion. And on
pp. 380: It is so offensive to the first principles of
justice to require a man to give evidence against
himself in a penal case, that independent of the Con
stitutional interdict, no one in this enlightened age
will be found to advocate the principle. But it muy
be said this is not a case of this kind, as no corporeal
Every Jaw that makes' an action done before the i « pecuniary punishment is tbe consequence of a re
passing of tho law*, and which was innocent when ! tusal to take the oath against duelling. But are not
done criminal, and puniahes such action. I the results the same, whether punishment follows
Every law'that ttapi’treot«i_a^or//iie. or makes it from the admission, or is imposed as a consequence
of silence. Can ingennity make a distinction be-
UlUOiniDW UUNUUUi) U1UU, UUtCM UU • j/ioso—— Gnn, l liKo’ in el , .
indictment of a grand jury, except casks arising in uonai iinei ty to tlie whole cauntry wLl endear his
the land or naval forces, or in the militia when in ac- ' name to posterity when the. marble which may be
tual service in time of war or public danger; nor shall placed over bis mortal remains -shall have crumbled
any person bo subject for the same offence to be twice I ' u dust- t he war is not only at an ond, but the whole
put tn jdbpardy of life or limb; nor shall he be j-South has acquiesced in good faith in the results ;
compelled In any criminal case to be a witness \ aiidher aotiE.v’liosehonoiia as stainless as their gal-
against himself, or bo deprived of life, liberty, or
property without due process of law; not- shall private
property be taken for public use without just compen
sation.
This Is the fundamental law of this land, and-any
act of Congress In violation of it is inoperative, ntfll
and void, and it is the solemn duty of the courts so to
declare it. And I beg your honor to bear in mind that
this article of the Constitution not only denies to
Congress the power to compel any one to be a witness
to criminate himself; but it declares plainly and pos
itively, that no one shall be deprived of lire,- liberty,
or property without due process of law, giving
property precisely the same protection which it gives
to life or liberty.
Has an attorney at law a property in his profession ?
If so the Constitution of the United States, as well as
Magna Charta declares that he shall not be de
prived of it without due process of law.
An attorney at law Is an officer belonging to the
courts of justice; [1 Bacon's Abr. -474.J An officer
Is on* who is lawfully Invested with an office. [7
lautry upon the battle-field ,was conspicuous, have
pledged 'hat honor, under the solemnity of an oath
tor their future loyalty. - That pledge will never be
violated. I think your honor will not accuse me of
vain-boasting when I say -1 know something of the
feelings and sentiments of the people of Georgia, and I
tell you to-day that, whatever may have been their opin
ions as to the original abstract question of the right
of secession, they have abandoned it forever. Since
tbe day* of Jefferson and Hmmilton.it ha* been, so to
speak, a litigated qiasstion, and there was but one
court which had jurisdiction to prfinounce an author
itative decision in the case—that was the- high Court
of Appeal*, recognized by all nettops ms of universal
Jurisdiction, where grave litigated question* between
States or communities, that no other conrt has power
to adjudicate, are in the last resort decided by wsger
of battle.' This case has been' carried before that
court. Both parties were ably repransultfl The case
ia decided; the jndgmeafi’ls against ns. We have
already paid an -cnormorei bill of cost. But we ac-
qtdOsce in the result, and swear before Heaven Sad
yti trill abide by it in good faith.
greater than it was when committed.
Every law that changes the punishment, and in
flicts a greater punishmenr thnu the law annexed to
the crime when committed.
Every law that alters the legal ruls* of evidence
and receives less or different testimony than the law
required at the time of the-commission of the offence
in order to convict the offenders. Sse also l Kent's
Coni. 408. Sergeant on Const, Law, 356; Bmlth’s Com.
on Const. Conttruction 372.
Ill Fletcher ivi. Peck 6, Cranch Reps. 133. Chief
Justice Marshall delivering the opiniou of the
Bupreml Court of the United States, says.
All <v post facto law ie one which renders an act puu-
ishable in a manner in which it waa not punishable
when it was committed. Such a law may inflict pen
alties on tlie person, or may inflict pecuniary penalties
which swell the public treasury. The Legislature is I
prohibited from passing a law Dy which a man’aestate
or o ny part at it, shall be seized for* crime which
was not declared by some previous lsw to render him
liable to that punishment.
