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THIOIS OF SCIISCHIPTIOA.
D.iily, per month $1 (JO
Daily. twelvemonths 10 tw
Weekly, »lx month- 2 00
Weekly, one year 3 00
I judgment of your Honor will be, neither do I [ can deprive the attorney of his office when he
i accuse thee. He stands with the presumption : has been convicted of violating neither the
i of innocence in his favor, and as no proof is of-; law of the land, nor the rules of the court
j fered to the contrary, that presumption becomes i But I may be asked, if there exists no power
conclusive. How tlien is this Court to punish ; in the“Govemment to deprive an attorney of his
him by the forfeiture of his property in his pro- j right to practice. I reply, unhesitatingly, that
fessiori, and by taking from him his means of, there doe3 not unless he has forfeited it by his
livelihood for the commission of an offence, of own misconduct, in the violation ot the law of
, per rqnare.
3 00
ti 00
3 00
5 00
1 50
3 00
1 00
KATES OF LEGAL ADVEBTISI1VG.
Sheriffs' Sales, per levy of tea line*, or less $2 50
Sheriff »’ Mortgage fi. fa. Sale* per square 5 00
Tax Collector* Sales, per square 5 00
Citations for Letters of Administration 3 00
Citations for Letters of Guardianship...; 3 00
Letters of Application for Dismission from Adminis
tration 4 50
Letters of Application for Dismission from Guar
dianship .
Application for leave to Sell Land
Notices to Debtors qnd Creditors
Sales of Land, &c., per squre
Sales of Perishable Property, 10 day
E-trav Notices, 30 days,
Foreclosure of Mortgage, per square, each time
Sales of land. &c., by administrators, executors or
Guardians, are required by law to be held on the first
Tuesday in tbe month, between the hours of 10 in the
forenoon and 3 in tbe afternoon, at the court house in the
county in which the property is situated.
Notices of these sales mii-t be given in a pnblic gazette
4u days previous to the day of sale.
Notices for the sale of personal property must be given
In like manner, 10 days previous to sale day.
Notices to am debtors and creditors of an estate must
be publish^ <0 (feys.
Notice thtn^ppTication will be made to the Court of Or
dinary for leaf? to sell land, 4c., must be published for
two months.
Citations for letters of administration, guardianship,
Ac., must be published 30 days ; for dismission from ad
ministration, monthly C months; for dismission from
guardianship 40 days.
Rules for foreclosure of mortgage must be published
monthly for 4 months ; for establishing lost papers, for
me full epace of 3 months ; for compelling titles from
executors or administrators, where bond has been given
by the deceased, the full space of 3 mouths.
Publications will always be continued according to
these, tbe legal requirements, unless otherwise ordered.
Governor Joseph K. Urotro’s Argument
on tbe Lawyer’* Teat Oatli, before Judge
Ersklne, of tbe United Males District
Court for Georgia, at Savannah.
In tlie United States District Court, Thursday,
Judge Erskine, according to appointment, heard
the arguments of Judge Law and Ex-Gov. Jos.
E. Brown upon the unconstitutionality of the
Test Oath, as applicable to lawyers; the question
having arisen from the motion of the Hon. Win.
Law, to be permitted to continue his practice in
the Court in which he had practiced for forty-nine
years, without taking the oath.
May it Please Your Honor :
I am well aware of the great importance of
the question now under consideration. He who
denies the validity of a solemn act of Congress
on account ot its unconstitutionality, should do
so with d.-icrcnce and respect fortlie department
ot tin; Government by which it is enacted, as well
ns in* the judicial tribunal which is asked to de-
da;-.-it null and void. I trust I approach this
qn. ilion in a proper spirit, and with proper mo
tives. I11 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 Government. At-
ter 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 redress of grievances anil the general admin
istration of justice. I trust they may never again
he compelled to give place to military tribunals
or military rule. Of the peace and quiet which
is being restored to the. country, I would say as
t lie great'EnglisLi Common tutor says of his govern
moni, Kuto perpetual In the discussion of this
question I am satisfied that reason and authority
are more in demand than declamation or even
eloquence If I possessed t lie latter, which I do
not claim, this is not tlie proper occasion for its
display. As 1 have copied most of the authori
ties which 1 cite literally, and as they are nu
merous, and I have not access at present to some
of tlie 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 liis freehold or liber
ties, or free customs, or lie outlawed or exiled, or
otherwise destroyed or condemned, but by law
ful judgment of his peers, or by the law ot the
land.
Judge Blacks!one says of this provision in tlie
great charter, that it protected every individual
of tlie nation in tlie tree enjoyment of his life,
his liberty, and his property, unless declared to be
forfeited by tbe judgment of his peers, or the late
of the land. [Com. vol. 4, page 424.] Again, in
vol. 1, page 180, lie says: And by a variety of
ancient statutes, it_is enacted that no man’s lands
or ^oods shall be seized into tbe king’s hands
against the great charter and the law of tho Jami ;
and that no man shall be disinherited, nor put
out of franchises or freehold, unless he be duty
brought to answer, and be forejudged by course of
law; and if anything be done to the contrary, it
shall be redressed and liolden for none.
Mr. Yattel, in his standard work upon the law
of nations, page 33, while treating of the princi
pal objects of Good Government, says: Tlie so
ciety is established with a view of procuring to
those who are its members, the necessaries, con
veniences, and even pleasures of life, and, in gen
eral, everything necessary to their happiness—of
enabling bach individual peaceably to enjoy bis
own property, and to obtain justice with safety
anil 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 in
dustry.
It is laid down in the Declaration of American
Independence, ns 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 (lie governed.
By the above quotations, and others that might
be added, which are doubtless familiar to your
Honor, it will be seen, that tlie celebrated Charter
ot English liberty, the language of the great Eu
ropean author, and the American Declaration of
Independence, all concur in laying down as fun
damental principles, which underlie the struc
ture of good government in every free State,
which no legislative body has a right to ignore,
disregard, or violate; thnt it is the duty ot the
Government not only to encourage labor and
stimulate industry, but to so order matters that
every man may live by his industry; and that
tbe pursuit of happiness in every innocent man
ner agreeable to his inclinations—the exercise of
honest industry in any trade or profession which
he may select tor the purpose of procuring a live
lihood'; the acquisition of property by his labor,
and tlie protection by government ' of liis life,
liberty, person, and property against every illegal
or unjust violation or invasion, are inherent in
alienable rights of the citizen or subject, which
*10 government can disregard or violate without
incurring the just censure of enlightened reason
?or the exercise of tyranny and oppression. But
•;if tlie legislative department of the Government,
mo matte; by what motive it may be actuated,
should so far transcend tlie proper boundaries
which have been prescribed to its authority, ns
to invade these sacred rights, protected as they
nre by a law higher than its enactments, it is the
pride of our system, that an independent judi
ciary, whose duty it is to hold the scales ot jus
tice in equipoise, as well between the citizen and
the Government, as between citizen and citizen,
will vindicate the majestv of the law, and main
tain the good faith and justice of the Govern
ment, by declaring all such enactments as vio
late, the fundamental law, inoperative, null, and
void.
