Newspaper Page Text
4
i
I
HftM* IntfUigfBftr.
ATLANTA, GEORGIA,
Wednesday, June 6, 1866.
Return* on Income*.
We arc advised that lists of the Returns made
on Incomes to the Assessor’s office of this, the
4lh district, will be furnished for publication.
Similar lists, we notice, have been elsewhere
published. An effort has recently been made in
Congress to prevent this, but it proved an unsuc
cessful ouc.
lulled Slate* District Court In Chamber*
nt Savannah.
The Savannah News <fc Herald of the 31st ulti
mo reports the following case as having been
urgued the day previous before Judge Erskine,
presiding Judge United States District Court for
this State:
The State of Georgia, complainant in equity,
and James Atkins, Assessor of Internal Revenue
lor the Fourth District. An application was made
by the State for an injunction restraining the As
sessor from assessing a tax on the earnings of the
Western & Atlantic State Road. The Judge has
the case under consideration.
*‘Tl»e Ladle* 1 Home.**
The enterprising publisher, and the gifted
editress of this new Southern journal, have set
forth in its first issue so clear and so interesting
an exposition of its “being’s ends and aims”—
the establishment in this city not only of a "La-f
diet' name," an institution the conception o
which reflects credit upon the publisher of the
journal and all engaged in furthering his enter
prise ; 1ftit devoted also to the varied interests of
womanhood—that we will not, in the notice we
"now take of this new enterprise in Southern
journalism, say much more than to welcome it
into afield where it has every opportunity to pro
mote the cause of Southern literature, and in
which we hope it will prove successful.
The “Ladies' Home" has been handsomely
gotten out. Its typographical execution will
compare favorably with any literary weekly pub
lished either at the North or South. Its contents
evidence the engagement of a high order of tal
ent upon its columns. The salutatory of Mrs.
French, its accomplished editress, is a chaste
and charming production. The spirit it breathes,
we trust, will diffuse itself in the South until it
assumes that position in the literary world,which
will relieve it from‘that dependency to which it
has submitted for so long a period. We commend
the "salutatory of this charming lady to the pe
rusal of all into whose hands the "Ladies' Home"
may fall.
Wc are pleased to see that Miss Mary J. Up
shur—the popular “ Fanny Fielding ”—is one
of the contributors to the “ Ladies' Home." The
first chapters of her “ Little History.” are more
than sufficiently attractive and interesting-to make
the reader eager for the pleasure of perusing the
forthcoming ones.
Dr. Means’ “Essay on Cultivated Women”
is an able and interesting production. The trib
ute which this accomplished Christian gentle
man pays to woman, is like the most of his pro
ductions, profound, philosophical, and eloquent.
We arc pleased to see that he, too, is a contribu
tor to the columns of this new Southern enter
prise.
The selections and editorials of The Ladies'
Home are deserving of compliment. This jour
nal is now fairly launched,and, as we trust, upon
the voyage to prosperity. It has a field open to
itself, for “ its ends and its aims ” are novel;
special in most "respects; and surely commend
ing themselves to the benevolent throughout the
South. Being an Atlanta enterprise, as well as
for other more important considerations, we
trust that it will prosper, and not only accomplish
the main object of its publisher, but, that accom
plished, long continue the advocate of a healthy
Southern Literature.
The Lawyer’* Te*t Oath.
We lay before our readers to-day the argument
of the Hon. Henry S. Fitch, United States Dis
trict Attorney for the State of Georgia, made
before Judge Erskine, at the late session of the
United States District Court in Savannah, on the
constitutionality of the Test Oath prescribed for
attorneys practicing in that court. We have al
ready, when publishing the argument of Ex-
Governor Brown, expressed our opinions upon
the constitutionality, and at other times upon the
expediency, or policy, of this test oath, and deem
it unnecessary at this time to reiterate them. In
these opinions we have not been §liakcn, not
withstanding the very able defense of the consti
tutionality of that measure, which appears in the
argument ot the District Attorney. The legal
profession of this State, lor whose special benefit
we copy from the Savannah papers this argu
ment of the District Attorney, will see that it is
the effort of one whose attainments in legal sci
ence, skill in its practice, and dignified profes
sional courtesy, cannot but command their re
spect. Mr. Fitch is a native of Indiana; a gen
tleman of high literary, and as he demonstrates
in the argument which we publish, of profound
legal attainments. Though personally unknown,
his reputation as a lawyer, and his eloquence as
an orator, have long since been known, to
us. We only regret that his professional position
called for so earnest a defense of what we conceive
to be an unconstitutional and unjust require
ment.
