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VOLUME XXXVI.]
MILLEDGEVILLE, GEORGIA, TUESDAY, MAT 20, I860,
NUMBER 43
BOUGHTON,NISBET,BAR\ t E & MOORE
Publishers and Proprietors.
m. IV. BOI’GIITAV,
joa. II. IVISBK r,
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charged as transient advertising.
Leoal Advertising.
Sheriffs sales, per levy often lines, oi less,
“ Mortgage fi fa sales per square,-
Tax Collector’s Sales, per square,
Citations for Letters of Administration,
“ «« “ Guardianship,
Letters of application for dism’n from Adm’n
»« “ “ Guard’n
Appl’n for leave to sell land,
Notices to Debtors and Creditors,
Sales of land, 4-c.,per square,
“ perishable property, 10 days, per square
Estray Notices, 30 days,
Foreclosure of Mortgage, per sq . each time,
LEGAL ADVERTISEMENTS.
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Goveraar J«»rph E. Br»vi'i Argument on
the Law,rr'a Te«l Oath, before Judge
Erokine, of the Enilrd Sllalr. Dialrict
Court for Ceorgin, at Navannnb.
In tlie United States District Court,
Thursday, Judge Erskine, according to
appointment, heard t lie arguments of
Judge Law and Ex-Gov. Jos. E. Brown
upon the unconstitutionally of the Test
Oath, as applicable to lawyers ; the ques
tion having arisen from the motion of the
Hon. Wrn. Law, to be permitted to con
tinue his practice in the Court in which
he had practiced for forty nine years,
without taking the oath.
May it phase your Honor :
I am well aware of the great impor-
tinceof the question now under considera
tion. He who detiies the validity of a
solemn act of Congress on account of its
unconstitiitionglily, should do so with
diference and respect for the department
of the Government by which it is enacted,
as well as for the judicial tribunal which
is asked to declare it null and void. I
trust I approach this question in a proper
spirit, and with proper motives. In what
I have to say I state in advance, that it is
not my intention to reflect in the slight
est degree upon the conduct,’ or to question
the motives of any officer of the Govern
ment. After the scenes of anarcbv and
ciary, whose duty it is to hold the scales against the violation by Congress of thic
of justice in equipoise, as well between great first principle. But this protection
the citizen and tlie Government, as be- is carefully provided in the fifth articlo of
tween citizen and citizen, will vindicate the amendments, proposed at the first
the majesty of the law, and maintain the' session of the first' Congress, which was
good faith and justice of the Government, adopted iu these words :
by declaring all such enactments as vio- No person shall be held to answer for a
late the fundamental law, inoperative, null," 1 capital or otherw-ise infamous crime, unless
and void. | on a presentment or indictment of a grand
Let us apply these great principles to jury; except cases arising in the land or
the case now before yonr Honor. An 1 uaval forces, or in the militia when in ac
attorney of this Court, whose name has ; tual service in time of war or public dan-
appeared upon the rolls as an officer of j ger ; nor shall any person be subject for
Court for nearly fifty years, whoso private | the same offence to be twice put in jeo-
and professional character are of the most i pardy of life or limb ; nor shall he he earn
elevated rank ; who has filled with distiuc- j pel led in any criminal case to be a witness
tion the position of a Judge; who was a ■ against himself, or be deprived of life,
Union man as long as there was a possi i liberty, or property without due process
bility of preventing the rupture; who I of law, nor shall private property be ta-
never bore arms against the Government I ken for public use without just compen-
of the United States, or hold office under j sation.
the Confederate States ; who has violated j This is the fundamental law of this
no rule of the common law ; committed : land, and any act of congress in violation
no contempt of Court ; collected no money ! of it is inoperative, null and void, aud it
which he has refused to pay over; acted ! is the solemn doty of the courts so to de
in bail faith to no client; nor has he been i clare it. And I beg your Honor to bear
charged, indicted, or convicted under j in mind, that this article of the Coustua-
any penal law of this State, or of the ! lion not only denies to Congress the power
United States ; and has received a full • to compel any one to be a witness to crimi-
pardon fiom the President of the United j nate himself, but it declares plainly and
by laws provide f«rr the forfeiture of the
estate of a person attained of treason, hut
then only during his life time. There
can be no forfeiture, even for treason,
till there is a conviction, and the moment
the person convicted is executed the for-
cident to the office of sheriff, and could not
by any law or contrivance be taken away
from him.