Let us 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 ot Court for nearly fifty years, whose
private and professional character arc of the
most elevated rank ; who has filled with distinc
tion the position of a Judge; who was a Union
man as long as there was a possibility ot prevent
ing the rupture; who never bore arms against
the Government of the United States, or held of
fice under the Confederate States; who has vio
lated no rule of the common law; committed no
contempt of Court; collected no money which
he has refused to pay over; acted in bad faith to
which the presumption of innocence, by a rule of
law which you cannot disregard, is conclusive in
his favor ? Such a proceeding would not only
violate the great principles of magrui charta, but
I would be subversive of the very foundations up
on which our system of government rests. In
place of tlie salutary rule above mentioued, which
lias [been consecrated by tlie wisdom of ages, it
would establish the contrary one, that every man
Is presumed to be guilty of a criminal violation
of the law till he proves his own innocence. If
he has been guilty of no crime, all must agree
that he should suffer no penalty or forfeiture.
Tlie very fact that it is proposed to forfeit his
right to practice his profession for his support,
presupposes, contrary to tlie truth, that his guiit
has been established before a court of competent
jurisdiction. Otherwise tlie forfeiture is an un
warrantable and defenceless violation of the great
principles of organic law, laid down by the high
authorities which I have quoted, and recognized
by every enlightened jurist who lias lived under
free institutions, in every age.
But it may be said that large numbers of per
sons, and among them many lawyers, have been
guilty of treason, 01 of encouraging rebellion
against tlie Government of the United States;
and that Congress lias adopted this ipode of com
pelling each to discover under oath whether lie
is one of the ir mber; and if he refuses to make
the discovery, that he shall be presumed to be
guilty, and the confiscation of ills property in
his profession shall be the penalty. Truly, this
i3 what Congress has attempted to do, but upon
what principle, and by what right ? If he has
been guilty of a crime, it is the right of the Gov
ernment to have him prosecuted, convicted, and
punished by the judgment of his peers, or the
law or the land ; but without such conviction,
the infliction of corporeal punishment upon him,
or t lie confiscation of his estate, or any part there
of, is unauthorized tyranny; nor has the Gov
ernment any right to compel him to appear and
give testimony against himself, to aid it in pro
curing such conviction. Nemo tenebatur pcodere
se ipsum is the well established rule of tlie com
mon 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 forfeiture
of his estate, the witness is not bound to answer.
And if the tact to which he is interrogated forms
but one link in the chain of testimony which is
to convict him, lie Is protected. And if the wit
ness declines answering, no inference of the truth
of tlie fact is permitted to be drawn from that
circumstance. [1 Greenl. Ev., sec! 451—453.]
The Constitution of the United States, as ori
ginally formed, contained no provision guarantee
ing to the citizen protection againts the violation
by Congress of this great first principle. But
this protection is carefully provided in the fifth
article of the amendments, proposed at tlie first
session of the first Congress, which was adopted
in these words:
No person shall be held to aiiswer for a capital
or otherwise infamous crime, unless on a present
ment or indictment of a grand jury, except cases
arising in the land or naval forces, or in the mili
tia when in actual service in tirue of warorpub-
lic danger; nor shall any person be subject for
the same offence to tie twice put in jeoparday of
life or limb ; nor shall he he compelled in any crim
inal case to be a witness against himself, or lie de
prived of life, liberty, or property without due
process of law; nor shall private property be
taken for public use without just compensation.
This is the fundamental law of this land, and
any act of Congress 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 of the
Constitution not only denies to Congress the
power to compel any one to be a witness to cri
minate himself, but it declares plainly and pos
itivcly, that no one shall be deprived of life, liberty,
or property without due process of law, giving
property precisely the same protection which it
gives to life or liberty.
Has an attorney at law a property in his pro
fession ? If so, the Constitution of the United
States, as well as Magna Charta, declares that lie
shall not be deprived of it without due process
of law.
A11 attorney at law is an officer belonging to
the courts of justice. [1 Bacon’s Abr. 474.] An
officer is one who is lawfully invested with an
of ice. [7 Bacon’s Abr. 270.] Offices which are a
right to exercise a public or private employment,
and to tula* tho foes nad emoluments thereto be
longing, are also incorporeal hereditaments,
whether pnblic, as those of magistrates, or pri
vate, as of bailiffs, receivers, and the like. For a
man may have an estate in them, either to him
self and his heirs, or for life, or for a term of
years, or for during pleasure only? [Blackstone’s
Com. 86.]
By these quotations, it appears that a man may
have an estate in an office. What is the meaning
of the word estate ? In its most extensive sense,
it is applied to signify everything in which riches
or fortune may consist, and includes personal
and real property. [Bouvier’s Law Doc. 516.]
According to Judge Blackstone, hereditaments
are a species of estate, and lie declares an office
to be an incorporeal hereditament.
An attorney at law is then, according to the
authorities, an officer of the courts, legally invest
ed with an office. That office is an estate, which
may be for life, or for a term of yearn, or during
pleasure. That estate is property. And the Con
stitution of the United States says no one shall
be deprived of property without due process of
law.
It matters not whether it is attempted to be
done by means of a test oath, compelling a
party to criminate himself, or in what imaginable
form, other than by due process of law, it is alike
void, whatever may be the means resorted to for
its accomplishment. What power then' has
Congress to deprive an attorney of his property
in liis protession, simply because lie refuses to
swear whether he has or has not violated the
criminal law of the land, when lie has neither
been charged with, indicted, or convicted of any
such violation. I deny that it has any such right.
This attempt is in violation of tlie fundamental
law, as expounded by the highest authorities, aud
is absurd within itself; and I know of no rule
governing courts which could justify your Honor
in the enforcement of any such enactment. The
statute is a nullity, and must, in m3' opinion, lie
so held whenever and wherever it is brought in
question before aity intelligent court.
I further invite jour Honor’s attention to the
fact, that the office of Attorney and Counsellor is
recognized as well bj* the Constitution and laws
of the United States as by the common law.
In the 6th article of tbe amendments to the
Constitution, it is declared, that in all criminal
prosecutions the accused shall enjoy the right oi’
a speedy and public trial by an impartial jury of
the State, or district wherein the crimes shall
have been committed : to be informed of the na
ture and cause of the accusation ; to be confront
ed with the witnesses against him; to have com
pulsory process for obtaining witnesses in liis
favor, and to have the assistance ot counsel for his
defence.
The judicial act of 1789 provides, that in all
the courts of the United States the parties may
plead and manage their own causes personally ;
or by the assistance of such counsel or attorney
at law, as bj- the rules of said courts respectively,
shall be permitted to manage or conduct causes
therein. 1
The conn will observe that the Congress of 1789
did not attempt to prescribe the qualifications of
tlie attorney, or to saj T who shall or shall not,
practice in the courts, or for what cause an attor-
nor clknll <atrir»fcpn from thp rnll^ Thnt lpfY
the land, or the rales of the court, of which he
must have been convicted by due course of law,
when the court of which he is an officer, and to
which alone he is amenable, may strike his name
from the rolls. As he is admitted by the court
as an officer of court, without limitation as to
time, or during good behavior, he may hold the
office for life unless he forfeits it by misbehavior,
of which he can never be convicted without trial.
