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About Weekly constitutionalist. (Augusta, Ga.) 185?-1877 | View Entire Issue (May 23, 1866)
[cuntivieo fkom Ist i-aoe ] 1 will now proceed lo show that tttf* cn el m( nt it, obnoxious l<> another crave constitu tion*! objection. Tli<* Cowntutiou of tuc t’nilcd fttstrit declares no Wll of attainder, or *r j*i»t facto law idwil l" pajwctl- B\ a’bill of .ittaiuiier, I under-la nd,ajiidu U 1 ayntimd# In Parljumcul. or * legislative u-ur|«t --tlon of iudici.il lvower. A- when the Piflia- HisOt parsed a bill to attaint A, B. of high tr -h --#.>n and directed tot# ra(c**ttou, aTid tlie eon'i*- eation of bi» etate Thl# act afiCoitgre## i- in the u uiire of a bill of attainder. It doe# not attaint a iawjer of high trea-on, but it doe* as sume Jiidfoitl fbwtlons, hud confiscate# life property w ithout judicial trial or judgment.— Ami it usurps the power which properly be longs to tlic Courts alone, ol determining wtio r I tail and who shall not till the offiee, which is insojtfwably incident to the Cwrt. This ob jection embraces the Cjtae of the applicant lor admission to the bar as fully as that ot the member of the bar. The Court prescribes a rule, upon conformity to n Uicb, any citizen hits a right to be admitted to the bar. It belongs to the Court to till this incident office, aid Congress has no right to interfere, while Be who compiles with the rule of the Court has an iinuueetionabie right to be admitted to prac tice. The student expends his rnouey and time iu preparation, and when ready to comply with tlie rule M the Court, ho applies sos admission and is met by a quasi hill of attainder, iu the nature of a judicial sentence passed by Con gress. that he shall not be admitted on comply ing with the rule of Court, hut that it is the judgment of Congress that lie must also take a certain test oath, not required by'the Courts, helore he can be admitted, and that on refusal to take it, be stands convicted of aiding and abetting retellion. If Congress may include all applicants lor admission till they can take the test oath, it may so shape the oath that no man ever can take it. and it may thus create a monopoly, In the office of attorney, in the bauds of the few uow at the liar, who can take the oath, at their death destroy the office ulto . gether, notwithstanding the constitutional guar antee thot every person accused of a criminal offeiisc shall hue the assistance of conusci for the doit a .. This law is uot only in the nature of a bill Os attainder, which is torbidden by the Constitu tion, but it is clearly au ex pout facto law as when applied to attorneys ot the court, or ap plicants for admission to practice. An ex jmsl facto law Is thus defined* by Mr. Justice Chase, delivering the opinion of the Supreme Court or the United States iu l be ease of Colder and wife os. Bull and wife, lid Dallas, 380. 1. Kvery law that makes an action dons lie fore the passing of tile laws, anil which wo# in nocent wiien done criminal, and punishes such action. Every law that agtpraeaUs a crime or makes it gre'Uer than it was when committed. U. Every law tliat ehanges the punishment and inflicts a greater uuniskment than the law annexed to the crime when committed. 4. Ei ory law that alters the legal rules of evi u’i nce. and receives ten, or different testimony than the law required at the time ol the com mission of the offense in order to convict the offenders. See also, 1 Kent's Com. 107, Ser geant on Const. Law, 860; Smith’s Com. on Const. Construction 379. in Fletcher ns. Thick 5, Crunch lieps. 188, Chief Justice Marshall, delivering the opinion ot the Supremo Court of the United Stale#, says: An ex post facto law is one which renders an act punishable in n manner in which it wits not punishable when it was committed. Such i law may inflict penalties on the person, or may inflict pecuniary penalties which swell the pub lic treasury. The Legislature is prohibited from (Mtssuig a law by which n man's r state or any /mrt of it may lie seized for a crime which was not declared by some previous law to ren der him liable to llml punishment. 11l the ciseot Ro-s (2 Pick., 108) it was held that if a statute add a new punishment, or in errase the old oue, lor an offense committed before its passage, such an uel would be ex post f who. The party ought lo know, says the court, at the lime of committing the offense the whole extent of the punishment. Now 1 beg the court to bear in mind Unit the act applying the test oath (o attorneys nt luw was passed on the 84th ol January, 1806—very near the end of the struggle. U fixes no period of time, as that lie lias uot aided the rebellion since the date of (lie net, lint it is general. The language is, Tliut 1 have never voluntarily borne arms, Ac., i mlifaeiug the whole period ol his Ills. Now suppose tlic lawyer, or the npplictuit for admission, did bear arms against the Government, or did tdd or countenance those Who did ill 1801, is uot this uii e.x post facto law ns to him ? Was the forfeiture of hin j properly in his office, or of his right of being | admitted to