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About Weekly constitutionalist. (Augusta, Ga.) 185?-1877 | View Entire Issue (May 23, 1866)
tUeclilj) Constitutionalist. BY STOCKTON & CO. OCR TERMS. The following are the rates of Subscription and Ad vertising in the Constitutionalist : Wkklt—3 Months f 75 6 Months 1 50 TERMS FOR ADVERTISEMENTS: |1 'per Square for Ist Insertion, and 76 cents for each additional time. Special Notices will be charged 26 per cent, on thfe above rates. Banking for the Blacks.— We find the following suggestive item in an exchange: The “ Frecdmen’s National Bank,” an insti tution organized by a Boston firm at Sandy Hill, South Carolina, to receive and take care of the savings of the negroes in that region, has closed Us doors finally. Its name was a mere sham, as it had no connection with the Government to authorize the assumption of the title of “ National Bank.” Its notes were wretched lithographs, much resembling black ing-box labels, but printed in gaudy colors, which captivated the eyes of the poor negroes. Each freedman 'who ' deposited a dollar green back in the “ bank” received a two-dollar note of this gay pictorial issue, and fancied, of esurse, that he was so much richer. There is no telling how much longer the swindle would have lasted, if Captain Jewett,* late of the army, whd. lias leased a plantation in the neighbor hood of Sandy Hill, had not discovered some of the fraudulent notes among the hands on his place, and learned from the simple-minded creatures the nature of the financial enterprise in which they had embarked. He immediately wrote to Washington upon the subject; but Oiarges & Higginson, the proprietors •of the institution, somehow getting wind of the dis covery, stole away in the night, carrying with them, of course, all the deposits in their 11 vaults.” It is supposed that they realized by this transaction between- three and four thou sand dollars. They came South as temperance lecturers, and, at first, eked out their sub sistence by selling tracts aud bibles. It is said that certain parties from the North who are occupying abandoned plantations near the 6ite of the defunct “bank,” suggested the enter prise to these two adventurers, induced the freedmen in their employ to exchange their wages for- the beautiful bills of Clarges and Higginson, and divided the profits of the con cern with those worthies. The freedmen who have been thus shamefully gulled have learned a lesson, but a very hard and unpleasant one. Ex-Confederates.— Speaking of the scenes of bloodshed and arson in Memphis, the Appeal says: “We have reason to believe that eX-Coufede rate soldiers have not been concerned in these turbulent occurrences of the past forty-eight hours —that they are rigidly, according to the terms of their parole, 'observing the laws of the place where they reside.' These breakers of the peace, black and white, arc not of the vieinage.” A gentleman, says an exchange, in traveling along the coast of Florida and Georgia, found a woman who diebnot know what a newspaper was. She had seven children and a pipe in her mouth. She must have had a capacious mouth. Tue Only Corrective. —A negro was fined fifty dollars the other day in Montgomery, Ala bama, for breaking his contract with his em ployer, and sent to jail in default of payment. THE TEST OATH. Subjoined is given the able argument made before Judge Ekskine, of the U. 8. District Court at Savannah, by Ex-Qov. Brown on the opening of that Court some few days since. Thi6 argument was preceded by one from that venerable advocate Judge Law, which will also be given in turn. Judge Trigg, of Tennessee, and Judge Bitsteed, of Alabama, have sever ally decided against the constitutionality of this test oath as sought to bd applied to the Bar, and it is hoped Judge Erskine may find his convictions such ns will permit him to reiterate decisions so consonant with the popular under standing of what truth and justice, the Con stitution aud the Laws provide. May it Please Your Honor: l am well aware of the great importance of the question now under consideration. He who denies the validity ofa solemn. act of Con gress on account of its unconstitntionality, should do so with deference and respect for the department ol 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 6ay I state in advance, that it is not my intention to reflect in the slightest 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 civil; and to see the courts once more thrown open for the re dress of grievances aud the general administra tion of justice. I trust they may- never again be compelled to give place to military tribunals or military rule. “Os the peace and quiet which is being restored to the country, I would say as the great English Commentator says of his government, Eslo perpetua In the discussion of this question I am satisfied that reason and authority are more in demand than declama tion or even eloqnence. If I possessed the latter, which I do not claim, this