Iu tho case of Ross (2 Pick.. 169) it waa held that if a
statute add a new punishment, or increase the old
one, tor an offente committed before ite passage, such
an act would be ex post facto. The party ought to
know, says the conrt, at the time ot committing the
offence the whole extent of the punishment.
Now-1 beg the conrt to bear in mind that tho act ap
plying tbe test oath to attorneys at law was passed on
the 2*th of January, 1865—very near the end of the
struggle. It fixes no period of time, as that he has
Dot aided the rebellion siuce the date of the act, but
it is general. The language is, That I have never vol
untarily born arms, Ac., embracing the whole period
of hia life. Now suppose the lawyer. o» the applicant
for ^mission, did bear arms against the Government,
orllid aid, or countenance those who did in 1861, ie
not this an ex post facto law he to him? Waa the for-
feiture’bf hie property in hi* office, or of his right of
being admitted to the: office on complying with the
rulie prescribed by tbe land, any part of the penalty
enacted by the court, any P ar * of the penalty
enacted by Coqgresa against the officer, at. or before
the time of ite commission? It certainly was not It
formed no part of tho penalty till the 2*th of January,
1865. This, then, 15 a law that repeals no part of the
penalty prescribed by.law against tlio officer in 1861;
it only adds to the penalty already .a existence the
forfeiture of his right to practice law in-the courts of
tho United States, or, ip the language of Mr. Justice
Chaao, it inflicts a greater pur.ishntent thau the law
annexed to the crime whou committed. In addition
to the old penalty, it seizes and forfeits hia estate in
liia office, which could not be done, because no pre
vious laws, in tho language ot Chief Jiietioe Marshall,
“rendered him liable to that punishment.” And in
the language of the Supreme Court of Massachusetts,
in Rose’ case, above cited, if itdoes not increase the
old, it “adds a new punishment”. fSi*n offence com
mitted before ite passage. How coffid the attorney, at
the time of 'committing the offence in 1861, know, in
the language of the last named court, the whole extent’
of the pun ishment which was npt prescribed till Jan
uary, 1865? It ia also ex post facto when tested byth*
fourth rule laid down by Mr. Justice Chase. It changes
the legal rale of evidence and receives less and differ
ent testimony than thslaw required at tbe time of the
commission of the offence, to convict tb* offender; in
this, that it makes his bare refusal to answer on oath,
whether he has or has not committed the offenc* con
clusive evidence of his guilt, and is in effect a judg
ment of forfeiture.
tween a punishment inflicted in this modo, as a con
sequence of a refusal to take the ontb, by closing one
of the avenues to wealth and fame, and a positive
pecuniary mulct? If there is a difference, I think
it entirely in favor ofthe latter, so far as the amount
(he case. On page 381: With great deference to the
opinion of others who may differ from me, I think that
the requisition by the legislature, in substance and
effect, requires the applicant for a license to give ev
idence against himself; and that if not within the let
ter, is at least within the words of 1 the prohibition—
tbe very foundation of which is that every one is pre
»umed to he innocent till the ’contrary appears.
He then refers to the Constitutional provision that
the crime or offence must be ascertained by due course
of law, scad says: The term “due course of !*•”
has a settled and ascertained meaning, and was in
tended to protect people against privations of their
lives, liberty, or property, in any other mode than
through the intervention of the judicial tribunals of
tbe country. But the law seeks to ascertain a fact
exalted into a crime and punished in a particular
manner ’'met by the judgment of a competent cqurt.
hot by tho admission of the offender, and construing
his silence as evidence of guilt.
'In a case of Greene vs. Biggs, 1 Curtis, Circuit
Court, reps. 325, Judge Carter, of the Supreme Court
of the United States, presiding in the Ciictait Court,
defines irthat is meant by the law of the land. He
says: Certainly, this does not mean any act which
the Assembly may choose to pass. If it did the
legislative will could inflict a forfeiture of life; liber
ty, or property, without a trial. The exposition of
the words as they stand in magna charta, as well as
in the American Constitution, has been that they re
quire “due process of lsw,” and in this is neossaarily
implied and included the right to answer to and con
test the charge; and the consequent righfcto be dis
charged from it, unless it ia proved. LoHPCoke, in-
giving an interpretation of these, words in magna
charta, 2 Gart. 50 to 51, says they mean “due pro-
cea of law,” in which is .included presentment
or indictment, and being brought in tb answer there
to And the jurists of our country have not relaxed
this interpretation. It follows, says he, speaking of
the case before him, that a law which would pre-
clade the acensed from answering to and contesting
the charge, * * * * and which should con-
ifomn him to fine and forfeiture unheard, if he
failed to comply with the requisition (to give seeu-
tggr) would deprive .him of his liberty or property—
not by the law of the land, but by an arbitrary and
unconstitutional exertion of legiriktive power.