If the King’s grant of snch incident of
fice was void, and so held by his own
courts, and it could not be taken away
from the principal office by any law or ' feitrirfe is at an end. And as there can be
contrivance, it follows that the King and ( n0 corruption of blood, the estate, if in-
Parliament together could not rightfullyj heritable,immediately descends to his le-
do it \\ here then does the Congress of gaTheirs or devisees. In no other instance,
the United States, restrained by a written (hAt occurs to me now, does the Constita-
Constitution, get power to do that which i Don gire Congress the power to forfeit the
the King and Parliament together in Great ! estate or pr0 p e ity of any one. for any of
Britain,-without such restraint, have no ; fence whatever, except in the case of
power to do ? 1 lie office of county clerk judges aiu f other officers, oil conviction on
in England which from time immemorial impeachment, which woiks a forfeiture of
ha-s been in incident of the office of Slier j {heir estates in their offices, but of no oth-
itl, is certainly no more inseparably con- \ er property or estates, and never before
ueeted with the sheriff’s office than is the conviction.
office of attorney in this country with that j Congress has, therefore, no right to de-.
of the courts, and yet the transcendent| p r j ve an y lawyer of bis estate in his office,
power of the King and Parliament cannot, j 0 r of any other property, (not needed for
without the utter disregard of all principle j public use upon just compensation) until
and precedent, deprive the principal office j he has been convicted. Nor has Congress
of the control of the incident. | any right to make him a witness to prove
I do not deny that Congress may lay bis own guilt, or to draw any inference of
down general rules regulating the proceed- j 1)is own puilt from hi 8 refusal to answer.
confusion through which we have passed,
1 gu : I feel much gratified to see military rule
j ovee more give place fo civil; and to see
1 the courts once more thrown open for the
Sties of Lind, See.., by Administrators, Executore or ; redresg of grievances and the general ad
Guardiaus, are required by lawtB be held on the lirst .. . . b „ . . T , ° .
Tuesday iu the month; between the hours of 10 in the ' ministration of justice. 1 trust they may
forenoon and three iu the atteruoou, at the Com. house . never again be compelled to give place to
in the couuty in which the property id situated. . -l , .... i r\c
Notice of these sales must be given iu a public ga- J military tribunals, or military rule. Of
•ette 40 days previous to the duy ot sale. the peace and quiet which is being re-
Notices for the sale of personal property must be | sforc ,. tf) t))e cnuntry I wou lJ Kay as ,| ie
given in like maouer 10 days previous to sale <laj. | .. t J . .
Notices to the debtors and creditors of an estute groat English Commentator says ot his
must also be punished 40 days. .j government, Estu perpetual In the dis-
Notiee that application will bemadetothe Court ot , ° . , . 11 .
Ordinary tor leave to sell Land, Ac.,must be publish- I CUSSlon of this question I am satisfied teat
ed for two mouths. ! reason and authority are more in demand
CUaUon* for letters of Administration Guardians!,,p, j dcc l amation or even eloquence. If
States for any and every act which might, J positively that no one shall he deprived of\ ings of the courts, and the conduct of! ry Sorter’s lieports, 3S1.J
even by implication, be construed as a , life, liberty, or property without due pro- j attorneys; but I do deny that it cau, with- But sup
Ac., must be published 30 days—for dismission from
Administration, monthly six months—tor dismission
from Guardiaustiip, 40 days.