is not the proper occasion for its display. As I have •opied most of the authorities which I cite literally, and as they are numerous, 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 have before me. It is solemnly declared in the great charter of English liberty, that No freeman shall be taken, imprisoned, or disseized of his freehold or liberties, or free customs, or be outlawed or exiled, or otherwise destroyed or condemned, but by lawful judgment of his peer*, or by the law of the land. AUGUSTA, GA., WEDNESDAY MORNING, MAY 23, 1866. Judge Biaekstone says of this provision in the great charter, that it protected every in dividual of the nation hi the free enjoyment of his life, his liberty, and his property , unless de clared to be forfeited by the judgment of his peers, or the law of the land. [Com. voi. 4, page 424.] Again, in voL 1, page 139, he says : And by a variety of ancient statutes, it is enact ed that no man's lands or goods shall be seized into the king’s hands against the great charter and the law of the laud ; and that no man shall be disinherited, nor put out of franchises or freehold, unless lie be duly brought to answer, and be forejudged by course of late ; and if any thing be done to the eorUrary, it shall be re dressed and holden for none. Mr. Vat tel, in his standard work upon the law of nations, page 33, while t reating of the principal objects of Good Government, says: The society is established with a view of pro curing to those who are its members, the nec essaries, conveniences, and even pleasures of life, and, in general, everything necessary to their happiness—of enabling each individual 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 his industry. It is laid down in the Declaration of American Independence, as a self-evident truth, that all men are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that to se cure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. By the above .quotations, and others that might be added, which arc doubtless familiar to your Honor, it will be seen, that the celebrated Charter of English liberty, the language of the great European author, and the American De claration of Independence, all concur in laying down as fundamental principles, which underlie the structure of good government in every free State, which no legislative body lias a right to ignore, disregard, or violate; that it is the duty of the Government not only to encourage labor aud stimulate industry, but to so order matters that every man may live by his industry ; and that the pursuit ofhappiness in every innoceDt. manner agreeable to his inclinations—the ex ercise of honest industry in any trade or pro fession which he may select for tlio purpose, of procuring a livelihood ; the acquisition of pro perty by his labor, and the protection by gov ernment of his life, liberty, person, and property against every illegal or unjust violation or in vasion, are inherent inalienable rights of the citizen or subject, which no government can disregard or violate without incurring the just censure of enlightened reason for the exercise of tyranny and oppression. But if the legisla tive department of the Government, no matter by what motive it may be actuated, should so far transcend the proper boundaries which have been prescribed to its authority, ns to invade these sacred rights, protected as they are by a law, higher than its enactments, it is the pride of our system, that an independent judiciary, whose duty it is to hold the scales of justice in equipoise, as well between the citizens and the Government, as between citizen and citizen, will vindicate the majesty ol the law, and main tain the good jaitb and justice of the Govern ment, by declaring all such enactments ns vio late, the fundamental law, inoperative, null, and void. Let ns apply these great principles to the case now before your Honor. An attorney of this Court, whose name has appeared upon the rolls as an officer of Court for nearly fifty years, whose private and professional character are of the most elevated rank ; who has filled with dis tinction the position of a Judge; who was a Union man as long as there was a possibility of preventing the rupture; who never bore arms against the Government of the United States, or held office under the Confederate States; who has violated no rule of the common lav;; committed no contempt of Court; collected no money which he has refused to pay over ; acted in bad faith to no client; nor has been chained, indicted, or convicted under any penal law of this State, or of the United States; and who has received a full pardon from the President of the United States for any and every act which might, even by implication, be construed as a violation of the law, because he cannot take a test oath that he never “aided, coun selled, countenanced, or encouraged any one who bore arms against the United States, i6 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. While he refuses to Wke the