tin* office on complying with tlic I rules prescribed b> the court, guy purt of the ! penalty enacted by Congress against the of-1 tense, rxt or before the time of its commission ? It certainly was not. it formed uo part ol the penalty prescribed bylaw against Ibe offense iu 5SOI; it only add ■ to the penalty already in cx- Hteuee the fortisllure oi his right to practice law in the courts of the United States, or, in the language of Mr. Justiee Chusj!, it indicts a greater punishment than the law am netted to the crime when committed. In addition to the old penalty, it seizes and forfeits mi estate In his office, which could not be done, be cause no previous laws, In the language of C’hlei Justice Marshall, “rendered him liable to that punishment.” And In the lan guage of the Supreme Court of Massachusetts, In Boss' cage, above cited, it does not increase the old. It “adds a new punishment ” for an of fense committed before its passage, ltow could the attorney, at the time ol committing the offense in 1881, know, in Ihe language of the last gunned couit, llte whole extent of the punish nomt which w.m not prescribed till Jan uary. IMIS. It is also »x fxtst facia when tested by the fourth rule laid down by Mr. Justice Chase. It changes tin* legal rule ol all evidence and receives less and different testimony than the law requires At the time of the commission of the oflon *«, lo convict the offender ; in this, that it makes tils (are refusal to answer on oath, whether he has or has not committed the offense conclusive evidence of his guilt, and is in effect a judgment of forfeiture. Tt may he contended here, as it has lieen else where, ihsl this It's! oath is not a penalty nor the set Imposing it a penal statute, hut that It is an additional qualificutioti for office prescribed by Congress, ft is not necessary that 1 discuss here the power of Oougresa to proscriiie other fualifvations, than those prescribed iu the Constitution for its own members, or any otlier ojffeer of the United states. 1 presume there are few advocates of the position that Congress has power to prescribe Ihe qualifications of any but officers of the United States. What power Has Congress to prescribe the qualifications of the Governor of a State, a member of the State Legislature, or a Judge of a State Court * It certainly lias uoue, though they Are all citizens Ol the United States, and all officers. An At torney at law is su oMccr of Court, but not an officer or the United States. Ho is admitted by the Court, under rules proscribed bT It, to practice In the Court, and is am-werobte alone to the Court. This is the oonsfructkm given to it bv Con gress itself. Tlic act of July. 1883, prescribed the test oath for all oMerrs ortho United States. That of January, istft, declares that Attorneys’ •u l.tw shall take the same oath before tlmy are permitted to practice in the United States Cotut'. If Congr*## liad considered them ofh of the United States, f her were fully cm bra,-eil in the Act of July. IrtSS, and h was an ?N\of ffow to pass the Act of January. 80.1 It ts v, ry dear then that the test oath is not pros, ritsd a- an additional qualification for V !a n r was intended as a penalty, M|d tw Statute a, penal one, agalnstth^v In!"a a ir United States n ’? aHa,,f y «'• h*wvers Os Ihismrforthe prwtice. H Int.n.w forfWi* their rigid to practice. ' *° In support of the (Hwiifon that a statute pre- scribing a test oath, which deprives a citizen ot h i- rigid to hold office a penal one, I refer your Honor to the euee ot Leigh 1, Munford s »«• Heps.; and the cose of Dotty 7, Porter s Ata. Rep* Eaeh <if these States had passed strin geut acts against duelling, and had prescribed an oath to be taken iu Virginia by ail officers o the Btale Government: mid hi Alabama by at. State officers ;*»d practising attorneys, that each had not teforc engag 'd in a duel and * , never engage in <>m, while he reinaiued iu tire oflier. Iu -act ease 'be applicant moved to he admitted to the Bar of the Supr- tne Court with out taking tlte oath : aod in each case the Court ustained the in otlou The decision# are lengthy, ImtlMt theyßl" aid* I shall not apologise for portion** of cacti to your Honor. And upou the point to which 1 last referred : I invite the attention of the Court espeeiali} to the fottowiog language of- the Judges, in Leigh's .rose rsige Judge Roane, who was greatly distinguished for lit# ability, S'ty# : However laudable the object of the act to #np press doodling marbe.dt is sttii a highly penal law and must lie construed strictly. It t» ml«- svalhj penal if not tyrannical, in compelling a person to stipulate upon oath, by the 3d sec tion, not only in relation to his past conduct aud present resolution, but also for the future state of his mind. Thus premising that this act is biiihlv ami unusually penal , I will, under the influence of the rules for construing penal stat utist, proceed to apply it to the case before us Judge Ekruing iu the same case says: The act under consideration being a compulsory law (however salutary it may be) imposing on the officers of the Government an