judge Pitman, in the same ease, refers to the fact
that the statute under consideration rendered any
one engaged in selling spirituous liquors an incom
petent jarer, and authorized the question to be pro
pounded to him, and aays .-
This lew authorises the oourt tp inquire of tbq ju
ror who may be dthllmgiil outhis account; Sis
tion to any one pardoned before trial or conviction.
It certainly follows, then, that the property of an
attorney in his office which was not forfeited prior
to his pardon, cannot now be forfeited for the of
fence for which he was pardoned. In support of
this position I quote the following authorities:
It seems agreed that a pardon of treason or fel
ony even after an attainder, so far clears the party
from the infamy and all other consequences thereof,
that bo may. have an action against any one who
afterwards calls him traitor or felon; for the pardon
makes him as it were a new man.—7- Bacon’s Abr.
416.
Tho conrt will please note the language, that the
pardon, oven after an attainder, clears the party
from the infamy, and all other consequences there
of. A much stronger case than the one now at
Bar, unless the act of Congress impos
ing the test oath is held by the
court to be a bill of attainder, and
if so, it is unconstitutional and void. But if the act
is not a hill of attainder the pardon granted before
conviction or attainder legal must nocessarily lenve
the party in the precise loyw* status, which he
ucciipied prior to the commission of the offence
It was formerly doubted whether the pardon could
do more than take away the punishment leaving the
•-rime and its disabling consequences unremoved —'
•tut it is now Bettled that a pardon whether by the
Kingor by act of parliament, removes not only the
punishment, but all the legal disabilities conse
quent on the crime. 7 Bacon abr, 415; 2 Russell on
crimes, 975; Hob, 6781; 2 Hal’s P C, 272;2, Solk, 690;
1 Lord Ravm, 39; 4 State Trials, 681; Cas. Tenp
Holt, 683; 5 State Trials, 171; Fitizg. 167.
The effect of aech pardon by the King is to make
the offender a new nun, to acquit him ot alt corporeal
penalties, and forfeitures annexed to that offence,
tor which he obtains his pardon. 4 Black stones
Com. 402.
I might add other authorities, bnt deem it un
necessary. Those already quoted establish the posi
tion beyond controversy, that the effect of the par
don is to acquit the offender of all penalties and
The terms of capitulation, have not only lieen
agreed upon in thia case. But the civil Dw is at
an end. Tho flinquishcd have in good faith com
pliod willi thoso tonus on their port. Tho Northern,
construction of the Constitution is eateblished, and
slavery is forever abolished. Tho amnesty has boen
published and accepted. Then, in the language of
this distinguished author, the “past should bo buried
in obliviou,” and neither Judge Law nor any one
else should be called to account here or olsowhcro, by
test oath or otherwise, for what was douu by him iu
accordance with the usages of civilized warfare,
“during-the disturbance.”
This view of this question has also the sanction
and author:'.'.- "f Diyiio Inspiration. In the Bible
tho dUtiucliou between tho blood of war and the
blood shed in peace, is clearly drawn—the binding
obligation to carry out in good faith an amnesty
once tendered and accepted is enforced—and the in
fliction of punishment upon the party who has re
ceived the pardon or amnesty for acts dono during
the war, is condemned.
After the death of Saul, King of Israel, -war ex
isted between his son as his heir, aud David, the
anointed of God, about the succession to the throne.
Abner commanded the forces of the sou of Saul,
and Juab those of David. A battle was fought, ui
which Joab was victorious. While Abner was re
treating, he was followed by Asahil, the brother ol
Joab, who, aftor having boen warned to desi3t from
tho pursuit whioh he refused to do, was slain by Ab
ner. Aftor this Abner sought an interview with
Kiug David, recoived amnesty, and was sent away
in peace.