In Bacon’s Ajar., vol. 7. page 308, the law on this
subject is laid down in the following clear aud
strong language :
“ If an office be granted to a man to have and
enjoy so long as he shall behave himself well in
it, the grantee hath an estate of freehold in the
office; for since nothing but his misbehaviors
can determine his interests, no man can fix a
shorter term than his life; since it must be his
own act (which tbe 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 holds
his office. And it is precisety 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 States Courts
having been dismissed from office without pre
vious trial and conviction of misbehavior ?
I will now proceed to show, (while tlie mode
of trial is not the same), that this is the rule ap
plied by courts to attomejrs: An attorney may
be struck from the rolls for any ill practice, at
tended with fraud and corruption, and commit
ted against the obvious rules of justice and com
mon honesty. [1 Bacon’s Abr., 586.]
This is the general rule of law upon the sub
ject ; but as the following quotations will show,
lie will be heard when the charge has been pre
ferred, and must be convicted before he will be
deprived of his officer
When an attorney has been fraudulently ad
mitted, or convicted after admission of felony or
other offence, which renders him unfit to be
continued as an attorney, he may be struck off
the rolls.
And if an attornej' practices after he has been
convicted of forgery, perjury, subornation of
peijury, or common baratry, he is liable to be
transported, [Same authority, page 508.]
An attorney will be struck from tbe rolls when
lie has been convicted of subornation of peijury.
[1 McCord’s S. C. Reps. 379.]
But the Court will not proceed against such
attorney before conviction. [2 Halsted, 162.]
An attorney convicted of felony and punished
for it was struck off the rolls. [Exparte Brown-
all Cowper’s Reps. 829.]
On a mere allegation that an attorney has been
guilty of larceny, liis name will not be stricken
off the rolls: his conviction must precede. [Ba
con’s Abr. 506.]
1 teen-twentieths ot the property of Georgia, and
indeed of the South, by the exercise of this pow
er; for if it has power to forfeit the property a
lawyer lias in his profession by this means, it lias
as much power to confiscate' any and all other
property of all who refuse to take any test oath
it may prescribe to auy or all the people of the
United States. Establish the principle that Con
gress can exclude all men from office, or the
practice of any profession or avocation, who do
not swear that they never bore arms against the
government, and it follows that it may enact a
law that no man shall hold office who fails to
swear that he did bear arms in defense of the
government. If the enactment of test oaths be
comes the settled and approved policy of the
government, the people of other sections of the
Union will soon find that the Southern people
are not the only sufferers.
I may be told that the British Parliament, een
turies ago, enacted test oaths, and that no man
was allowed to hold office, until he had taken the
sacraments of the Church of England, and the
oaths of abjuration, Ac. This is true; and it is
also true, that the enlightenment of the a<*e, and
the triumph of reason, have long since 0 swept
these oaths from the statute book, and the Jew
and the dissenter sit to-day bj' the side of tlie
churchman, in the Parliament of the tealrn.
But it does not follow, from this historical fact,
that Congress now has, or ever did possess, any’
such powers. The Parliament of Great Britain
has established a particular church. Has the Con
gress of the United States anj' such power?
Parliament has established an aristocracy, and
provided for the grant, by the king, of titles of
nobility. Can Congress do tbe same ? Certainly
not Why not ? Because there is a written Con
stitution in this country.which expressly forbids
it There was none in England. Such is the
omnipotence of the Parliament of Great Britain,
that, with the consent o? the King, it may change
what they call the Constitution at pleasure. The
Congress of the United States, with the Presi
dent, has no such power. The Parliament of
Great Britain has the power to confiscate the
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 deprive a subject of
bis property, without due process of law. The
written Constitution ot the United States, which
it has no power to change, denies to Con
gress the power to do either. From the differ
ence in the powers possessed by Parliament, and
ill readily perceive the
it oaths can, as prece-
ie advocates of similar
the attention of your
question. I have al-
ngress of the United
iiej' shall be stricken from the rolls. That is left
as it should be, to tlie courts or principal officer,
to which the office of attorney is incident, to be
determined bj- rule of courts.
The office of attorney at law is clearly incident
to that of a court, or of the judge or judges of
the court; and the incident officer is only amen
able to the principal officer, aud maybe removed
by him. Congress lias no such powers. In 7
Bacon's Abr. 284, and the cases there cited, the
Jaw upon this subject is laid down in the follow
ing words :
Mj ejient; nor has |Vi w'ra \ i!is 8rate° or of i Wherever an office is incident to another, such
convicted under an\ j 1 _ . " \ ’ r.’n I inridpnt office is resnlarlv srantablc by him who
foundation it
of the office
inseparably in-
could not by
anv law or contrivance be taken away from him.
counselled, countenanced, or encouraged any one
who bore arms against the United States, is to
l>c driven from the bar. r.uless your Honor can
•^protect his rights by the decision which you may
jl*4 ft your duly to pronounce in this ease.
While lip refuses to take tlie test oath, who
says he ices been guilty of rebellion, or treason,
or of her crime or misdemeanor.jprohibited liy
any law of the United States?
the Government stands here as his accuser, and
upon what charge and specifications V What
provision of the penal code has he violated, and
when and where did lie do it, and who arc the
witnesses against him ? What grand jury lias
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 ot tlie com
mon law, which lias been approved by the ablest
jurists, and sanctioned by the wisdom of ages, is,
liiat every man shall be presumed to be inno
cent till the contrary is proven. The attorney js
entitled to the benefit of this salutary- rule. He
Jf the King’s grant of such incident office was
void, and so held by his own courts, and it could
not be taken away from the principal office
by any I< 11r or contrie<inee, it follows that the
King and Parliament together could not right
fully' do it. Where then does tlie Congress
of the United States, restrained by a written
What officer of | Constitution, get power to do that which the
King and Parliament together in Great Britain,
without such restraint, have no power to
do ? The office of county clerk in England
which from time immemorial has been an inci
dent ot the office of Sheriff, is certainly no more
inseparably connected with the sheriff"s office
than is the office of attorney in this country with
that of the courts, and yet the transcendent
power ot the King and Parliament cannot, with
out the utter disregard of all principle and pre
cedent, deprive the principal office of the con
trol ot the incident.