test Gath, who says he has been guilty of rebellion, or treason, or other crime or misdemeanor, prohibited by any law of the United States ? What officer of the Government stands here as his accuser, and upon what charge and specifications ? What provision of the penal code has he violated, and when and where did he do it ; and who are the witnesses against him ? Wliiit grand jury has indicted him, and upon what charge ? What petit jury has found him guilty ? What Judge has pronounced sentence upon him, and when was it done, and where is the record ? One, of the fundamental maxims of the com mon law, which have been approved by the ablest juries, and sanctioned by the wisdom of ages, is, that every man slm.ll be presumed to be innocent till the contrary is proven. The attorney is entitled to the benefit of this saluta ry rule. He stands before you to-day as did the woman over eighteen hundred years ago, before the Judge of all the earth, with no accu ser, and I trust the judgment of your Honor will be, neither do I accuse thee. He stands with the presumpiiou of innocence in his favor, and as no proof is offered to the contrary, that presumption becomes conclusive. How, then, is the Court to punisli him by the forfeiture of liis property in his profession, and by taking from him his means of livelihood for the com mission of an offense, of which the presumption of innocence, by a ruleof law which you cannot disregard, is conclusive in his favor ? Such a proceeding would not only violate the great principles of magna charta, but would be sub versive of the very Inundations upan which our system of Government rests. 111 place of the salutary rule above mentioned, which has been consecrated by the wisdom of ages, it would establish the contrary one, that every man is presumed to be guilty of a criminal violation of the law tiil he proves liis own innocence.— If he has been guilty of no crime, all must agree that he should suffer no penalty or for feiture. The very fact that it is proposed to forfiit his right to practice hi* profession for bis support, presupposes, contrary to the truth, that his guilkbas been established before a court of competCTt jurisdiciion. Otherwise the forfeiture is an unwarrantable and defence less violation of the great principles of organic law, laid down by the high authorities which I have quoted, and recognized by every enlight ened jurist who has lived under free institu tions, in every age. But it may be said that large number* of per sons, and among them many lawyers, have lieen guilty of treason, or of encouraging re bellion against the Government of the United States; and that Congress has adopted this mode of compelling each to discover under oath whether he is One of the number ; and if he refuses to make the discovery, that he shall be presumed to be guilty, and the confiscation of his property in his profession shall be the penalty. Truly, this is what Congress has at tempted to do, but upon what principle, and by what right * If he has been guilty of a crime, it is the right of the Government to have liim prosecuted, convicted and punished by the judgment of his peers, or the law of the laud; hut without such conviction, the infliction of corporeal pu,uiMnnenl upon him, or the confis cation of his estate, or any part thereof, is un authorized tyranny; nor lias the Government any right to compel him to appear and give testimony against, himself, to aid it in procuring such conviction. Nemo tenebatnr prodere se ipsum is the well established rule of the coni raou law, and is thus expounded by a very able and accurate American author : That when the answer will have a tendency to expose the wit ness to a penal liability, or to any kind of pun ishment, or to a criminal charge, or to a for feiture of his estate, the witness is not bound to answer. Aud if the fiict to which he is in terrogated forms but one link in the chain of testimony which is to convict him, he is pro tected. And if the witness declines answering, no inference of the truth of the fact is permitted to be drawu from that circumstance. [1 Greenl. Ev., sec. 451—463.] The Constitution of the United States, as originally formed, contained no provision guar anteeing to the citizen protection against the violation by Congress of this great first princi- Cie. But this protection is cascftilly provided i tlie fifth article of the amendments, pro posed at the first session of the first Congress, which was adopted in these words: No person shall be held to answer fora capi tal or otherwise infamous crime, unless on a presentment or indictment of a grand Jury, ex cept cases arising in the land or naval forces, or in the militia when in aelua! service in time oi war or public danger ; nor shall any person lie subject for the same offence to he twice put in Jeopardy of life or limb; nor shall he be com peted in any criminal case to be a witness against himself, or be deprived of life, liberty, or pro pei-ty without due process of law; nor