■ On learning this, Joab was greatly displeased, and
without the knowledge of tho King, sent and
brought him back and slew him because he had slain
his brother in battio. Iu othcr words, Joab slew
Abner after he had made peace with tbe King, be
cause of on act done during the war.
At a later period in King David’s life, his son
Absalom rebelled against him, and drove him from
his throne, and without just cause plunged lira,;
into civil war. Absalom made Arnasa the leader of
his forces; and the forces of King David were lei by
Joab. Before the battle commenced, King David
gave strict orders to Joab, that neither he nor any
of his men should harm the person of Absalom.—
During the battio Absalom became entangled by his
hair in tho boughs of a tree, where Joab iound him
and slew him, in violation of the King’s orders,
though peace had neither been made, nor had Ab
salom boen pardoned, nor did the act violate any of
the then usages of war. King David
wept bittorly over the death of hia rebellious son.—
Afterwards Arnasa who commanded the armies of
Absolom during the war was pardoned by the King,
and placed in command of his forces, in an expedi
tion against Sheba, who had raised an insurrectiou
J oab mot Arnasa oh the march, and- smote and slew
him. ‘ *
King David was a man inspired of God, and is
said to have been a man after God’s own heart. He
was a warrior most of his life; and understood
both the rules of war, and the Divine will upon the
subject. Finally he lay upon his duath-bed on the
brink of tho gravo and the verge of eternity. In
this solemn hour with full knowledge of his condi
tion, filled with the spirit of inspiration, he gave his
memorable charge to Solomon, his son, who was to
succeed him upon his throne. In that charge
among other things he cotomanded him to slay Joab,
or in other words not to let his hoary head go (town
to the grave in peace. Not because ho slew Absa
lom, the King’s son in violation of tho King’s order.
The blood of Absalom was shed fn battle ; it was
therefore the blood of war; and much as it grieved
the King’s heart, he remembered it not
open his death bed, against Joab os a crime. But
Joab had slain Abner and Arnasa after the war, ip
each case, was at an ond, and they had made peace
with the King. For their slaughter David ordered
Solomon, his son, to take the life of Joab. Why ? in
Divifl’s own hncmiira. hnnuum hn fihprl hl/wxsi
weight iff the penaltyomild effect the ffiMUtenTor
lusively that the attorney or applicant for admission
t > the bar who has reeeived a paiMon, before indict
ment or conviction, stands before this Court in pre
cisely the condition in which he would have stood;
and with all the rights whieh he would have had, if
he had never committed the offence. To hold that
Congress can change this, is to hold that Congress
haa power to. distroy the pardoning power vested
by the Constitution in tho President of the United
States alone. I trust I might safely rest this case
here, but before I taka my seat I desire to make a
few remarks on the law of nations as to the relative
rights and duties of those who were lately at war
with each other. In doing so I shall carefully avoid
any expression intended to. re fleet upon any one in
position, or any reference to present party divisions.
Suffice it to say that after four long and dreary
yean of bloody conflict, Gen. Lee surrendeerd his
Army, amt tendered his sword to Gen" Grant
The latter with a magnanimity that if he had done
no other great ilosd.miiit have immortalized his name
in history; appreciating the ability, the merit and
the motives of his great antagonist, returned it to
him as reported, with the kindest expressions, say
ing: you are not conquered, but overpowered by
superior numbore and resources. And in this con
nection, excuse me for saying in this place, that the
Soutlarn people- ewe a debt of gratitude to General
Grant for the firmness with which ha .has stood by
tbe terms ot the capitulation; the liberality which
has charaeierteel his whole conduct tine* that time;
and- the many nets ef kindness which he has per-
forzfied tor Southern man in adversity and distress.—
All these shows the nobleness of his nature. Soon
after this surrender, President Lincoln fell a victim.
under the hand of the black-hearted, bloody assassin,
and the present excellent Chiof Magistrate was
called to tho position at a most critical and trying
period.in our history. As a Southern man who had
stood by ih* Government during the straggle, he
had been bitterly denounced by the whole Southern
David’s own language, because bg shed ‘‘the blood
of wartn peace.” This showed tho obligation which
in the estimation of this inspired man, rested upon
'the victor, after he had made peace and extended
amnesty ; to protect the rights of the vanquished ;
and to maintain the utmost good faith in carrying
out the terms of the capitulation The fact that
Abner had slain Joab’g brother in battle was held to
be no justification, for the slaughter of Abner by
Joab after tho war was at an end. The slaughter
of Aaahcl was the shedding of the blood of war. The
slaughter of Abner was the shedding of the blood of
war in peace. The first was justifiable homicide, th*
•second was murder.