I do not deny that Congress may lay down
general rules regulating the proceedings of the
courts, and the conduct of attorneys; but 1 do
stands before you to-day as did tlie woman over j deny that it can, without usutyiation, destroy the
“ighteen hundred years ago. before the Judge of j constituted courts, or deprive them of their
aU the earth with no accuser, and I trust” the I legitimate control over the attorneys; or that it
These are the rules which govern in cases
when it is proposed to strike an attorney from
the rolls for a violation of public law, which
will only be done upon his conviction of such
violation. As he is an officer of tiie court, and
amenable to the court, he may be struck for
a willful violation of a rale of court, when his
act involves criminality, or for a willful contempt
of court, but never without a hearing, 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 con
fiscate the property, whether in an office or any
other kind, of a citizen suspected of disloyalty,
or having aided in rebellion, and deprive him of
liberty or property till he lias proved, or, at least,
sworn to liis innocence. 1 deny it. Congress
has no right to violate the Constitution, 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, unless on a presentment or indictment of
a grand jury. The exception to the rale 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 r be held to answer
without such indictment or presentment of a
grand jury. Nor can Congress deprive any per
son (not without the exception) of life, liberty or
property, without due process of law. Congress
may, by law, provide for the forfeiture of the
estate of a person attainted of treason, but then
only during his life time. There can be no for
feiture, even for treason, till there is a conviction,
and the moment tlie person convicted is executed
the forfeiture is at an end. And as there can be
no corruption of blood, the estate, if inheritable,
immediately descends to his legal heirs or devi
sees. In no other instance, that occurs to me
now, does the Constitution give Congress the
power to forfeit the estate or property of any
one, for anv ofience whatever, except in the case
of judges and other officers, on conviction on im
peachment, which works a forfeiture of their
estates in their offices, but of no other property
or estates, and never before conviction.
Congress has, therefore, no right to deprive
any' lawyer of his estate in his office, or of any
other property, (not needed for public use upon
just compensation) until he has been convicted.
Nor has Congress any right to make him a wit
ness to prove his own guilt, or to draw any- in
ference of his guilt from liis refusal to answer.
[7 Porter’s Reports, 381.]
But suppose I were to admit that Congress
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 ; and so proclaimed by our noble,
patriotic President, whose bold stand in favor of
the restoration of constitutional liberty to the
whole country will endear liis name to posterity
when tlie 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
South has acquiesced 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, under the solemnity' of
an oath, for their future loyalty. That, pledge
will never be violated. I think your Honor will
not accuse me of vain-boasting when I say I
know something of the feelings and sentiments
of the people ot Georgia, and I tell you to-day,
that, whatever may have been their opinions as
to the original abstract question ot 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 jurisdiction to pro
nounce an authoritative decision in the case—
that was the high Court of Appeals, recognized
by all nations as oi universal jurisdiction, where
grave litigated questions between States or com
munities, that no other court has power to adju
dicate, are in the last resort decided by wager of
battle. This case has been carried before that
court. Both parties were abty represented. The
case is decided; the judgment is against us. We
have already paid au enormous bill of cost. But
we acquiesce in the result, and swear before
Heaven that we will abide by- it in good faith.
Admit then, for tlie 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
case laid down in the books where the reason of
tlie law having ceased, tlie law itself ceases.
I have already shown, I trust, to the satisfac
tion of the court, that the office of a lawyer or
his right to practice his profession is property, and
as such that if is protected by the Constitution of
the United States, and that lie cannot be deprived
of it without due process of law. If Congress
has power to deprive him of liis property on his
refusal to take a test oath, the tender of which it
will not be pretended is due process of law, it
has the same power to deprive him of his library,
his dwelling house, choses en action, and any and
all other property he may possess, till he takes
the oath, and if lie can never take it, the confis
cation of his whole property may become com
plete and perpetual, without indictment, trial by
jury, or conviction of any offence whatever.
Again, if Congress has power to deprive a law
yer ot his property in his office till he takes a test
oath, it has the same power to prohibit any citi
zen from following any other protession or avo
cation till he has done the same. If it had power
to enact this law, it has the same power to vary-,
alter, or amend it at pleasure. If it may consti
tutionally do what it has done ; as the freedom
of religion has no higher guaranty in the Consti
tution than the protection of property; it may
pass a law that no one shall preach the Gospel
till he has sworn that he believes baptism by im
mersion the only- mode; or it may- enact that no
one shall practice medicine till he has taken an
oath that he never did, and never will use opium
in his practice; or that no one shall plow till he
has filed his affidavit that he will never use a
turning plow, as the Creator placed the soil on
top of the ground where it should remain ; or
the party in'power in Congress, no matter which
it may be, may prescribe a test oath that no per
son shall ever vote again who does not make oath
that he never voted Tor the other party; and may
justify it upon the ground at least satisfactoiy to
itself, that its principles are the only true princi
ples of the government, and that the public good
imperatively requires that they be carried out in
practice, which might not be done without the
aid of the oath.
Let the judiciary sustain this assumption of
power by Congress, and it may close tbe courts
in the South indefinitely; shut the doors of the
churches; stop every spindle of the manufac
turer ; quench the fires of every furnace in blast;
lock the doors of the merchant, and drive the
plowman from his honest labor—all by the sim
ple appliance of a test oath.
And as nineteen-twentieths of the people of
Georgia could not probably take it, Congress by
a test oath declaring ihat no one shall hold pro
perty who cannot take it, may confiscate nine-
by Congress, the coui
reason why the British
dents, be of no avail to;
oaths in this country.
I wish, also, to invii
Honor to this View of thj
ready shown that the
States has, by statute, authorized parties in the
courts to manage their causes, by tlie assistance
of sucli 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 has the power—after a
party has employed an attorney under this act,
and confided to him the management of his
cause—to deprive him of his assistance, when
the attorney has been convicted of neither mal
practice, crime, nor misdemeanor.
I will now proceed to show that this enact
ment is obnoxious to another grave constitution
al objection. The Constitution of the United
States declares no bill of attainder, or ex post facto
law shall be passed.
By a bill of attainder, I understand, a judicial
sentence by Parliament, or a legislative usurpa
tion of judicial power. As when the Parliament
passed a bill to attaint AJB. of high treason, and
directed his execution, and the confiscation of his
estate. This act of Congress is in the nature of
a bill of attainder. It does not attaint a lawyer
of high treason, but it does assume judicial
functions, and confiscates his property without
judicial trial or judgment. And it usurps the
power which properly belongs to the courts
alone, of determining who shall and who shall
not fill the office, which is inseparably incident
to the court. This objection embraces the case
of the applicant for admission to the bar as fully
as that of the member of the bar. The court
prescribes a rule upon conformity to which, any
citizen has a right to be admitted to the bar. It
belongs to the court to fill this incident office,
and Congress lias no right to interfere while he
who complies with the rulfe of the court has an
unquestionable right to be admitted to practice.
The student expends his money and time in pre
paration, and when ready to comply with the
rule of the court, he applies for admission, and
is met by a quasi bill of attainder, in the nature
of a judicial sentence passed by Congress, that
he shall not be admittgd^Si complying with the
rale of court, but that,'it is the judgment of Con
gress, that he must also take a certain test oath
not required by the courts, before lie can be ad
mitted, and that on refusal to take it, he stands
convicted of aiding and abetting rebellion. It
Congress may include all applicants for admis
sion 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 hands of the few now at the bar,
who can take the oath, at their death destroy the
office altogether, notwithstanding the Constitu
tional guarantee, that every person accused of
a criminal offense shall have the assistance of
counsel for his defense.
This law is not only in the nature of a bill of
attainder, which is forbidden by the Constltuion,
but it is clearly an ex post facto law as well when
applied to attorneys of the court, or to applicants
for admission to practice. An expost facto law is
thus defined by Mr. Justice Chase, delivering the
opinion of the Supreme Court of tlie United
States in the case of Calder and wife vs. Bull
and wife, 3d Dallas, 386.