oath unknown to the former law of llte State*, or of ths United State# rthough there be uo pecuniary penalty inflicted on those who refuse to take the oath therein presented : 1 cannot but consider it su» a penal statute, aud us such must give it a strict interpretation. Again, he says: Admitting that attorneys are comprehended in the act, it has or ought to have a prospective aud not a retro spective operation, and cannot affect officers of any description appointed to office prior to the passage of the act. In Dorsey’s case, 7 Porter, 3bd, Judge Goldtkwaite says: I have omitted any argument to show that disqualification from office or front the pursuit of a lawful avocation is a fninishment— Unit it Is so too evident to require any illustration; indeed it may be ques tioned whether any ingenuity could devise any penalty which would operate more forcibly ou society. Again lie says: A eitizeu is In formed thut by the Jaws of the Suite he is enti tled to aspire to any office, or pursue any other avocation which any other citizen can. Yet when he is about to enter in the office, or avo cation, bo is required to swear to his innocence of a particular crime ; it then becomes evident that if he cannot truly take the oath required, he is excluded. Uan it be doubted that for all the purposes of the disqualification the guilt of the individual is ascertained ? In what does it differ from ugeneral enactment that a candidate for office shall lie required to prove and estab lish his innocence of a specified crime. Ad mitting a person U> be guilty, he is neither ac cused, tried or convieted by any tribunal known to the laws ; yet he is puulflied with unerring certainty, atui tho utmost celerity; his con science is made his sole accuser and judge; bis punishment commences with the commission of the crime, aud terminates only when he ceases to exist; lie is excluded irom tlic sym pathy of his peers—no legal doubt eau inter vene to produce *his acquittal—an error of his judgment involves his -oul in the awful guilt of perjtlry, or punishes him without guilt. I have no hesitation in declaring that this set provides a mode of ascertaining and punishing guilt which is not only unwarranted by the Constitution, but is also in direct contravention of several of the most important provisions of the declara tion of rights, hy which the liberties und privi leges of the citizens ary guarded. * * * * When once it is admitted or proved that a citi zen lias a right to aspire taofljeo or to pursue any lawful avocation, it seems tome impossible tliut he can be legally deprived of that right by a punishment for an offence coutmjßed without a trinl by jury; aud I can perceiffß no sound distinction between a law which deprives one of his right without a trial, aud that which as certains and punishes his guilt by an illegal mode of trial. He then refers to the Governor’s rigid to grant pardons, and says : We cannot presume that tire General Assembly intended by this act to interfere with the Constitutional prerogative ol metcy vested iu tlte Executive, yet this act, it constitutional, imposes a penalty which cannot te remitted, and inflicts a punish ment beyond the reach of Executive clemency. In the same ease, Judge Osmond says, page 370; This is a highly penal law ; il excludes, un less its terms are complied with, all persons from practicing ns attorneys and eonsijlors nt law iu the Courts of tins State. It must, there fore.; receive a strict construction, iu accordance i with well established principles, and the au thority to pass it be clearly aud fairly discov erable from the Constitution. And ou page 1 880 : It is so offensive to the lirst principles of justice to require a tn.in to give evi dence against himself in a penal ease, that independent of the Constitutional interdict, ho one in this enlightened age will lie found to advocate tho principle. But it may be said this is not tt cause of this kind, as no corporeal or pecuniary punishment is tlic con sequence of refusal to take the oath against •duelling. But are not the results tlic same, whether punishment follows from the admis sion, or is imposed as a consequence of silence. Can Ingenuity make a distinction between a punishment inflicted in this mode, ns scon seqnence of a refusal to take the oath, by clos ing one of the avenue# to wealth and fame, and a positive pecuniary mulct 7 If there is a dif fereuce, 1 think it entirely in favor of tho latter, so far as the amount or weight of the penalty could effect the decision of the case. Ou page 38f: With great deference to the opinion of others who tuny differ from me, I think that the requisition by the legislature, in substance and effect, requires the applicant for a license to give evidence against himself; and that if not withiu the letter, is at least witblu the words of the of the prohibition—the very foundation of which is that every one is presumed to be innocent till the contrary appears. He then refers to the Constitutional provision Hint the crime or offense must be ascertained hy due course of law, and says : The term “due coarse of law ” has a