Rules for foreclosure of Mortgage must be published
monthly for four months—for establishing lost papers,
for the full space of three months—for compelling titles
from Executors or administrators, where bond has
been given oy the deceased, the full space ot three
months.
Publications will always be continued according to
these, the legal requirements, unless otherwise or
dered.
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COUNTING HOUSE CALENDAR, 18G6.
isavsT”
MS,
I? 3 ! «.
3 = = 5 £. c , c.; a
O a o' s' 2 1 5 '>< 3.
2 -•* ? " i g-i: :-5
3 i ilii« ?i;!i
cd I • I • J • j; ; : : I
jj_|! _____
Ja.s’t. 1 2 3 4 5 CJi-LT.
7 8 9 10 1] 12 13.
14 15 16 17.8I 9 20i
21 22 23 24 25 Z6*7j
.>28 29 30 311 I
1, 2 3
I possessed the latter, which I do not
claim, this is not the proper occasion for
its display. As I have copied most of the
authorities which I cite literally, and as
they are numerous, and I have, not access
at present to 6ome of the books from
which they are taken, I shall read them
with the exception ot some three or four,
from the manuscript copy which I have
before me.
It is solemnly declared in the great
charter of English liberty, that no tree-
man shall be taken, imprisoned, or dis
seized of bis freehold or liberties, or free
.customs, or be outlawed or exiled, or
otherwise destroyed or condemned, but by
lawful judgment of his peers, or by the
law of the land.
Judge Blackstone says of this provision
in the great charter, that it protected eve
ry individual of the nation in the free eu-
joyment of his life, his liberty, and his
property unless declared to be forfeited by
the judgment of his peers, or the law of the
land. [Com. v«l. 4, page 424.J Again,
iu vol. 1, page 139, he says: And by a
variety of ancient statutes, it is enacted
! that no man’s lands or goods shall be seiz-
i ed into the king’s hands against the great
' charter and the law of the land; and that i
no man shall Le disinherited, nor put out j
• • ; ; ; : 1 of franchises or freehold, unless he be |
duly brought to answer, and be forejudged \
1 2 a, 4 5 6 7 1 by course of law; and if anything be done |
8 9 10 II !i? | to the contrary, it shall he redressed aud i
15 16 17 18 19 20 21 .. , - ’
• X £
.111 r i “
s
rt
holden for none
Mr. Vattel, in his standard work upon 1
•’r ,! rI J 7! s ! 9 lo AtcrsT 5 6",^ d '«!' 1 the law of nations, page 33, while treating i
it 1213 14;!5'l6 17 !« J?21 22232425 ' ‘lie principal objects of Good Govern
262728292031 [mint, says: The society is established;
2-J 23 24 25 26 27 28
29 30 31 jl 2 3 4
8 9 lo II
18 19 20 21 22 23 24
25 26 27 28 j i j
4 5 6 7 8 9 1" Sept’r
11 12 13 1445 16 17
18 19 20 21 22 23 24
25 26 27 28 29 30 3b
I ' i 1 ' ' ,
Arm i 2 a 4 5 6 < OcToa r
, 8 9 10 H 12,13,14
15 16 17 18 *9:20 21)
22 23 2* 25 26.27128)
Soiaoj lit I.
! l 2 3' 4: 5,
I 6 7, 8 9 10 11 12 Novr.
13 1415 16 1718 19
i20 21 22 23 24 25 2i>
•27:28 29 30 31, J
3 4i 5 6 7 8 1 9 Decem
10 11112 13 14 15 16
17 18 19 2021 2223,
124 25 26 27 28 29 30
„ _ „ * with a view of procuring to those who are
o 3 4 5 0 7 8l. , . 1 t? .
- jj, j, jw 13 15 ; its members, the necessaries, conveniences,
16 17 18 19 2021 22 and even pleasures of life, and, iu general,
23 24 25 2t>2/ 28 29 | ev g ry thing necessary to their happiness
f enabling each individual peaceably
1 2 3 4 5 6
Mat.