1. Every law that makes an action done before
the passing of the laws, and which was innocent
when done criminal, aud punishes such action.
2. Every law that aggravates a crime or makes it
greater than it was when committed.
3. Every law that changes the punishment and
inflicts a greater punishment than the law annex
ed to the crime when committed.
4. Every law that alters the legal rules of evi
dence and receives less, or different testimony than
the law required at the time of the commission
of the offense in order jo convict the offenders. See,
also, 1 Kent’s Com. 408, Sergeant on Const. Law,
356; Smith’s Com. on Const. Construction 372.
In Fletcher vs. Peck 6, Cranch Reps. 138, Chief
Justice Marshall, delivering the opinion of the
Supreme Court of the United States, says: An
ex post facto law is one which renders an act pun-
: ish&ble in a manner in which it was not punisha
ble when it was committed. Such a law may
inflict penalties on the person, or may inflict pe
cuniary penalties which swell the public treasu
ry'. The Legislature is prohibited from passing
a law by which a man’s estate or any part of it
may be seized for a crime which was not de
clared by some previous law to, render him liable
to that punishment. >
In the case of Ross (2 Pick! 169) it was held
that if a statute add a new punishment, or in
crease the old one, for an offense committed be
fore its passage, such an act would be ex post facto.
The party ought to know, says the court, at the
time of committing the offense the whole extent
of the punishment
Now I beg the court to bear in mind that tlie
act applying the test oath to attorneys at law
was passed on the 24th of Janurary, 1865—very
near the end of the struggle. It fixes no period
of time, as that he has not aided the rebellion
since the date of the act, but it is general. The
language is, That I have never voluntarily borne
arms, &c., embracing the whole period of his
life. Now suppose the lawyer, or the applicant
for admission, did bear arms' against t(£ Govern
ment, or did aid or countenance those who did
in 1861, is not this an ex post facto law as to him ?
Was the forfeiture of his property in his office,
or of his right of being admitted to the office on
complying with the rules prescribed by' the court,
any part of the penalty enacted by Congress
against the offense, at or before the time of its
commission ? It certainly was not. It formed
no part of the penalty till the 24th of January,
1865. This, then, is a law that repeals no part
of the penalty prescribed by law against the of
fense in 1861; it only adds to tlie penalty already
in existence the forfeiture of his right to practice
law in the courts of the United States, or, in the
language of Mr. Justice Chase, it inflicts a greater
punishment than the law annexed to the crime
when committed. In addition to the old penalty,
it seizes and forfeits his estate in his office, which
could not be done, because no previous laws, in
the language of Chief Justice Marshall, “ ren
dered Mm liable to that punishment.” And in
the language of the Supreme Court of Massachu
setts, in Ross’ case, above cited, if it does not in
crease the old, it “adds a new punishment” for an
offense committed before its passage. How
could the attorney, at the time of committing the
offense in 1861, know, in the language of the
last named court, the whole extent of the punish
ment which was not prescribed till Januaiy, 1865 V
It is also ex post facto when tested by the fourth
rule laid down by Mr. Justice Chase. It changes
the legal rule of evidence and receives less and dif
ferent testimony than the law required at the
time of the commission of the offense, to convict
the offender; in this, that it makes his bare refu
sal to answer on oath, whether he has or has not
committed the offence, conclusive evidence of his
guilt, and is in effect a judgment of forfeiture.
It may be contended here, as it has been else
where, that this test oath is not a penalty, nor the
act imposing it a penal statute, bat that it is an
additional qualification for office prescribed by
Congress. It "Is not necessary that I discuss here
the power of Congress to prescribe other qualifi
cations than those prescribed in the Constitution
for its own members, or any other officer of the
United States. I presume there are few advo
cates of the position that Congress has power to
prescribe the qualifications of any but officers of
the United States, What power has £ongress to
prescribe the qualifications of the Governor of a
State, a member of tlie State Legislature, or a
Judge of a State Court ? It certainty has none,
though they are all citizens of the United States,
and all officers. An attorney at law is an officer
of Court, but not au officer of tbe United States.
He is admitted by the Court, under rules pre
scribed by it, to practice in the Court, and is an
swerable alone to tbe Court.
This is the construction given to it by Congress
itself. The act of July, 1862, prescribed the test
oath for all officers of the United States. That
of January, I860, declares that attorneys at law
shall take the same oath before they are permitted
to practice in the United States Courts. If Con
gress had considered them officers of the United
States, they were folly embraced in the act of
July, 1862, and it was an idle waste of time to
pass the act of January, 1865. It is very clear
then that the test oath is not prescribed as an ad
ditional qualification for an officer. The oath
was intended as a penalty, and the statute as a
penal one, against those who aided in the war
against the L nited States. It was not intended
to qualify the lawyers of this bar for the practice,
It was intended to forfeit their right to practice.
In support of the position that a statute prescri
bing a test oath, which deprives a citizen of his
right to hold office a penal one, I refer your
Honor to the case of Leigh, 1 Munford’s Va.
Reps., and the case cf Dorsv, 7 Porter’s Ala.
Reps. Each of these States had passed strin
gent acts against duelling, and had prescribed
an oath to be taken in Virginia by all officers ot
the State Government; and in Alabama by all
State officers and practicing attorneys, that each
had not before engaged in a duel, and would nev
er engage in one, while lie remained in the
office. In each case the applicant moved to be
admitted to the Bar of the Supreme Court with
out taking the oath; and in each case the Court
sustained the motion. The decisions are lengthy,
but, as they' are very able, I shall not apologize
for reading portions of each to your Honor. And
upon the point to which I last referred, I invite
the attention of the Court especially to the fol
lowing language of the Judges: In Leigh’s case,
page 482, Judge Roane, who was greatly dis
tinguished for his ability', says: However lauda
ble the object of the act to suppress duelling may
be, it is still a highty penal law, and must be
construed strictly'. It is unusually penal if not
tyranical, in compelling a person to stipulate
upon oath, by the 3d section, not only in relation
to his past conduct and present resolution, but
also for the future state of his mind. Thus pre
mising that this act is highly and unusually pe
nal, I will, under the influence of the rules for
construing penal statutes, proceed to apply it to
the case before us.
Judge Fleming, in the same case, say's: 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 the State, or of the United
States, though there be no pecuniary penalty in
flicted on those who refuse to take the oath
therein prescribed, I cannot but consider it a
penal statute,and as such must give it a strict inter
pretation. Again, he says: Admitting that attorn
eys are comprehended in the act, it has, or ought
to have, a prospective, and not a retrospective opera
tion,and cannot effect officers of any description,
appointed to office prior to the passage of the act.