Con tor the Destitute and Poor.
We had the pleasure of an interview, on yes
terday, with Colonel Peterson Thweatt, the
late very efficient Comptroller General of Geor
gia, who, we are gratified to state, has been ap
pointed, by Governor Jenkins, agent to distrib
ute the corn recently purchased at St. Louis for
the poor and destitute of each county in the
State. We learn from Colonel Thweatt that
he is now en route for Chattanooga, from which
point it is deemed advisable to begin the distribu
tion—that the Cherokee counties of the State
will be the first supplied, and all the others with
as much expedition as possible. It is suggested,
as the com has been purchased, and is now in
course of transportation, and as it is the best white
bread corn that could be found in the western
markets; and as it will surely be delivered to the
agents of the several counties, appointed to re
ceive it at the points designated, or agreed upon,
where there is suffering among the poor, that
parties who have com in these localities, loan to
these suffering poor about them a sufficiency of
corn, or meal, to supply their present wants. We
trust that the suggestion will not pass unheeded.
We have also been advised by Col. Thweatt
that there still remains thirty-three counties in
the State who have made no application for any
share of this boon by the State to their poor and
destitute. Whether this be the result of negli
gence—which would be unpardonable—on the
part of the civil authorities of these counties, or
that no suffering for bread exists in these coun
ties—which would be gratifying—we cannot de
termine ; but in order that they may understand
what means have been employed to supply the
destitute in our State with bread, and the man
ner in which the distribution of com will be
made, we append the following copy of a circu
lar addressed by the distributing agent to the In
ferior Courts of the several counties of the State
Milledgeville, May 24th, 1866.
To the Justices of the Inferior Court County :
Gentlemen : His Excellency, Gov. Jenkins
having at last succeeded in obtaining the money
to purchase com for the indigent widows and
orphans of soldiers, infirm and destitute white
persons, &c., entitled to receive the same, under
the Act of the last Legislature, and as it is now
hoped and believed that a portion of this com
can be distributed from Atlanta within the next
three weeks, I would respectfully ask that you
immediately inform me at what depot on any
one of the railroads, in this State, you desire
the corn for your county forwarded to.
The appropriation is insufficient to purchase
an adequate supply, and to transport it to such
counties as lie off the railroads. I am, there
fore, directed by His Excellency to say that the
com for each county, will be delivered at such
depot, on some one of the railroads, as the
Justices of the Inferior Court of said county
may designate, or in the absence of such desig
nation, to prevent delay, when ready for distri
bution, it will be forwarded to such depot as
may be deemed most convenient to the author
ized agent of such Justices.
The General Purchasing Agent has been in
structed to purchase the best corn that can be
found in the Western markets.
We may not be able to send you all the com
coming to your county, at one time. At first,
we will have to divide out, according to the
amount received, and the necessities of the dif
ferent counties—will try to send one month’s
supply, at the commencement. We expect,
however, to send your county, in all bushels.
When forwarded from Atlanta, you will be noti
fied by mail. But, as mail communication with you
may not be very good, it would be well for you
to get the agent at the;depot, to which you may
order the com sent, to inform you when it comes.
Having been appointed by the Governor to
distribute this com, as it reaches Atlanta, I can
be addressed at this place until the 28tli inst.,
after that time at Atlanta. Very respectfully,
your obedient servant,
Peterson Thweatt,
Distributing Agent
Since the issuance of this circular, as will be
seen in the foregoing, it has been determined to
distribute the com from Chattanooga, and not
from Atlanta, as the distribution from the first
named point will be attended with less expense
and with greater expedition.
From Colonel Thweatt we learn also that
the number of poor and destitute, among whom
this corn is to be distribute#!, is estimated at forty
thousand. With his known energy, it will not
now be long ere these unfortunate sufferers will
be supplied with bread.