shall private propety be taken for public use without just compensation. This is the fundamental law trills land, and any act of Congcss in violation of it is inopera tive, null 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 or the Constitution not only denies to Congress the power to compel any one to be a witness to cri minate him* ilf, hut it declares plainly and pos itively, that no one shall be deprived of life, lib erty, or property without due process of law, , giving property precisely the same protection . which it gives to life or liberty. Hasan attorney at law a property in his pro- j fission? If so, the Constitution of the United States, ns well a6 Magna Charta, declares that : he shall not be deprived of it without due pro- ; cess of law. An attorney at law is an officer belonging to * flic courts of justice. [1 Bacon’s Abr. 474.] An officer is one who is lawfully iuvested with an office. [7 Bacon’s Abr. 279.] Offices which are a right to exercise a public or private em ployment, and to take the foes and emoluments thereto belonging, are also incorporeal lieredi- , Laments, whether public, os those of magistrates, ; or private, as of baliffs, receivers, and the like. 1 For a man may have an estate in them, cither to himself and his heirs, or for life, or for a term j of years, or for during pleasure only ? [Black- ! stone’s Com. 36.] By these quotations, it appears that a man may have an estate it# an office. What is the meaning-of the word estate ? In its most ex- : tensive sense, it is applied to signify everything , in which riches or fortune may consist, and in- ! elude" personal and real property. [Bouvicr’s j Law Doc. 516.] According to Judge Black- ' stone, hereditaments are a species of estate, and ! lie declares an office to he an incorporeal hare- j ditament. An attorney at law is then, according to the authorities, an officer of the courts, legally in vested with an office. That office is an estate, which may be for life, or for a term of years, or during pleasure. That estate is property. And the Constitution of the United States says no one shall he deprived of property without due process ot law. w It matters not whether it is attempted to he done by means of a test oath, compelling a party to criminate himself, or in what, imagina ble form, other than by the process of law, it is alike void, whatever may be the means resorted to for its accomplishment. Wliat power then has Congress to deprivejjiu attorney of his property in his profession, simply because he refuses to swear whether he lias or has not violated the criminal law of the land, when he has neither been charged with, indicted, or con victed of any such violation. I deny that it has any such right. This attempt is in violation of the fundamental law, as expounded by the highest authorities, and is absurd within itself; and I know of no rules governing courts which could justify your Honor in the enforcement of any such enactment. The statute is a nullity, and must, in my opinion, be 60 held whenever aud wherever it is brought iu question before any intelligent court. f further invite your Honor’s attention to the fact, that the office of Attorney aud Counsellor is recognized as well by the Constitution and laws of the United States as by the common law. In the 6th article of the amendments to the Constitution, it is declared, that in all criminal prosecutions the accused shall enjoy the right of a speedy and public trial by an impartial jury of the State or district wherein the crime* shall have been committed ; to be informed of the nature and cause of the accusation ; to be confronted with the witnesses against him ; to have compulsory process for obtaining wit nesses in hi* favor, and to have the assistance of counsel for his defence. The jndicial act of 1769 provides, that in all the courts of the United States the parties may plead and manage their own eases personally; or by the assistance of such counsel or attor ney at law, as by the rules of said court* re spectively, shall be permitted to mauage or conduct causes therein. The eourt will observe that the Congress of 1789 did not attempt to prescribe Uic qualifica tions 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 t mil#. That is left, as it should be, to the courts or principal officer, to which the office of attorney is incident, to be determined by rule of c**urts. The office of attorney at law is clearly inci dent to that of a court, or of the judge or judges of the court: and the incident officer is only amenable to Lite principal officer, and may be removed by him Congress has no such powers. In 7 Bacon’s Abr. 284, and tbe case# there eited, the law upon tills subject is laid down in the following words : Wherever an office is incident to another, such incident office i* regularly gramiblc by him who bath the principal office. Oo this foundation it hath been beid that the King’* grant of the office County Clerk w*s void ; it being inseparably incident to the