In Dorsey’s case, 7 Porter, 366, Judge Gold-
thwaite says: I have omitted any argument to
show that disqualification from office, or from the
pursuit of a lawful avocation is a punishment—
that it is so, is too evident to require any illustra
tion ; indeed it may be questioned whether any
ingenuity could devise any penalty which would
operate more forcibly on society. Again, he
says : A citizen is informed that by the laws of
the State, lie is entitled to aspire to any office, or
pursue any other avocation which any other citi
zen can; yet when he is about to enter in the of
fice, or avocation, he is required to swear to his
innocence of a particular crime; it then becomes
evident, that if lie cannot truly take the oath re
quired, he is excluded. Can it be doubted, that
for all the purposes of the disqualification, the
guilt of the individual is ascertained ? In what
does it differ from a general enactment that a
candidate tor office shall be required to prove
and estabish his innocence of a specified crime?
Admitting a person to be guilty be is neither ac
cused, tried, or convicted, by any tribunal known
to the laws; yet he is punished with unerring
certainty, and the utmost celerity; his Conscience
is made his sole accuser and judge ; his punish
ment commences with tlie commission of the
crime, and terminates only when he ceases
to exist; he is excluded from the sympathy of his
peers—no legal doubt can intervene to produce
his acquittal—an error of his judgment involves
his soul in the awful guilt of peijury, or punishes
him without guilt. I have no hesitation, in declar
ing that this act provides a mode of ascertaining
and punishing guilt which is not only unwar
ranted by the Constitution, but is also in direct
contravention of several of the most important
provisions of the declaration of rights, by which
the liberties and privileges of tlie citizens are
guarded. "■*******
When once it is admitted or proved that a citi
zen ha3 a right to aspire to office or to pursue
any lawful avocation, it seems to me impossible
that he can be legally deprived of that right by
a pnnisliment for anoffence committed without
a trial by'a jury; and I can perceive no sound
distinction between a law which deprives one of
his right without a trial, and that which ascertains
and punishes his guilt by an illegal mode of trial.
He then refers to the Governor’s right to grant
pardons, and says: We cannot presume that the
General Assembly intended by this act to in
terfere with the Constitutional prerogative of
mercy vested in the Executive, yet this act, if
constitutional, imposes a penalty which cannot
be remitted, and inflicts a punishment beyond the
reach of Executive clemency.
In tbe same case, Judge Osmond says, pp.
379:
Tliis is a highly penal law; it excludes, unless
its terms are complied with, all persons from
practicing as attorneys and counselers at law in
the Courts of this State. It must, therefore, re
ceive a strict construction, in accordance with
well established principles, and the authority to
pass it be clearly and fairly discoverable from the
Constitution. And on pp. 380: It is so offensive
to tbe first principles of justice to require a man
to give evidence against himself in’a penal case,
that independent of the Constitution interdict,
no one in this enlighteped age will be found to
advocate the principle. But it may be said this
is not a case of this kind, as no corporeal or pecu
niary punishment is the consequence of a refusal
to take the oath against duelling. But are not
the results the same, whether punishment follows
from the admission, or is imposed as a conse
quence of silence. Can ingenuity make a dis
tinction between a punishment inflicted in this
mode, as a consequence of a refusal to take the
oath, by closing one of the avenues to wealth and
fome, and a positive pecuniary mulct ? If there
is a difference, I think it entirely in favor of the
latter, so far as the amount or weight of the pen
alty could effect the decision of the case. On
page 381: With great deference to the opinion of
others who may differ from me, I think that the
requisition by the legislature, in substance and
eflect, requires the applicant for a license to five,
evidence against himself; and that if not within
the letter, is at least within the words of the pro
hibition—the very' foundation of which is that
every one is presumed to be innocent till the con
trary appears.
He then refers to the Constitutional provision
that the crime or offence must be ascertained by
due course of law, and says: The term “due course
of law” has a settled and ascertained meaning,
and was intended to protect people against pri
vations of their lives, liberty or property, in any
other mode than through the intervention of the
judicial tribunals of the country. But tlie law
seeks to aseertain a fact exalted into a crime and
punished in a particular manner—not by tlie
judgment of a competent court, but by the ad
mission of the offender, and construing liis si
lence as evidence of guilt.
Judge Pitman, in the same case, refers to the
fact that the statute under consideration render
ed any one engaged in selling spirituous liquors
an incompetent juror, and authorized the ques
tion to be propounded to him, and says:
This law authorizes the court to inquire of the
juror who may' be challenged on this account; it
is true, the law says “he may decline to answer,”
but what then ? Is the fact to be proved by oth-
r evidence? No; this silence is considered as
fficient proof, and he is excluded accordingly.
He is, therefore, compelled to answer, if he does
not wish to be excluded as unworthy to sit as a
juror, or does not wish to be considered as con
cerned in a traffic which may be considered as
infamous. The maxim of the common law re
cognized by the Constitution is, that every man
is presumed to be innocent until he is proved to
be guilty. The whole spirit of this law appears
to me to be at variance with the rights of prop
erty as well as person. The Legislature has no
right by r an act to confiscate the' property of the
citizen; it may he forfeited for a violation of law,
but this must be done without affecting the
rights of the owner thereof to a jury trial
'in a case of Greene vs. Biggs, 1 Curtis, Circuit
Court, reps. 325, Judge Custis, ot the Supreme
Court of the United States presiding in the
Circuit Court, defines what is meant by the laic
of the land. He says: Certainly this does not
mean any act wMch the Assembly may choose
to pass. * If it did the legislative will could inflict
a forfeiture of life, liberty, or property', without a
trial. The exposition of the wonds as they stand
in magna charta, as well as in the American
Constitution, has been that they require “due
process of law,” and in this is necessarily implied
and included the right to answer to and con
test the charge; and the consequent right to be
discharged from it, unless it is proved. Lord Coke,
in giving an interpretation of these words in magna
charta, 2 Just 50, 51, says they mean “ due pre-
cess of law,” in which is included presentment
or indictment, and being brought in to answer
thereto. And the jurists of our country have
not relaxed this interpretation. It follows, says
he, speaking of tlie case before him, that a law
which would preclude the accused from answe-
ing to and contesting the charge, * * * *
and which should condemn him to fine and for
feiture unheard, if he failed to comply with the
requisition (to give security) would deprive Mm
of his liberty or property—not by tbe law of
the land, but by an arbitrary and unconstitu
tional exertion oi" legislative power.
Gov. Brown also produced the dicisons of Judge
Trigg, U. S. District Judge for Tennessee, and
Judge Busteed, holding the same opinion in Al
abama, and read parts of both decisions. The
Court in each case held the law ex post facto and
void. These decisions, he said, were precisely
in point, deciding the satns question now 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 as 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 ques
tion ;
1. That the attorney is an officer of Court; that
he has a property in that office; and that it is tor
life, or good behavior.
2. That this act of Congress violates the social
compact, magna charta, and the Constitution
of the United States, by depriving Mm of that
property without due process of law, in this,
that he is in effeet convicted, and his property for
feited without presentment or indictment of a
grand juiy; that he is denied a trial by jury;
that he is denied the right to be confronted with
the witnesses agninst him; that he is denied
compulsory process for obtaining witnesses in
Ms favor; that he is denied the assistance of
counsel for liis defence; and that he is compell
ed to be a witness against himself in a criminal
case, or that his silence is construed a9 conclusive
evidence of guilt.