Junk.
h 9 10 II 12 13 : t 0 enjoy his own property, and to obtain
it 22-23242526 27 ; justice with safety and certainty.
28 29 3<i 31) | ) j Again, he says: The State ought to
t 2 3 eDcoura ge labor, to animate industry, to
a ft 6 7 o y Id • 1
' 1
45678
1,1213 14 15 16 17
18 19 20 21 22 23 24
25 26 27 28 29 30
■ , ! V I J
8
o' 3! 4, 5 6
q 10 II 12 13 14 15 1
li; 17 18 12 20 21 22
23 24 25)26 27 28 29 ;
« 31 ! Mil
SPRING & SIMMER GOODS !
A. NEW Stock, just rcceiv.O,at
H. TIN8LEY’8,
Agent
MilledgeviUe, March 12th, 1866.
32 ti
J. W. RABUN & CO.,
AND
COMMISSION MERCHANTS.
140 BAY STREET,
SAVANNAH, GA.
J. W. Rabun,
P. H. Wood.
April 24th, JH66.
38 tf
L. CARRINGTON,
General igeat at Milledgevillc,
OR the transaction of any and all
x connected with the Skat of GoVEI ) N ” t -g ed
He will furnish certified copies of any A . ct8 P““ e “
F_
by the Legulatnre, will exlmine and give correct
information of the Land Books, Ac., &c. Terms
m °MmSieville, April 2d, 1966. 35
REMOVED-
HE undersigned Laving rented and now occu
pying the rooms at the east en
DARIEN BANK BUILDING,
where he can be found at all bonrs, ready to settle
any claims dne him, and receive procee
Bftmc, many of them bejing old enough o *
am anxious to settle all old accounts an ^
Books balanced. I shall expect and insist on my
Old friends calling on me, as I am ^
on them, not bavmg been oat of my va .t
last Christmas day. va qt
April tftb, »BW.
T
encourage labor, to animate industry, to
excite abilities, to propose honors, re- |
wards, privileges, and so to order mat- j
teis that every one may live by bis indus- j
try *
It is laid down in the Declaration of
American Independence, as a self-evident
i truth, that all men are endowed by their
! Greater with certain inalienable rights;
j that among these are life liberty, and the
I pursuit of happiness : that to secure these
j rights, governments are instituted among
men, deriving their just powers from the
! consent of the governed,
i 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
liberty, the language of the great Euro
pean author, and the American Declara
tion of Independence, all concur in lay
ing down as fundamental principles, which
underlie the structure of good government
in every free State, which no legislative
body has a right to igm^e, disregard, or
violate; that it is the duty of the Govern
ment not only to encourage labor and
stimulate industry, but to so order matters
that every man may live by his industry ;
and that the pursuit of happiness in every
innocent manner agreeable to his inclina
tions—the exercise of honest industry in
any trade or profession which he may
select for the purpose of procuring a. live
lihood ; 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, are inherent inalienable
rights of the citizen or subject, which no
government can disregard or violate with
out incurring the just censure of enlighten
ed reason for the exercise ot tyranny and
oppression. But if the legislative de
partment of the Government, no matter
by wbat motive it may be actuated,
should so far transcend the proper boun
daries which have been prescribed to
its authority, as to invade these sacred
rights, protected as they are by a Jaw
higher than its enactments, it is the pride
of oar system, that an .independent jodi-
ev
violation of the law, because be cannot
take a test oath that he never “aided, coun
selled, countenanced, or encouraged any
one who bore arms against the United
States,” is to be driven from the bar, unless
your Honor can protect his rights by the
decision which you may feel it your duty
to pronounce in this case.