office of shcr- IfL and could not by any law or contrivance be talced away from him. If the King’s grant of sueli incident office was void, and so held by his own courts, and it could not be taken away from the principal office by any law or contrivance, it follows that the King and Parliament together could not rightfully do IL Where then does the Congress of the United States, restrained by a written Constitution, get power to do tliat’ which the King and Parliament together in Great Britain, without such restraint, have no power to do? The office of county clerk in England which from time immemorial lias been nn incident of the office of Sheriff, is certainly nd more in separably connected with the sheriffs office than is the office of attorney In this country with that of tlie courts, and yet. the transcendent power of the King and Parliament cannot, without tlie utter disregard of all prinoiptp. and precedent, deprive the principal office of the control of the incident. I do not deny that Congress mny lay down general rules regulating the proceedings of the courts, and the conduct of attorneys (but I do deny that it can, without usurpation, destroy the constituted courts, or deprive them of their legitimate control over the attorneys; or that it can deprive the attorney of his office 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 an attorney of his right to practice. I reply, unhesitatingly, that tnere does not unless he has forfeited it by his own misconduct, In the violation of the law of the land, or the rules of the court, of which he must have been convicted by due course of law, when the court of which he is nn officer, and to which alone he is amenable, may strike bis name from the rolls. As lie is admitted by the court as an officer of court, without limita tion as to time, or during good tielinvlor, he may hold the office for life unless he forfeits it by misbehavior, of which lie can never be cou victed without trial. In Bacon’s Abr., voi. 7, page 308, the law on this subject is laid down in the following clear and strong language : “ If nn office be granted to n mail to have and enjoy so long as he shall behave himself well in it., the grantee hath an estate ol freehold In flic office; for since nothing but his misbehaviors can determine ills interests, no man can .fix a shorter term than Ids life ; since it must be Ids own act (which the flaw does not presume to foresee), which only can make ids estate ol shorter continuance* than his life.” Tills is the tenure by which the lawyer holds Ids office. And it is precisely the same, by which the English Judges and Judges of the Courts of the United States hold their offices. Who ever heard of a Judge of the United Stales Court# having lieen dismissed from office with out previous trial and conviction of misbeha vior? 1 will now prpceed to show, (while the mode of trial Is nqj tlie same), that this is the rule ap plied by courts to attorneys: Au nttorney may be struck from the rolls by any ill practice, at tended with fraud and corruption, and commit ted against the obvious rules of justice and com mon honesty, fl Bacon’s Abr., 586,] • ' This is the general rule of law upon the sub ject ; but os the follbwing quotations will show,) lie will be heard when tlie eliarge lias been lire- j lerrea, atfd must lie convicted before lie will tie deprived of his office. When an nttorney has been fraudulently ad mitted, or convicted after admission of felony or other offence, which renders him unfit to be continued as an attorcey, he may be struck off the rolls. And if an attorney practices after lie has been convicted of forgery, pe.rjury, subornation of perjury, or common baratry, he is liable to he transported. [Same authority, page 508.] Au attorney will be struck from the rqll* when he has lieen convicted of subornation of perjury. [1 MeCord’s 8. C. Keps. 879.] But the Court will not proceed against such attorney before conviction. |2 Haleted, 162.1 An attorney convicted of felonv nnd punished for it was struck off the rolls. [Ex parte Brow n all Cowper’s Reps. 829.] , On a mere allegation that on attorney bns been guilty of larceny, hi* name will not be stricken off the rolls: Ids conviction mu#t pre cede. [Bacon’s Abr. 506.) j These are the rules which govern In tpMfe when it is proposed to strike nn attorney JHnn the rolls for a violation of public lav* which' will only be done upon his conviction ofttu-h violution. As he is an officer of the Court, and amenable to the Court, lie may Ims struck for a willful violation of n rule of Court, when Ids act involves criminality, or /or a willful con tempt of Court, but never without a hearing, nor .until id* guilt i# established. But I may be told tbul the Congress of tlie United States, in time of war, may seize and confiscate the property, whether in uu office or any other kind, of a citizen suspectod of dis loyalty, or having aided in rebellion, *nd de prive him of liberty or property till he bos proved, or, at