3. That the act is in the nature of a bill of
attender, and is an usurpation by the legislative
department of the Government of the functions
assigned by the Constitution to the Judicial De
partment, being a sentence ot forfeiture, pro
nounced by Congress, wbicb, being a judicial,
and not a legislative act, can only be done by
the Judiciary, after trial and conviction.
4 That the law is not, and was not intended
to be a law prescribing qualifications for office,
but a penal law forfeiting bis property for the
commission of an act, which, at the time of its
commission, had no such penalty annexed by
law, aqd that the act or offence is punished by
this law in a manner different from that prescrib
ed by law, at the time 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 property which an attorney has in 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 aud who is not guilty, compelling each
to suffer the penalty of guilt if he refuses to an
swer—in other words, drawing contrary to all
rale in such case, a conclusive inference of guilt
from refusal to answer; and pronouncing and
executing judgment accordingly. How does
the case then stand ? The office of the attor
ney would be forfeited, so soon as the court met
and tendered the oath and he refused to take it.
But certainly not till then. Why not ? Because
Congress makes the refusal to take the oath con
clusive evidence of guilt; or rather it forfeits his
estate because he is guilty ; and makes the refu
sal to take the oath stand in the place of trial by
jury, and a judgment of guilty rendered by the
court. Just as if the Legislature of Georgia
should pass an act, (no matter how absurd) that
when a man is found dead in any county, every
man, woman, and child in tlie county who re
fuses to swear that he or she was not a party to
his death, shall be taken by the sheriff and
hanged, and all his or her property shall be con
fiscated.
But n«rtv suppose before the oath is tendered
to any, or any one is executed, the pardoning
power should grant a full and free pardon to
every person in the county, 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 ad
mit that he conld not. The pardon having been
granted before judgment or execution, it leaves
the accused in precisely the same condition in
which they stood before the charge was made
against them ; not only' with the right to life and
liberty, but to the peaceable enjoyment of all
their property.
Now the truth is, that most of the attorneys of
this coftrt have received, either under the Gener
al Amnesty Proclamation of the President, or
upon special application, full pardon from the
President of the United States, before any court
has been held in the State, or tlie test oath has
been tendered to, or refused to be taken by any
one. Admit, then, that the refusal to take the
test oath stands in place of a conviction of guilt,
and it can have no application to any one par
doned before trial and conviction. It certainly
follows, then, that the property of an attorney
in liis office, which was not forfeited prior to his
pardon, cannot now be forfeited for the offence
for which he was pardoned. In support of this
position, I quote the following authorities:
It seems agreed that a pardon of treason or
felony even after an attainder, so far clears the
party from the infamy and all other consequences
thereof, that lie may have an action against any
one who afterwards calls him traitor or felon; for
the pardon makes him as it were a new man.—
7 Bacon’s Abr., 416.
The court will 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 the one
now at Bar, unless the act of Congress imposing
the test oath is held by the court to he a bill of
attainder, and if so, it is unconstitutional and
void. But if the act is not a bill of attainder,
the pardon granted before conviction or attain
der, must necessarily leave the party in the pre
cise legal status which he occupied prior to tlie
commission of the off ence.
It was formerly doubted whether the pardon
could do more than take away the punishment,
leaving the crime and its disabling consequences
removed. But it is now settled that a pardon,
whether by the king or by act of parliament, re
moves not only the punishment, but all the legal
disabilities consequent on tlie crime. 7 Bacon
abr., 415; 2 Russell on crimes, 975 ; Hob, 681; 2
Hal’s P. C., 272; 2 Salk, 960; 1 Lord Raym,
39; 4 State Trials, 681; Cas. Tenp Holt, 683 ; 5
State Trials, 171; Fitzg., 167.
Tlie effect of such pardon by the King is to
make the offender a new man; to acquit him of
all corporeal penalties and forfeitures annexed to
that offence, for which he obtains bis pardon. 4
Blackstone’s Com., 402.
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 acquit the offender of all penal
ties and forfeitures annexed to the offence. It
follows conclusively that the attorney or appli
cant for admission to the bar, who has received
a pardon, before indictment or conviction, stands
before this Court in precisely the condition in
which he would have stood; and with all the
rights which he would have had, if he had never
committed the offence. To hold tliat Congress
can change this, is to hold that Congress has
power to destroy the pardoning power vested
by the Constitution in the President of the Uni
ted States alone.
I trust I might safety rest this case here, but
before I lake my seat, I desire to make a few re
marks on the law of nations, as to the relative
rights and duties of those who were lately at
war with each other. In doing so, I shall care
fully avoid any expression intended to reflect
upon any' one in position, or any reference to pre
sent party divisions. Suffice it to say, that after
four long and dreary years of bloody conflict,
Gen. Lee surrendered liis Army, and tendered
Ms sword to Gen. Grant.
The latter with a magnanimity, that if he had
done no other great deed, must have immortal
ized his name in history'; appreciating the abili
ty, the merit, and the motives of his great an
tagonist, returned it to him, a3 reported, with the
kindest expressions, saying: you are not con
quered, but overpowered by superior numbers
and resources. And 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
terms of the capitulation ; the liberalty which
has characterized his whole conduct since that
time;' and the many acts of kindness wlrich
he has performed for Southern men in adversity
and distress. And these shows the nobleness of
his nature. Soon after this surrender, President
Lincoln fell a victim under the hand of a black
hearted, bloody assassin, and tlie present excel
lent CMef Magistrate was called to the position
at a most critical and trying period in our histo
ry. As a Southern man who had stood by the
Government during tlie struggle, he had been
bitterly denounced by' the whole Southern peo
ple. Without knowledge of the loftiness of liis
soul, the expansiveness and intensity of his pa
triotism, and 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 vindictiveness or re
venge in Ills nature, or had his mind been cast in
a smaller mould,the country would still have been
drenched in blood after the thunders of battle
had been hushed—the South would have been
utterly ruined, tbe prosperity of tlie whole coun
try destroyed, and re-union with fraternal feel
ings would have been an impossibility for gener
ations to come. But rising above all personal
and selfish considerations, and looking alone to
the good of the whole country', he issued his
Proclamation extending universal amnesty, with
limited exceptions, to the whole people of the
South, by wMch he pledged the faith of the Gov
ernment,'(for he, as Commander-In-Chief, was its
representative,) that on tlie acceptance of tin*
terms proposed by him, and on taking the oath
ot allegiance, the people of the Sonth should be
restored to all their rights in the Union under
the Constitution. The people en masse, Attor
neys at Law included, Judge Law among the
rest, accepted the terms, and many who were
not embraced in the general amnesty, on special
application received pardon. Here then are
found the terms of the capitulation to which the
several States in their aggregate capacity, as well
as tlie people individually, have faithfully con
formed. 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 on their part full and
complete.
Now, in consideration of ali this, I trust the
Courts will hold that the law-making power is
bound also, and that the past should be forgiven
and forgotten. Upon this subject I call your at
tention to tbe language of Vattel in Ms Law of
Nations in his chapter upon Civil War. He
says:
And if there existed no reason to justify the
insurrection (a circumstance wMch perhaps
never happens) even in such case it becomes
necessaiy, as we have above observed, to grant
an amnesty, when the offenders are numerous.