settled and ascertained meaning, and was intended to protect people against privations of their lives, liberty, or pro perty, in any other mode than through the in tervention of the judicial tribunals of the country. But law seeks to ascertain a fact ex alted Into a crime and punirhed iu a particular manner—not by the judgment of a competent Court, but by the admission of tho offender, and construing his silence as evulenco of guilt. In a ease of Greene vs. Biggs, 1 Curtis,' Cir cuit Court, reps. 335, Judge Curtis, of the Su preme ( ourt of the United States, presiding in tlte Circuit Court, detines what is meant hy the law of the land. He says: Certainly this does not mean any a<q which the Assemble ntav choose to pass. If it did the legislative will could inflict a forfeiture of life, liberty, or pro perty, without a trial. The exposition ol' the words as theystand in magnet charts, as well as in the American Constitution, has been that they require “due process of law,” aud in this necessarily implied and included the right to answer to and contest the charge; and the con sequent right to be discharged from it, unless it is proved. Lord Coke, in giving an inter pretation ot these words in magnm chfrt* 9 Just. 50 .'d. say# they mean '"doe pro i-ers of law,” in which is included presentment or indictment, and being brought in to answer thereby And the jurists of flip country have not relaxed this interpretation, it follows, says he. speaking of the case before him, that a law which would preclude the accused front an swering to and contesting the charge, • * * and which should coudemu him lo fine and for feiture unheard, if he failed to comply with the requisition (to give security) would deprive him of Ms liberty or property—not bv the law of the land, but by au arbitrary and unconstitu tional exertion of legislative power. Judg- Pitman, it* the same case, refers to the fact that the statute under consideration ren dered any one engaged in selling spiritous li quors an incompetent juror, and authorized the question to i>e propounded to him, aud says : This law authorizes the court to inquire ol the juror who may be challenged on this ac count : it is true, the law says “ In* may decline to answer,’’ but what then? I# the fact lobe proved by other evidence ? no; this silence is considered as sufficient proof, and he is exclu ded accordingly. He is, therefore, compelled to answer, if he does not wish to be ex eluded as mi worthy to sit a- a juror, or doe- not Wish to be considered a* l concerned in u traffic which may lie considered a* infamous. The maxim of the common law recognized by the Constitu tion is that every man is presumed to be inno cent until he' is proved to be guilty.— The whole spirit of this law appears to me so be at variance with* tlic rights of property as well as person. The Legislature lias no right by an act to confiscate the proper ty of the citizen; it may be forfeited far a vio lation of law, but this may be done without af fecting the rights of the owner thereof to a jury trial. . . . , Gov. Brown also produced the decisions ot •Judge Trigg, United States District Jndge for Tennessee, and Judge Bustced, holding the same position in Alabama, and read parts of both decisions. The Court in each case held the law ex jtost facto and void. These decisions, be said, were'precisely, in point deciding the same question uow before the Court. He then proceeded : I beg the pardon of the Court for having taken up so much time reading authorities, but as they are in point, and are the opinions of able Judges, and a® the question is an important one, I have relied upon the Indulgence of the Court. These authorities establish the points I have taken against this law, to my mind beyond all question: 1. That the attorney is an officer of Court; that he lias a property in that office ; and that it is for life or good behavior. 3. That this act of Congress, violates the so cial compart, Magna Charta, and tne Constitu tion of the United States, by deriving him of that property without due process of law, in this, that he is iu effect convicted, and his property forfeiteckwithout presentment or indictment of a grand jury ; that lie is denied a trial by jury ; that he is denied the right to be confronted with the witnesses against him ; that he is denied compulsory process for obtaining witnesses in his favor ; that lie is denied the assistance of counsel for his defence; aud that lie is com pelled to be a witness against himselfiu a crimi nal case, or that hi® silence is construed as con clusive evidence of guilt. 3, That the act is in the nature of a bill ol at tainder, and is an usurpation by the Legislative Department of the Gov enment of the functions assigued by the Constitution to the Judicial De partment, being a sentence of forfeiture, pro nounced by Congress, which, being a judicial and uot a legislative act, can ouiy be done by the Judiciary after trial and conviction. 