least, sworn to ids innocence. I deny it. Congress bus no rigiit to violate the Constitution, either in pence or war. The rule laid down in the Constitution, In plain language,is this: No person shall lie lieid to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury. Tin: exception to the rule Is, that persons in the land or naval forces, and persons in the militia, when in actual service, in time of war or public danger, may be held to answer without such indictment or present ment of a grand jury. Nor can Congress de prive any person (not without the exception, of life, liberty or property, without due process of law. Congress may, bylaw, provide for the forfeiture Os the estate of a person at tainted of treason, hut then only during Ids life time.— There can be no forieiture, even for treason, till there is a conviction, and the moment a person convicted is executed the forfeiture is at an end. And as there can be no corruption of blood, tlie estate, if inheritable, immediately descends to his legal heirs or devisees, in no other Instance that occur* to me now, doe* the Constitution give Congress the power to for feit the estate or property of any one, for any offense whatever, except in tlie ease of judge# and other officer#, on conviction or impeach ment, which works a forfeiture of their estates in their offices, but of no other property or es tate#, and never iiefore conviction. Congress ha«, therefore, no right to deprive any lawyer of his estate in ids office, or of liny other property, (not ueeded for public use up on just compensation) until he has been con victed. Nor has Congress any right to make hint a witness to prove his own guilt, or to draw any inference of his guilt from his rein sal to answer. 17 Porter’s Reports, 891.] But suppose i were to admit tliat Congress does possess this power in time of war, and that the act was valid during the war, how does that deprive tlifi lawyer of his office now ? Tilt war is at an end; and so proclaimed by our noble, patriotic President, whose bold stand in favor of tlie restoration of constitutional liberty to the whole country will endear bis inline to posterity when the marble which may be placed over his mortal remains shall have crumbled to dust. The war is not only at an end, but the whole Booth has acquiesced in good faith in the results; and her sons, whose honor is as stainless a* their gallantry upon the battle field VOL. 24. NO. 21. was conspicuous, have pledged that honor under the solemnity of an oath, for their future loyalty. That pledge will never be violated. I thluk your Honor will not accuse me of vain boasting when I say I 'know something of the feeling# nnd sentiments of the people of Geor gia, and I tell you to-day, that, whatever may have fqg-n their opinions as to the original abstract question of tlie right of secession, they have abandoned it forever. Since the days of Jefferson and Hamilton, tt has been, so to speak, a litigated question, and there was hut one court which had Jurisdiction to pronounce an authoritative decision In tlie case—that was the high Court of Appeals, recognized by ail nations of universal jurisdiction, where grave litigated questions between States or commu nities, that no other court has power to adjudi cate, are in the last resort decided by wager of battle. This ease has been carried before that eourt. Both parties were ably represented. The ease Is decided; the judgnien is against us. We have already paid an enormous bill of cost; but we acquiesce In the result, and swear before Heaven that we will abide by It In good fhith. • Admit then, for the purpose of the argument, that, the law was valid during the war, and where is its binding force now that the war is at an end? In that view of It, we have the very ease laid down in the books where the reason of the law having ceased, the law itself ceases. I have already shown, I trust, to the satlifac tlon of the court, tliat the office of n lawyer or his right to practice Ills profession is property, and as sucb that tt Is protected by the Consti tution of the United States, and that he cannot bo deprived of tt without due process of law. If Congress has power to deprive him of his property on his rcftisal to take a test oath, the tender of which it will not be protended Is due process of law, It has the same power to deprive him of bis library, his dwelling house, chases en action, and any and all other property lie may posne**, til! he takes the oath, and if he can uever tnkc it, the confiscation of his whole pro perty may become complete and perpetual, without Indictment., trial hy Jury, or conviction 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 lias tlie same power to prohibit any citizen from following any other profession or avocation till he lias done the same. If It had power to enact tills law, tt lias the same power to vary, alter, or amend it at ph-usure. if tt may constitutionally do what it has done ; as the freedom of religion Ims no higher guar