Hon. J. H. ChrUty.
We were pleased to welcome into our sanctum
3 T e9terday, our brother quill of the Athens Watch
man, and Congressman elect from the Athens
district The genial face and stalwart fomi ot
Colonel Christy ftimish ample evidence that
time has dealt gently with liim. He visits the
city to arrange for the speedy distribution, among
the destitute of his district, the munificent dona
tion of the Baltimore ladies, this point being
more accessible to many of the counties than
Athens. As will be seen from the card below,
the quota for certain counties bas been deposited
at the commission house of M. R. Bell & Co.,
where the proper parties may send forward and
secure it.
donation to the destitute women and
CHILDREN.
To the Justices of the Inferior Courts of Milton, Gwin
nett, Forsyth, Pickens, Towns. Fannin, Gilmer, Union
and Dawson Counties:
Gentlemen—The undersigned, having been
appointed by his Excellency the Governor to ap
portion to the different counties of the Sixth Con
gressional District the provisions donated by the
Baltimore “Ladies’ Relief Association,” for dis
tribution among the “destitute women and chil
dren,” respectfully request you, as guardians ot
the poor, to take the matter in charge in your re
spective counties, by seuding for the provisions
aad appointing suitable agents to distribute the
p&me.
T For the convenience of the above named coun
ties, their quota has been deposited in Atlanta
at the store of Messrs. M. II. Bell & Co., who
have kindly consented to deliver the same to the |
order of the Justices of the Inferior Courts.
J. H. Christy, )
J. S. Gholston, s Commissioners.
T. Morris, )
The Fenian* Invade Canada.
The telegraphic news of this morning embrace
accounts of the invasion of Canada by 1 enian
forces. To what this invasion, or movement, of
the Fenians may lead, we do not pretend to
know. The tact that they have planted the
“Green Flag” upon the soil of Canada, and
that they have thus dared the “ British Lion,”
Is, of itself, a momentous one. Whether the
Irish forces thus throwing down the gage of
battle to old, and by them hated, England, are
sufficient to maintain their ground, is doubtful in
our mind. We know so little, however, of their
strength, and so little of their plans, that we can
venture to say but little in regard to them. The
one event, that of their having invaded Canada,
is sufficient, of itself, to create intense excite
ment, not only in this country, but in Ireland
and England. What may it not lead to ?
The Radical Plan of Reconstruction.
In the House of Representatives of the Con
gress of the United States, on Monday last,
7 hade us Stevens, the Radical leader ot that body,
introduced the following reconstruction bill,
which was twice read and referred to the “Com
mittee of the Whole.” Our readers would do
well to note the provisions of this remarkable
bill. It is as follows:
Whereas, The eleven States which lately formed
the government of the so-called Confederate
States of America, have forfeited all their rights
under the Constitution, and can be reinstated in
the same only through the action of Congress;
therefore,
lie it enacted by the Senate and House of Repre
sentatives of the United States of America in Con
gress assembled, That the eleven States lately in
rebellion may form valid State governments in
the following manner :
Sec. 2. The State governments now existing
de facto, though illegally formed in the midst of
martial law, and though, in many instances, the
constitutions were adoptedjunder duress and sub
mitted to the ratification of the people, and,
therefore, are not to be treated as free republics,
yet they are hereby acknowledged as valid gov
ernments for municipal purposes, until the same
shall be duly altered, and their legislative and
executive officers shall be treated as such.
Sec. 3. Whenever the Legislatures of said
States shall enact that conventions shall be called
to form legitimate State governments by the for
mation and adoption of State constitutions, the
Governor or chief executive officer shall direct
an election to be held on a day certain, to choose
delegates to a convention, which shall meet at
the time fixed by the Legislature, and form a
State constitution, which shall be submitted to a
vote of the people, and, if ratified by a majority
of the loyal voters, shall be declared the consti
tution of the State.
Sec. 4. The persons who shall be entitled to
vote at both of said elections shall be as follows:
All male citizens above the age ot twenty-one
years, who have resided one year in said State,
or ten days within the election district.