4. That the law is not and was not intended to boa law prescribing qualifications for office,but a penal law forf citing lii» property for the commis sion of an act, which at the time of its commission had no sufltapenalty aunexed by law, and that the act or offence is punished by this law in a manner different from that prescribed by law at the lime of its commission; and that the law is for this reason ex post facto and void. But suppose the doctrine to have been fully established that Congress has power to forfeit the properly which au attorney has iu his office, for having• borne..arms against the Government, or countenanced those who did ; and that it may use test oaths for the purpose of ascertaining who is and who is not guilty, compelling each to suffer the penalty of guilt if he refuses to answer—in other words, draw ing contrary to all rule iu such ease a eonelvslve inference of guilt from a refusal to answer; and pronouncing and executing judgment accord ingly. How does the case then stand ? The office of the attorney would be forfeited, so soon as the court met and tendered the oath, aud he refused to take it. But certainly not till then. Why not ? Because Congress makes the refusal to take the oath as conclusive evi dence of guilt; or rather it forfeits his estate because he is guilty; and makes the refusal to take the oath stand in the place of trial by jury, aud a judgment of guilty rendered by the court; Justus if the Legislature of Georgia should puss an act (no matter how absurd) that when a man is found dead in any county, every man, woman and child in the county, who refuses tp swear that he or site .was. not a party to his death, shall be taken by the sheriff and linliged, and all his or her property shall bo confiscated. But now suppose before the o ith is tendered to any, or any one is executed, the pardoning power should grant a full aud free pardon to every person iii the country, could the sheriff after the pardon, with knowledge of its exist ence, proceed to hang every one, or to seize tlie property of any one as forfeited? All must admit tliat he could not. The pardon having been granted before judgment or execution, it leaves the aecnsed in precisely the same con dition in which they stood before the charge was.made against them ; not only with the right to life and liberty, but to the peaceable enjoy ment of all their'property. Now tho truth is, tliat most of the attorneys of this Court have received, either under* the General Amnesty Proclamation of the Presi dent, or upon special application, lull pardon from the Prcfldent of the United States, before any Court lias bceu held in the State, or tlie test oath has been tendered to, or refused to be takeu by any o*e. Admit, then, that the re fusal to’take the test oath stands in place of a conviction of guilt, and it can have no applica tion to anv oue pardoned before taial or con viction. It certainly follows, then, that the property of an attorney iu his office which was not forfeited prior to 'his pardon, cannot now be forfeitek for the offence for which he was pardoned. In support of this position I quote the following authorities: It seems agreed that a pardon ot treason or felony even after an attainder, so tar clears the party from tlie infamy and all other consequences thereof, that he may have an action against any one who afterwards calls him traitor of felon; for the pardon makes it, as it were, anew man —7 Bacon’s Ahr. 416. The court w ill please note the language, that the pardon, even after an attainder, clears the party from the infamy, and all other consequences thereof. A much stronger case than tlie one now at Bar, unless Ihe act of Congress impos ing the test oath is held by the court to be a bill of attainder, and if so, it is unconstitution al and void. But if the net is uot a bill of at tainder tho pardon granted before conviction or attainder must necessarily leave the party iu the precise legal status which he occupied prior to the. commission of the offense. It was formerly doubted whether the pardon could do more than take away the punishment leaving the crime and its disabling consequences unremoved. But it is now settled that a pardon whether by tlie King or by act of parliament, removes not only the punishment, but all the legal disabilities consequent on the crime. 9 Bacon abr, 415; 2 Russell on crimes, 975; Hob, 681; 3 Hal's P C, 2T ’;3 Sale, 690; 1 Lord Rjym, 39; 4State Trials. 68i; Cos. Tenp Holt, 683; 5 State Trials, 171; Fitzg, 167. The effect of such pardon by tlte Kiug is to make tho offender a uew man, to acquit hint of ail corporeal penalties , and for feituns annexed to that offence, for which be obtains hispardou. 