VVbile he refuses to titke the test oath,
who says he has been guilty of rebellion,
or treason, or other crime or misdemeanor,
prohibited by any law of the Uni<ed
States? What officer of the Government
stands here as his accuser, and upon wbat
charge, and specifications ? AVhat provis
ion of the penal code has he violated, and
when and where did he do it, and who are
the witnesses against him ? What grand
jury has indicted him, and upon what
charge? What petit jury has found him
guilty ? What Judge has pronounced
sentence upon him, and w hen was it done,
ami where is the tecord ?
One of the fundamental maxims of the
common law, which has been approved
by the ablest jurists, and sanctioned by
the wisdom of’ ages, is, that every man
shall be innocent till the contrary is pro
ven. The attorney is entitled to the bene
fit of this salutary rule. He stands before
you to-day as did the woman over eigh
teen hundred years ago,♦lefore the judge
of all the earth, with no accuser, and 1
trust the judgment of your Honor will be,
neither do I accuse thee. He stands with
the presumption of innocence in his favor,
and as no proof is offered to the contrary,
that presumption becomes conclusive.—
How then is this Court to puuish him by
the forfeiture of his property in his
profession, and by taking' from him
his means of livelihood for the com
mission of an offence, of which the
presumption of innocence, by a rule of
law which you cannot disregard, is con
clusive in his favor ? Such a proceeding
would not only violate the great priuci
pies of magna charta, but would be sub
versive of the \ ery foundations upon
which our system o£ government, rests. I11
place of the salutary rule above mention
ed, which has been consecrated by the
wisdom of ages, it rvould establish the
contrary one, that every man is presumed
to be guilty of a criminal violatiou of the
law until he proves his own inocence If
he has been guilty of no crime, all must
agree that lie should suffer uo penalty or
forfeiture. The very fact that it is pro
posed to forfeit his right to practice liis
profession for his support, presupposes,
contrary to the truth, that his guilt has
been established before a court of compe
tent jurisdiction. Otherwise the forfei
ture is an unwarrantable and defenceless
violation of the great principles of or
ganic law, laid down by the high authori
ties which I have quoted, and recognized
by every enlightened jurist who has lived
under free institutions, in every age.
But it may be said that large numbers
of persons, aud among them many law
yers, have been guilty of treason, or of
encouraging rebellion against the Gov
ernment of the United States ; and that
Congress has adopted this mode of com
pelling each to discover under oath wheth
er he is one of the number; and if he
refuses to make the discovery, that lie
shall be presumed to be guilty, a<d the
confiscation of his property in his pro-
out usurpation, destroy the constituted
courts, or deprive them of their legitimate
control over the attorney; or that it cau
deprive the attorney of his office when he
cess of laic, giving pioperty precisely the
same protection which.it gives life or liber-
ty - , I
Has an attorney at law a property in
his profession? If so, the Constitution j
of the United States, as well as Magna •
Charta, declares that be shall not be 1
deprived of it without due process ofj
law.
An attorney at law is an officer belong- \
ing to the courts of justice. |1 Bacon's I unhesitatingly, that there does not, unless
Abr. 474 J An officer is one who is lawful- he Jias foifeited it by his own misconduct,
ly invested with an office. [7 Bacon’s in the violation of the law of the land, or;
Abr. 279.) Officers who have a right to ; the rules of the court, of which he must I
exercise a public or private employment, have been convicted by due course of law,
and to take the fees and emoluments when the court of which he is an officer, ,
thereto belonging, are also incorporeal and to which alone he is amenable, may
hereditaments, whether public, as those of strike his name from the rolls. As he is ;
magistrates, or private, as of bailiffs, re admitted by the court as an officer of the.