anty in the Constitution than the protection of property ; It may pas# a law that no one shall preach the Gospel till he has sworn tliat he be lieve# baptism by immerson the only mode ; or it mny enact that no one shall practice medicine till he ha# taken nn oath that, lie never did, nt)d never will use Opium •In his practice; or tliat no one. shall plow till he lias filed Id# affidavit that he will never use a turning plow, a* the Creator placed the soil on top of the ground where tt should remain ; or the party in power in Congress, no matter width tt may be, may be prescribe a test oath that no person shall ever vote again who doe# not make oath that he never voted for the oilier party; nnd may Jus tify it upon the ground at least satisfactory to Itself, that It* principle# are the only true prin ciple* of the Government, and that the public good Imperatively require* that they be carried out in practice, which might not be done with out the aid of the onth. Lot the Judiciary sustain this assumption of power hy Congress, aud it may close the courts in the South indefinitely ; shut, the doors of the churches; stop every spindle of the manufac turer ; qnonchtiio Are# of every furnace in blast; lock the doors of the merchant, stid drive tlie plowman from his honest labor—all by the sim ple appliance of a test oufli. Apd a* nineteen-twentieths of the people of Georgia could not probably take tt, Congress, by n t,c«t oath declaring tliat no one shall hold property who cannot lake tt, mny confiscate nineteen-twentieth# of tlie property of Georgia, and indeed of the South, hy the exercise of this power; for if tt has power to forfeit the pro perty a lawyer has in ids profession, by till# meanrft lift# ns ranch power to confiscate any aMd all other property of all who refuse to take teafoath it may prescribe to any or all the petWr' of (tie United States. Establish tlio prMßplc tliat Congress can exclude all men fro|F office, or the practice of any profession or “avocation, who do not swear that they never bore arm# against the Government, and it fol lows tliat tt may enact ft law that no man shall hold office who fails to #wear that he did bear arm# In defense of the Government. If the enactment of test oaths becomes the settled and approved policy oUtho Government, the people of oilier sections of the Union will soon find that the Southern people arc not the only sufferers. I may be told that tlie Britlslr Parliament, centuries ago, enacted test oaths, nnd tliat no mnn was allowed to hold office until tie hud taken tlie *nerament» of the Church of Eng land, and the oaths of abjuration, itc. This is true ; and it is also true, that the enlightenment of the age, and the triumph of reason, have long since swept these oath# from the statute book, and the Jew and tlie Dissenter sit to-day by the side of the Churchman, in the Parlia ment of (he realm. But tt does not follow, from (hi# historical tact, that Congress now ha#, or ever did possess, any such powers. The Parliament of Great Britain ha# established a particular church. Ha* the Congress of the United Status any such power? Parliament has established nn aristo cracy, and provided for the grant, hy the king, of ti tles of nobility, Can Congress do the same? Certainly not. Why not ? Because there is a written Constitution in this country which ex grossly forbids tt. There was none in England. nch is the omnipotence of the Parliament of Great Britain, that, with the consent of the King, it may change what they call the Consti tution at pleasure. The Congress of the United States, with the President, tin* no such power. The Parliament of Great Britain has the power to confiscate tlie property of the subject beyond the period of his life, and either with or without the use of test oaths, if it should so will to de prive a subject of his property, without due pro cess of law. The written Constitution of the United States, which tt has no jKiVror to change, denies to Congress the power to do either. From the difference in tlie powers possessed by Parliament, and by Congress, the court will readily perceive tlie reason why the British test oaths can, os precedents, be of no avail to the advocates of similar oaths to this country. I wish, also, to invite the attention 4 of your Honor to this view of this question. I have already shown that Uic Congress of the United States lias, by statue, authorized parties to the courts to manage their causes, by the assistance of such counsel, or attorney at law, as, by the rules of said courts, respectively, shall be permit ted to mannage or conduct cases therein ; and that the Constitution guarantees to the accused the assistance of counsel for his defense. Now, I deny that Congress Jxtw the power-after a party ho* employed an attorney under this act* and confided to him the management of hi* cause —to deprive him of his assistance, when the attorney has been convicted of neither mal practice, crime, nor misdemeanor. [continued on *i> FftOß J