4 Blackstoncs Com. 403. I might add other authorities, but deem it un necessary. Those already quoted establish the position beyond controversy, that the. effect of the pardon is to acqnil the offender of all pen alties and forfeitures annexed to the offence. It follows conclusively that the attorney or appli cant for admission to the Pur who has received a pardon, before indictment or conviction, stands before this Court in precisely the con dition in which he would have stood; aud with all the rights which he would have had, if he had never committed the offence To hold that Con “Tee- can change thus, is to .bold that ( on* gress lias power to dUtroy the pardoning power vested by the Constitution iu the President of the United States alone. I trust I might safely rest this ease here, but before I take ray seat 1 desire to make a tew remarks on the law of nations as to the relative rights and duties of those who were lately al war with each other. In doing so I shall care fallv avoid anv exprvssiuu bnended to reflect upon any one in po»itiou,or any reference to present party division#. Suffice it to say that aft ir four long and dreary-years of bloody con flict, Geu. Lee surrendered Tiis army, and ten dered his sword to Gen. Grant. The latter with a magnanimity that if he had done uo other great deed, must have immortal ized life name in history; appreciating the abil ity, the merit and the motives of his great an tagonist, returned it to him as reported, with the kindest expressions, saying; you are not cofiqhered, but overpowered by superior num bers awl resources. Aud in this connection. excuse me for saying in this place, that the Southern people owe a debt of gratitude to General Grant for the firmness with which he has stood by the terras of the capitulation ; the liberality which has characterized liis whole conduct’since that time; and the many act of kindness which lie has performed for Southern men in adversity and distress. AU these show the nobleness of his nature. Soon after this surrender, President Lincoln fell a victim under the hand of the black-hearted, bloody assassin, aud the present excellent Chief Magistrate was called to the position at a most critical and try ing period in our history. Asa Southern mau 1 who had stood by the Government during the struggle, he bad bteu bitterly denounced by the whole Southern people. Without knowledge of the loftiness of his soul, the expausiveuess aud intensity of his patriotism, aud the purity of his motives, they shook with anxiety and fear when he grasped the helm of power while they lay prostrate at his feet. Had there been viudietivcucss or revenge in his nature, or had his mind been cast in a smaller mould, the country would still have been drenched in blood after the thuuders of battle had teen hushed— the South would have been utterly ruined, the prosperity of the whole country _ de stroyed, aud re-untou with fraternal feelings would have been an impossibility for gen erations to come. But rising above all per sonal and selfish considerations, and looking alone to the good of the whole country, he issued his Proclamation extending universal amnesty, with limited exceptions to tlie whole people of the South, by which he pledged the faith of the Government, (for lie as Commander-in-Chief was its representative,) that ou tlie acceptance cf the .terms proposed by him, aud ou taking the oath of allegiance, the people of the South should* lie restored to all their lights in the Union under the Constitu tion. The people en masse, Attorneys at Law included, Judge Law among the rest, accepted the terms, and many who were not embraced iu the general amnesty, on special application re ceived pardon. Here then arc found the terms of the capitulation to which the several States in their aggregate capacity, as well as the people individually, have faithfully conformed. They have even changed their State Constitutions, submitted to a revolution in their whole social and labor system, and given up hundreds of millions of dollars in their slaves, to make the compliance ou their part full aud complete. . Now. in consideration of all this, I trust tho Courts will hold tliat the law-making power is bound also, aud that the past should be forgiven and forgotten. Upou this subject I call your attention to the language ot Vattel in his Law of Nations in his chapter upou Civil War. He says : And if there existed no reason to justify the in surrection (a circumstance which perhaps never happens) even in such c;ise it becomes necessary, as we have above observed, to grautan amnesty, whentl.e offenders are numerous. When thcam nesty 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 done during the disturbance. Aud iu general, the sovereign whose word ought ever to be sacred, is bound to the faithful observance of every promise he lias made, even to rebels. Vattel's Laws of Na tions, pp. 423 and 434. Tim terms of capitulation have uot only been agreed upon in this ease. But the Civil War is at an end. The vanquished have in good faith complied with-those terms on their part. The Northern construction ol the Constitution Is established, aud slavery is forever abolished. — The amnesty lias been published and accepted. Then, in the language of this distinguished author, the “ past should be buried in oblivion,” and neither Judge Law nor any one else should be called to account here or elsewhere, by-'test oath or otherwise, for what was done by him in accordance with the usages of civilized’warfare, “ during the disturbance.” This view of. this question has also the sanc tion and authority of Divine Inspiration. Iu the Bible the distinction between tlic blood