ceivers. and the like. For a man may court, without limitation as to time, or du- ;
have an estate in them, either to himself ring good behavior, he may hold the office
and his heirs, or for life, or fora term of for life unless he forfeits it by misbeha- j
years, or for during pleasure only ? vior, of which be can never be convicted
ppose 1 were to admit that Con
gress does possess this power in time of
war, and that the act was valid during the
war, how does that deprive the lawyer of
his office now / The war is at an end ;
has been convicted ot violating neither the an( ] b0 proclaimed by onrnonle, patriotic
laws of the land, nor the rules of the ; President, whose bold stand in favor of
coa “' # _ j {he restoration of constitutional liberty to
But I may be asked, if there exists no t p e w j, 0 ] e country will endear his name to
power in the Government to deprive an posterity when the marble which may be
attorney of bis right to practice? I reply, ^ p l ace( l over his mortal remains shall have
! crumbled to dust.—The war is not only
I at an end, but the whole South has ac
quiesced in good faith in the results; and
her sons, whose honor is as stainless as
their gallantry upon the battle field was
; conspicuous, have pledged that honor, un
der the solemnity of an oath for their fu
ture loyalty. - That pledge will never be
violate d. I think your Honor will not
accuse me of vaiu boasting when I say I
know something of the feelings and senti
ments ol the people of Georgia, and I tell
you to-day, that, whatever may have been
yol. 7. j opinions as to the original abstract
question of the right of secession, they
have abandoned it forever. Since the
days of Jefferson and Hamilton, it has
been, so to speak* a litigated question, and
there was but one court which had juria-
diclion to pronounce an authoritative de-
without trial. In Bacon’s Abr
page 308, the law on this subject is laid
down in the following clear and strong lan
guage :
“If an office be granted to a man to have
and enjoy so long as he shall behave him
self well in it, thegrautee hath an estate
f Blackstone’s Com 36.J
By these quotations, it appears that a
mau may have an estate in an office.
VYbat is the meaning of the word estate ?
In its most extensive sense, it is applied
to signify everything in which riches or
fortune may consist, and includes personal
aud real property. [Bouvier’s Law Doc. of freehold in the office; for since nothing c j s jon in the 'case that
516.J According to Judge Blackstone,
hereditaments are a species of estate, and
he declares an office to he an incorporeal
hereditament.
An attorney at law is then, according
to the authorities, an officer of the courts,
legally invested with an office That
office is an estate, which may be for life, or holds his office. And it is precisely the parties were ably represented. The case
for a term of years, or during pleasure, same by which the English Judges and : -g decided; the judgment is against us.
That estale is property. And the Consti- Judges of the Courts of the United States 1 \y e b ave already paid an enormous bill of
tution of the United States says no one hold their offices. Who ever heard of a :
shall be deprived oijrroperty without due ‘ Judge of the United States. Courts hav- j
process of law. : ing been dismissed from office without pre- j
It matters not whether it is attempted vious trial and conviction of misbehavior / j
to be done by means of a test oath, com- I will now proceed to show, (while the
pelling a party to criminate himself, or in mode of trial is not the same,) this is the
what imaginable form, other than by duo rule applied by courts to attorneys: An
process of law, it is alike void, whatever attorney may be struck from the rolls for
but his misbehaviors can determine li is in
terests. no man can fix a shorter term than
his life; since it must be his own act
(which the law does not presume to fore
see,) which only can make his estate of
shorter continuance than his life.”
This is the tenure by which the lawyer
was the high
Court of Appeals, recognized by all na
tions as of universal jurisdiction, where
grave litigated questions between States
or communities, that no otber court has
power to adjudicate are in the last resort
'decided by wager of battle. This ease
has been carried before the court. Both
may be the means resorted to for its ac- any ill piactice, attended with fraud aud
complishment. "What power then has
Congress to deprive an attorney of his
property in his profession, simply because
he refuses to swear whether he has or has
not vi* lated the criminal law of the land,
when he has neither been charged with,
indicted, or convicted of any such viola
tion. 1 deny that it has any such right.