Sec. 5. The word “citizens” as used in this
act shall be construed to mean all persons, ex
cept Indians not taxed, born in the United Sates
or duly naturalized. Any male citizen above
the age of twenty-one years shall be competent
to be elected to act as a delegate to said conven
tion.
Sec. 6. All persons who held office, either
civil or military, under the government of the so-
called Confederate States of America, or who
swore allegiance to said government, are hereby
declared to have forfeited their citizenship, and
to have renounced all allegiance to the United
States, and shall not be entitled to exercise the
elective franchise until five years after they have
filed their intention or desire to be re-invested
with the right of citizenship, and shall swear
allegiance to the United States and renounce
allegiance to all other governments or pretended
governments, the said application to be filed and
oath taken in the srrne courts that by law are
authorized to naturalize foreigners.
Sec. 7. No constitution shall be presented io
or acted on by Congress, which denies to any
citizen any rights, privileges or immunities which
are granted to any other citizen in the State. All
laws shall be impartial, without regard to race
or former condition. If the provisions of this
I section should ever be altered, repealed, expung
ed, or in any waj r abrogated, this act shall lose
its right to be represented in Congress.
Sec. 8. Whenever the foregoing conditions
shall be complied with, the citizens of said State
may present sneb constitution to Congress, and
if the same shall ba approved by Congres, said
State shall be declared entitled to the rights,
privileges, and immunities, and be subjected to
all the obligations and liabilities, of a State with
in the Union. No Senator or Representative
shall be admitted into either House of Congress
until Congress shall have declared the States en
titled thereto.
Here then is the radical reconstruction plan. It
is the opposite in its every feature of that pro.
claimed by the President to be bis plan, or
policy, and is introduced now when a succession
of triumphs over the President in Congress has
made his enemies, and the enemies of the South,
bolder than they ever have been in avowing their
designs. This hill ignores all that has already
been done in the House on reconstruction, and
does so, too, at a time when the Senate is just
about to act upon those measures of recons true
tion which had gone through all the forms Of
legislation in the lower branch of Congress and
which had been submitted to the Senate for de
liberation and action upon them. Although
meant in earnest, it does, as the New York World
says, present “an air of burlesque fitted to cover
the President’s enemies with derision.” Bat we
forbear, as neither denunciation, nor persuasion,
neither protestation nor appeal, on the part of
the Southern i>eople or the Southern press, will
avail anything with this radical Congress and its
still more radical leader. The day is their own
now, let them make the most of It! Soon there
will lie a change when retribution will overtake
them.
The Lawyer*’ Teat Oatb.
We lay before our readers, in another column
the argument made by the United States District
Attorney for Georgia, the Hon. H. S. Fitch.
before Judge Erskine, at Savannah, in favor
of the constitutionality of the “Test Oath.” To
day, we give the judgment of the Court in the
case before it. The reader will perceive that so
far as the oath was intended to apply in the case,
to-wit: that Judge Law should be allowed to
practice in the Court without being required to
take and subscribe the test oath—it has been pro
nounced by Judge Erskine as “repugnant to the
Constitution of the United Btates.”
We copy the following from the Savannah
News & Herald:
We have published in full the arguments of
counsel in this cause.
On the opening of the Court yesterday, His
Honor, Judge Erskine, stated the case as follows:
Erparte William Law, Petitioner.
On the first day of the term a motion was
made by Mr. Law for leave to show cause why
he ought to be allowed to continue to practice in
this court without being required to take and
subscribe the oath prescribed by the act of Con
gress, passed January 24, 1865. Leave being
granted to show cause, Mr. Law showed that in
December, A. D. 1817, he Iras duly admitted and
licensed to practice as an attorney, counsellor,
proctor and advocate of this court; that he was,
since 1859, attorney of a record in a case now
pending before this court; that he had taken and
subscribed the amnesty oath; and that being
within the 13th exception of the President’s pro
clamation of May 29,1865, he applied for, and
had received from the President of the United
States, a grant of pardon and amnesty under said
proclamation; that he had duly accepted the
special grant of pardon, and had filed in the
clerk’s office of this court an authenticated copy
of the same.
