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VOL. 2-NO. 104. SAVANNAH, GEORGIA, FRIDAY, MAY 11 * 1866. PRICE, f CENTS. *»* Dailv News and Herald, PUBLISHES BY MASON. 511 Eat Stbket, Savannah, Geo Tinus: : Five Cents. pie Dollar lor each subsequent one. 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