In conclusion, I have only tn add that I have
•litisfied my own mind, and I trust tbe mind ofthe
Court, that the statute requiring tbe test oath is in
violation ofthe Constitution of the United States,and
is for that reason void. And that the Divine law
and the laws of nations agree, that when war is
at an end, and peace is proclaimed or amnesty aud
pardon granted to the vanquished as to tbe appli
cant in this case,” all the past must be buried in
oblivion, aud no one should he called to account
for what was done “during its continuance.” 'And
that he who forfeits the property of those who have
inado peace; for nets done during hostilities, violate
the law of nations ; while he who sheds the blood of
those who have conformed to tb* terms of tho capi
tulation after hostilities havo ended, “sheds tho
blood of war in peace,” and violates not only the
law of nations, but the law revealed by the living
God.
At the conclusion of Gov. Brown’s argument. Dis
trict Attorney Fitch applied for further time in which
to prepare his reply, and one week was granted him.
The Court then adjourned till 10 o'clock thia morn
ing.
people. Without knowledge of the loftiness of his
soul, the expensirencm and intensity of hi* petrio-~
tiam, snd th* puritytof hia motives, they shook with
anxiety end fear when he grasped the helm of
power while they lay prostrate at his feet. Had
there been vindictiveness or revenge in his motive,
’hr had his mind been cast in a smaller mould, the
still have teen drenched in blood
niter tho thunders of battle had been hushed—the
South would have been utterly ruined, %> prosperity
of the whole country destroyed,- god re-union with
fraternal feelings would have been an impossibility
for generations to tome. But riring above nil per-
aoul tod nUUi oonsidiratidna, ond
looking *1
to the good of the whole country, he ismedmsPro-
ITATK ITEMS.
—The WsyuteliiWe Mews thus Will**
The good people of Waynuffiara pn pow enjoying
the only luxuries left them by the war, trie; flees, old
clothes, poverty, snd dirty streets.
—Chattanooga has sold its water-works to s privets
company, who agree to enlarge them.
—A young woman gsv* birth to a child in Macon,
Ga., a few days ago, aud it is supposed committed
suicide, aa she has not been heprd from since.
—A thief demanded a.gentleman's pocket book in
tho street at Macon, some nights siuce. The gentle
man killed hint on the spot.
—The name of the Savannah snd Memphis railroad
hss been changed to that of “Opelika end Tailed age
railroad.'*
—The Augusta Chronicle snd News says: It is grati
fying to learn from the official reports ot the proper
city officers, snd from other credible sources that tit*
email pox is rapidly ffimjltishing in tits city and vi
cinity. Daring-tits month of May the whole number
treated by tbe smell pox physician ot th* city, in and
out of the hospital; was one hundred and nine, of
which sixty-six‘were hospital patient*. There were
twelve death* from email pox during the month at tits
hospital, and four in private quarters. There are lkw
cases outside the hospitals, and our, friends who de
sire to visit the city at the approaching Railroad Con
vention need fcel no apprehension on account of the
•rrTfae young girl, Isabella Friend, believed to be
from Macon, of whose sad condition we made brief
mention' last week, remains at the City Hospital a
raying maniac. She ia aald to have become so violent
that it is necessary to kmp bar heeds tied all th* time;
end that she has eaten nothing, nor has she slept for
several days. Her history ia unknown here, but
enough has transpired in her ravings to establish th*
fact that she hks been victimized by some hearties*
wretch whoa* Mark soul should henceforth know no
rest Rapidly approaching maternity, and having
doubtless abandoned home snd tetrads to hide her
shame, her present condition is pitiable indeed, if not
tomvcrMcsL We learn that in her man rational
moments she beseeches her attendants to snd th* Ms
that now must' be s burden to bar. If *fc* has friend*
they should com* to her now, though death, pnrhans.
would be more welcome thou them ell—Atlanta Jn- ■
teUigencer.
—Such is the cupidity
Faria hospitals, stiamtete
ment a «-—*v- petienafllM
cutoff. One taste «3*a
have mad* WO frsnqs
daed patients fiTST
pwnk—— ef
ompffJMh,
v V •: v'“
Hem