of war and the blood shed in pence, is clcariy .drawn —the binding obligation to carry out in good faith an amnesty once tendered and accept ed Is enforced;-aud the infliction of punish ment upou the parly who has received tlic par don or amnesty for acts done during the war, is eoudemued. After the death of Saul, King of Israel, war existed between his sou as his heir, and David, the anointed of God, about the succession to tlie throne. Abner commanded the forces of the sou of Saul, and Joab those of David. A battle was fought, in which Joab was victorious. While Abner was retreating, he was followed by Asahel, the brother of Joab, who, after hav ing qpeu warned t#> desist from the pursuit, which he refused to do, was slain by Abner. After this Abner songht an interview with Kiug David, received amnesty, aud was sent away in peace. Ou learning this, Joab was greatly displeased, and without the knowledge of the King, scut aud brought him back and slew him because he had slain his brother in battle. In other words, Joab slew Abner after he had made peace with the King, because of au act done during the war. At a later, period in King David’s life, his sou Absalom rebelled against him, and drove him from his throne, and* without just cause plunged Israel into civil war. Absalom made Amasa the leader of his forces, and the forces of King David were led 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 buttle Absalom lie cam e entangled by his hair in the boughs of a tree, where Joab found him and slew him, in violation of the King’s orders, though peace had neither been made, nor had Absalom beeu pardoned, nor did the act violate any of the then usages of war. King David wept bitterly over the death ot his rebellious son. After wards Amasa, who commanded the armies of Absalom during the war, was pardoned by the King, and placed in command of his forces, in an expedition against Sheba, who had raised an insurrection, Joab met Aiuasa on the march, and smote and slew him. King David was a man inspired of God, and is said to have bceu a mau 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 death-bed, ou the brink of the grave and the verge of eternity In this solemn hour, in full knowledge of his condition, filled with the spirit of inspiration, he gave his memorable charge to Solomon, his son, who was to suc ceed him upon his throne. Iu that charge, among other things, he eornmandeif him to slay Joab, or, in other words, not to let his hoary head go down |o the grave in peace. Not because he slew Absalom, the King’s son, iu violation of the King’s order. The blood <Jf Absalom was shed in battle; it was, there fore, the blood of war; and much as it grieved the King’s heart, he remembered it not upon his death bed, against Joab as a crime. But Joab had slain Abner and Amasa after the war, in each case, was at an end, and thev .a peace with the King. For th“i? T* David ordered Solomon, his sm. s l* u S b ter the life of Joab * Why» i n DaVta” language, because he shed “the hi!L? Wn war in peace. ” This show ed th. teT- of tion which in the estimation of this i, • lga ' man, rested upon the victor, after he i,. a Plred peace and extended amnesty.- teWe, ?* de rights of the vanquishedg»*d’to m .inVk l ? e utmost good faith in earrMg out £ ,he he! was thouhedding trf-t&e blood of war slaughter of Abner was the sheddim- n r ~ blood of war in peace. The first homicide, tlie second was murder. J In conclusion, I have only to add that I h® satisfied my own mind, and I trust the minri If the Court, that the statute requiring ° oath is iu violation of the Cohstihrtiono/the tlrat the DkirnTtaw on*' a twl and agree, tliat when war is at an end, and peace i proclaimed or amnesty and pardon granted tn the vanquished as so the applieant iff this all the past must be bttried in oblivion andnn one should be called to account for wlnt wll done “during its continuance.” And that who forfeits the property of those who have made peace; for acts done during hostilities violate the law of nations ; while he who sheds the blood of those who have conformed to the terms of the capitulation after hostilities have ended, “sheds the blood of war in peace” and violates not only the law of nations, but the law revealed by the living God. [From the Montgomery Ujjp Charles 6. Baylor. Who does not remember Charles G. Bavlor ’ The great fire-eater of 1857, who, in order to prepare the South lor separation from the North, proposed the establishment of a direct line of ships to Europe from some Southern port. Who does uot remember how he fnl mined through the South, breathing fire from his nostrils, and, like Job’s war horse, pawed iu the valley and snuffed the battle from afar ofl ? Charles G. Baylor literally pawed in'tl.e Mississippi valley, where he seenred sub scriptions for his “Direct Trade” eutSprise pay. Wo in cotton. He was au honest man for’ whets he received half qf the cotton upon the subscriptions, he always left' the other half as security. Who can say that, because Charles G. Baylor failed to get up the ships and failed to return the value of the cotton already col looted by him, he was not an honest man a true, loyal, patriotic hero? He could poiut with pride to the other half of the cottou and say : “ Gentlemen, I have left ten hale# with you, as security for the ten bales you haveglveu me ; what better security would yon wish ?’’ Col. Humphreys, of Mississippi, relative of the Governor, could say. that Mr. Baylor col lected one hundred bales of cotton from him to break down the odious oppression of the North. The lamented editor of the Mail, now gone to his long rest, could have told of the fire which Baylor eat daily, and the number of Yankees lie devoured for breakfast. , But, if Jonee Hooper were living to-day, he would advise his friend Simon Suggs to dis continue his oeetipatiou, for Charles G. Baylor lias outstripped Simou. Simon Suggs has not been subpoeaued to appear before the Recon struction Committee, but Charles u. Haylorhas. Listen to Baylor’s testimony, Simon! and blush : “ Charles G. Baylor, who had resided in Georgia privately and officially since T 857, and during part of the war, was Commercial Com missioner of tlie State, but has not been there since Lee’s surrender, testified that the exten sion of the franchise to the .freed men, either upon an educational test or property qualifica tion, would create for Southern society a large and influential population on the side of law, social order and industry.” Just here, it will be well to remember, that Gov. Brown denied that Baylor was ever ac credited by him us a Commissioner from Geor gia. Although Baylor has not been iu Georgia siried the surrender, he sweat's on oath that: “ The freedtrieo are generally anxious to own land, but most of the planters are unwilling so sell to them. The Treedmcn are capable of managing land and raisiug cottou.' The ne groes are universally loyal to the Government and are ihneh more intelligent than people gen erally suppose.” Although Baylor acknowledges that he has not been in Georgia since the surrender, he speaks with accurate' personal knowledge of the facts when he says that: “ Any measure emanating from Washington, with the sanction of the Government, would be accepted and acted on. The poor whites arc sick and tired of agitation aud politics. But they have no more control over the political movements and condition# of the South than they did beiore the war, so that practically their good disposition, aud the good disposition of tlie freedmen, amount to nothing at ail.” Oil! Simon Suggs, thy glory is eclipsed ! Lit tle did’st thou think, when ten years ago, Bav lor and thyself fixed up the 1 direct trade ’ cot ton transaction iu a back room of “ the Hall,” that thy partner would .pocket the cotton and sit in dignity at Washington, whilst thou, bold warrior of the Tallapoosa Rangers, remain in pecuniary abeyance at Dadeville ! Come forth, Simon! The Reconstruction Committee needs your testimony! (From the Montgomery Mail. An Attrocions Calumny. Gen. Howard, who presides over the Bureau, lias been talking at the religious anniversaries which are being held iu New York. During the talk he uttered this atrocious calumny against the brave and gallant soldiers of the Confederacy: “ When the rebel army surrendered a large part of the men organized in secret bands to harrsss the fredmen, murder soldiers, break the windows of sehoolhousos, etc.” This is a falsehood, and nobody knows it to be a falsehood better than Gen.’Howard and his assistants. If a large part of the soldiers of the late Confederacy had formed eecrct bands to do as Howard says, there would not be a negro or soldier left outside of a fort. The truth fe that most of the stealing, robbery of negroes, Ac., has been done by. strangers; and it a Confederate soldier lias been guilty of a crime now aud then, we cannot recall one which approaches in barbarity to that of the late Union soldier, the Dutchman Probst, who recently murdered a whole family at Philadel phia. Gen. Howard, then, according to the report, “ gave a forcible description of the poor whites, a listless, stupid race. It was a relief to find a woman crying; she was an exception to the general listlessncss.” If this “ listless, stupid race” cannot read, the General will admit that they knew how to “ make their mark” in the late war, and if the women, in blank despair, cannot shed tears, it is because they have had something so hot in » corner of their hearts that moisture is out of the question. If, in the future, the Union is to be built upon a foundation coeval with th# years, and blank despair is to give way before hope, this systematic course of the Bureau and its agents must be changed into a more humane and truthful. If the President, in accordance with the sug gestions made by Gens. Steadman and Fuller ton, in the ease of Virginia and North Carolio 8 ' were to place the Freedman’s Bureau in the hands of the regular military authority, instea*- of the Amiuadab Sleeks and Puritans of New England, the era of good will and unity would be more rapidly advanced. H. P. Hammett was elected President oi the Greenville and Columbia, S. C-, Railroad os. the 4th instant.