corruption, and committed against the ob
vious rules of justice and common honesty
[1 Bacon's Abr., 586 ] %
This is the general rule of law upon the
subject; but as the following quotations
will show, he will be heard when the
charge has been preferred, and must be
conflicted before he will be deprived of his
This attempt is in violation of the funda-, office :
mental law, as expounded by the highest j When an attorney has been fradulently
authorities, and is absurd within itseT; and admitted; or competed after admissiou of
I know of no role governing courts which felony or other offence, which renders him
could justify your Honor in the enforce- unfit to be continued as an attorney, he
ment of any such enactment. The statute , may be struck off the rolls,
is a nullity, and must, in my opinion, be And if an attorney practices after he
so held whenever and wherever it is has been convicted of forgery, pcijupy,
brought iu question before any intelligent subornation of perjury, or common bara-
court.
I further invite your Honor’s attention authority, page 508
to the fact, that the office of Attorney and An atlorney will be struck from the
Counsellor 16 recognized as well by the f rolls when ho has been convicted of subor-
Constitution and laws oi the United States
as by the common law.
In the Gtlx article of the amendments j
to the Constitution, it ia declared, that in ;
all criminal prosecutions the accused shall ,
enjoy the right of a speedy and public j
trial by an impartial jury of the State, or’
district wherein the crimes shall have been
committed; to be informed of the nature |
and cause of the accusation; to be confiont-
• cost. But we acquiesce in'the result, and
swear before Heaven that we will abide
! by it in good faith.
J Admit then, for the purpose of the' ar
gument, that the law was valid during the
j war, and where is its binding force now
; that the war is at an end ? In that view
’ of it, we have the very case laid down in
the books where the reason of the law
t having ceased, the law itself ceases:
I have already shown, I trust to the
satisfaction of the court, that tbe office of
) a lawyer or his right to practice his pro-
I fessiou is property, and as such that it is
I protected by the Constitution of the Uni-
i ted States, and that he cannot be depri
ved of it without due process of law. If
Congress has power to deprive bim of his
property on his refusal to take a test oath,
tbe tender of which it will not be preten
ded in due process of law, it has tbe same
power to deprive him of bis library, his
dwelling house, choses en action, and any
aud all other property he may possess, till
he takes tbe oath, and, it be can never
take it, the confiscation of his whole prop-
try, he is liable to be transported, [Same g r ty na a y become complete and perpetual,
.ntknnto ,.ooro f.ntt I wit front indictment, trial by jury, or con
viction of any offence whatever.
Again, if Congress has power to deprive
a lawyer of his property in his office till
he takes a test oath, it has the same pow
er to prohibit auy citizen from following
any otber profession or avocation till he
has done the same. If it had power to
enact this law, it has the same power to
) vaty, alter, or ameud it at pleasure. If
1 it may constitutionally do what it has
nation of perjury, fl McCord’s C.
Keps 379.J
But the Court will not proceed against
such attorney before conviction. [2 Hal-
sted, 162.J
An Attorney convicted of felony and
puriii-hed for it was struck off ibe rolls,
j Exparte Brownall Cowper’s Reps. 829.J
On a mere allegation that an attorney
has been guilty of larceny, hts name will
fessiou should be the penalty. Truly, ■ w itb the witnesses against him; to have j not be stricken off tbe rolls: his convic
compulsory process for obtaining witnesses tion must precede. [Bacon’s Abr. 506.J
this is what Congress has attempted to
do, but upon what principle, and by what
right 1 If be has been guilty of a crime,
it is the right of the Government to have
him prosecuted, convicted, and punished
by tbe judgment, of his peers, or the law
of the laud ; but without such conviction,
the infliction ot corporal punishment upon
him, or the confiscation of his estate, or
in his favor, and to have the assistance of
counsel for his defence
The judicial act of 1789 provides, that
in all the courts of the United States tbe
parties may plead aDd manage their own
causes personally; or by tbe assistance of
any such counsel or attorney at law as by
the rules of said court respectively, shall
done; as the freedom of religion has no
higher guaranty ia tbe Constitution than
tbe protection of property; it may pass a
law that no one shall preach the Gospel
These are the rules which govern in ca- J till be has sworn that he believes baptism
immersiou tbe only mode; or'it may
enact that no one shall practice medicine
till he has taken an oath that he nevei
ses when it is proposed to strike an attor
ney from the rolls for a violation of public
law, which will only be done upon his
any part thereof, is unauthorized tyranny ; lie permitted to manage or conduct causes
nor has the Government any right to com
pel him to appear and give testimony
against himself, to aid it in procuring such
conviction. Nemo tenebafui prodere se
ipsum is the well established rule of the
common law, and is ttius expounded by
a very able and accurate Americau author ;
That when the answer will have a tenden
cy to expose the witness to a penal lia
bility, or to any kind of punishment, or
to a criminal charge, or to a forfeiture of
his estate, the witness is not bound to ans-
tberein.