When the amnesty is once published and accept
ed, all the past must be buried in oblivion ; nor must
any one be called to account for what has been
done during the disturbance. And in general,
the sovereign whose word ought ever to be Ba-
cred, is bound to the faithful observance of every
E romise he has made, even to rebels. Vortel’s
iaws ot Nations, pp. 423 and 424.
The terms of capitulation have not only been
agreed upon in tliis case, but the Civil War is
at an end. The vanquished have, in good faith,
complied with those terms on their part. Thu
Northern construction of the Constitution is es
tablished, and slavery is forever abolished. The
amnesty lias been published and accepted. Then,
in the language of this distinguished author, the
“past shornd be buried in oblivion,” and neither
Judge Law nor any one else should be called to
account here or elsewhere, byt test oath, or other
wise, for what was done by him, in accordance
with the usages of civilized warfare, “during tlie
disturbance.
^5.This view of t Ms question has also the sanc
tion and authority of Divine inspiration. In the
Bible, the distinction between the blood of war
and the blood shed in peace, is clearly drawn—
the binding obligation to carry out, in good faith,
an amnesty once tendered and accepted, is en
forced—and the infliction of punishment upon
the party who has received the pardon or am
nesty for acts done during the war, is con
demned.
After the death of Saul, King of Israel, war
existed between bis son as hia heir, and David,
the anointed of God, about the succession to the
throne. Abner commanded the forces of the son
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 having
been warned to desist from the pursuit wMch he
refused to do, was slain by Abner. After this
Abner sought an interview with King David,
received amnesty, and was sent away in peace.
On learniug this, Joab was greatly displeased,
and without the knowledge of the King, sent and
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 ot an act done during the war.
At a later period in King David’s life, his son
Absalom rebelled against him, and drove him
from his throne, and without just cause plunged
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 com
menced, King David gave strict orders to Joab,
that neither he nor any of his men should harm
the person of Absalom. During the battle Absa
lom became entangled by Ms hair in the boughs of
a tree, where Joab found him and slew him, in vio
lation of the King’s orders, though peace had not
been made, nor had Absalom been pardoned, nor
did tbe act violate any of the then usages of war.
King David wept bitterly over tlie death of his
rebellious son. Afterwards, Amasa, wlio com
manded the armies of Absalom during the war,
was pardoned by the King, and placed in com
mand of Ms forces, in an expedition against She
ba, who had raised an insurrection. Joab met
Amasa on the march, and smote and slew him.
King David was a man inspired of God, and
is said to have been a man after God’s own
heart. He was a warrior most of liis life; and
understood both the rules of war, and the Divine
will upon the subject. Finally, he lay upon liis
death-bed, on the brink of the grave and the
verge of eternity. In this solemn hour, with full
knowledge of his condition, filled with the spirit
of inspiration, he gave his memorable charge to
Solomon, his son, who was to succeed him upon
his throne. In that charge, among other things,
he commanded him to slay Joab, or, in other
words, not to let his hoary head go down to the
grave in peace. Not because he slew Absalom,
the King’s son, in violation of the King’s order.
The blood of Absalom was shed in battle; it
was therefore 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, aud they
had made peace with the King. For their
slaughter David ordered Solomon, his son, to
take the life of Joab. Why? in David’s own
language, because he shed “die blood of war in
peace.” This showed the obligation which, in
the estimation of this inspired mau, rested upon
the victor, after he had made peace and extended
amnesty, to protect the rights ot the vanquished,
and to maintain the utmost good faith in carrying
out the terms of the capitulation. The fact that
Abner had slain Joab’s brother in battle was
held to be no justification for the slaughter of
Abner by Joab after tbe war was at an end.
The slaughter of Asahel was the shedding of
the blood of war. The slaughter of Abner was
the shedding of the blood of war in peace.
The first was justifiable homicide, the second
was murder.
In conclusion, I have only to add, that I have
satisfied my own mind, and I trust the mind of
the Court, that the statute requiring the test oath
is in volation of the Constitution of the United
States, and is for that reason void. And that the
Divine law and the laws of nations agree, that
when war is at an end, and peace is proclaimed,
or amnesty and pardon granted to the vanquish
ed, as to the applicant in this case,” all the past
must be buried in oblivion, and no one should be
called to account for what was done “during its
continuance.” And that he who forfeits tlie
the property of those who have made peace,
for acts done daring hostilities, violates the law
of nations; while he who sheds the bood of
those who have conformed to the terms of the
capitulation after hostilites have ended, “sheds
the blood of war in peace,” and violates not only
tbe law of nations, but the law revealed by the
living God.
False Calves—Instability of a Saw-Dust
Contoub.—False calves have made their advent
in Cleavland, Ohio. The Plaindealer says :
We have a very startling arrival to chronicle :
“False calves have come to town!” They arrived
stuffed with hair, the other with sawdust, the lat
ter, of course, being the cheapest. Yesterday
afternoon, a young lady with tilting hoops and
false calves was perambulating through the park,
when suddenly one of the calves burst. Our read
ers can imagine the result. The poor young lady'
could be traced by a trail of sawdust from Rouse's
block to the postofflee. [Excuse a tear.] Thus
the maiden, who entered the park in form resem
bling the Venus de Medicis, and emerged there
from in a state of spindle-shanked angularity!
Her great mistake consisted in not getting hair
calves—they being less liable to burst, and of a
more pliable nature. Believe us, dear ladies, if
you will wear tbe new-fangled improvements on
nature’s pattern, that the hair style is the cheap
est. We presume the young lady fainted when
she learned the extent of her misfortune. But, as
an exchange says, what’s the use of railing at
false calves—they are a mere matter of form r
A Washington letter writer tells a droll story'
of the President, by r which it would appear that
he was shaved the other day, when the barber
accidently tweaked the nose a little too hard.—
“Pardon me,” said the barber, very naturally.—
“Put your hand in my coat pocket and pull out
one,” rojoined the Chief Magistrate, “and I’ll fill
t out for yon when you’ve done.”
Some slandering bachelor says it is much joy
when you first get married, but it is much more
jnwy after a year or so.
LAWS AND J0TJBNALS.
The contracts for distributing the Laws and Journals
ot the last and preceding Legislature will be let to the
lowest bidder by Congressional {not Judicial) Districts,
at the State Honse on Tuesday, the twenty-ninth day of
May next, at twelve o'clock M. Any sealed bids which
may be forwarded to me by mail before that time, for dis
tributing the hooks in any Congressional District, will be
considered as bids at the letting out of the contracts.—
Bond and security will be required for the faithful per
formance ot the contract within sixty days from the re
ception of the hooks, and the money will he paid as soon
as the work is done. Those who desire it can receive
the books at the time of the letting, and all contractors
will be required to enter upon the work within ten days
after the date of the contract. Any one sending a bid by
mail mnst accompany it with a certificate of the clerk of .
the Snperior Court or Sheriff of the county in which he
resides, stating that he is a responsible person, reliable
and able to give bond, or snch bid will not be consid
ered. JAS. Q. MONTGOMERY, State Librarian,
ap'26—tillmav29