The court will observe that the Con
gress of 1789 did net attempt to prescribe
the qualifications of the* attorney, or to
say who shall or shall not, practice in the
courts, or for what cause an attorney shall
be stricken from the rolls. That is left
as it should be, to tbe courts or principal
officer, to which the office of attorney
is incident, to be determined by rtile of
courts.
Tbe officer of attorney at law is clearly
wer. And if the fact to which he is in- i incident to that of a court, or of the judge
terrogated forms but one link in the chain I or judges of the court; and tbe incident
of testimony which is to convict him, be; officer is only amenable to the principal
is protected. And if the witness declines
answering, no inference of the tiuth of the
fact is peimitted to be drawn from that
circumstance. [ I Greenl. Ev., sec. 451—
453 J
Tue Constitution of the United States,
as originally formed, contained no pro
vision guranteeing to the citizen protection
officer, and may be removed by him. Con
gress has no snch powers. In 7 Bacon’s
Abr. 284, and the cases there cited, the
iaw upon this subject is laid down in tbe
following words :
Wherever an office is incident to anoth
er, such incident office is regularly grauta-
ble by him who hath the principal office,
conviction of such violation. Ashe is an ! will use opium in his practice,'or that no
officer of the court, and amenable to th
court, he may be struck for a willful vio
lation of a rule of court, when bis act in
volves criminality, or for a willful con
tempt of court, but never without a hear
ing, nor until his guilt is established.
But I may be told that the Congress of
the United States, in time of war, may
seize and confiscate the property, whether
in an office or any otber kind, of a citizen
surpected of disloyalty, or having aided in
rebellion, and deprive him of liberty or
property till he has proved, or, at least,
sworn to bis innocence. 1 deny it. Con
gress has no right to violate the Constitu
tion, either in peace or war.
The rule laid down in the Constitution,
in plain language, is this: No person
shall be held to answer for a capital or
otherwise infamous crime uuless on a pre
sentment or indictment of a grand jury.
The exception of tbe rule is, that persons
in the land or naval forces, and persons in
the militia, when in actual service, in lime
of war or public danger, may be held to an
swer without such iudictment or present
ment of a grand jury. Nor can Congress
one shall plow till he has filed his affidavit
that be will never use a turning plow, as
the Creator placed the soil on top of the
ground where it should remain; or the par
ty in power iu Congress, no matter which
it may be, may prescribe a test oatb that
no person shall ever vote again who docs
not make oatb that be never voted for the
other party; and may justify it upon tbe
ground at least satisfactory to itself, that
its principles are the only true principles
of the government, and that the public
good imperatively requires that they be
earried out in practice, whleh might not
be done withou; the aid of the oath.
Let the judiciary sustain this 888ump<
tion of power by Congress, and. it may
close the courts in the South indefi
nitely; shut the doors of the churches;
stop every spindle of the manufactur
er; queuch the fires of every furnace
in blast; lock the doors of the mer
chant, and drive the plowman from
bis honest labor—all by the simple
Appliance of tbe test oatb,
[Concluded on 4thpOft.)