His Honor then remarked briefly that the
matter before this court is under advisement in
the Supreme Court of the United States—the
highest Judical tribunal in the land—and when
their decision is pronounced, it will thenceforth
govern this court. He said he would merely
announce the judgment of the court this mora-
iug, and at a future day would deliver an opinion
on the questions of law regularly arising in the
case.
In the course of his remarks the Judge paid
a handsome compliment to United States District
Attorney, Col. Fitch, and concluded by saying
three of our most learned and eminent jurists
had contended against the constitutionality of
the statute, and those arguments had been re
plied to by the District Attorney in an argument,
distinguished for its originality, and characteriz
ed by the graces of the accomplished scholar,
and the unmistakable ability of the thorough
lawyer.
The judgment of the court was as follows:
“Upon argument had on the said motion of
the petitioner, Mr. Law, and alter full considera
tion of the matters of fact and of law involved
in the motion, it is ordered and adjudged by the
court that the act ot Congress, approved January
twenty-fourth, eighteen hundred and sixty-five,
so far as it was intended to apply to this case, is
repugnant to the Constitution of the United
States.
“Motion granted."
Hon. Wm. Law, Ex-Gov. Jos. E. Brown, (of
the Northern District,) and Hon. Thos. E. Lloyd
argued against the constitutionality of the act.
United States District Attorney Col. Henry S.
Fitch, in favor of its constitutionality.
Colored Spielers In Trouble—Game of Leap
Froe at a Negro Faro Rank.
Long before the Civil Rights Bill, or the re
bellion that produced it, were conceived in the
minds of politicians, sporting gentlemen of color
were accustomed to gather around the “ sweat
doth,” the “ faro spread ” and the rouolette
wheel, and venture their “stakes” on fortune’s
smiles or frowns And to-day, in every city n
the lahdywhereftnere is any considerable nmn
ber of colored people, there are “spieler” of
safron, saddle and tar color, (vide speech, in
Council, of Mr. Glass, of the Fourth Ward,) as
ambitious of being considered “sports” of nerve
as are any of the heavy betters of milder hue.—
Washington Adams Davis, he of glossy ebony
face, tight fitting, strapped pantaloons, neatly
polished leather, swallow-tailed coat of blue,
with buttons ot resplendent brass, extravagantly
frilled shirt-front, minstrellike collar, half-a-dozen
finger rings, and attenuate rattan, may be con
sidered the head and front of the sporting frater
nitv of color. And Washington Adams Davis
displays just as much nerve in “going down” to
the indispensable inside vest pocket tor his “roll”
as can be found among any of the “blue-chip”
betters of Saratoga, New York, or even the
Queen City. But the gamblers ot color have
their troubles with the laws as well as their
brethren in white.
Yesterday afternoon for instance, detectives
Colcher and Mitchell, under the authority ot a
warrant sworn out bv a loser, visited One ot
their faro banks, on Broadway, near Sixth.
While Mitchell entered the front door, Colcher
and officer McDermott were posted at the win
dows in the rear, to cut of retreat. As Mitchell
entered, there were to be heard the usual rattling
of*“chips” and buzzing of jsucli trifling remarks
as “ I coppali de deuce, and play de Jacob card
to win; ” “Carry does on de Queen.” “ Who
keeps dose cases dar?” “Dah, splits on the
turn; ” “ Dat are stuck, goss to dat ar case, six; ”
“ Lent me ten dollars; ” “ Can’t, I’m broke,” &c.
The officer’s debut produced a remarkably
rapid change in sights and sounds. The “ deal
er” clapped the box under his coat, and sought
the cellar through a trap, the “lookout” “weeded”
the drawer, flung a slung-shot into the stove, and
played stranger, while those outside the table
made a rush for the windows, playing leap-frog
with each other in their haste, and displaying
eyes of wonderful size as they came through
the glass in rapid succession, some head first,
some feet first, and some ball style, down upon
the heads and shoulders of the astonished officers
beneath, who were able to secure only two or
three of them.
Burning of tbe New York Academy of
Mnslc-DIax NEaretzek Implicate* Ren-
nett.
The following singular statement is copied
from the New York Times. The charge im
plied against Bennett-is incredible :
statement of max maretzek.
I am at a loss to understand the cause of the
fire, unless it was the act of an incendiary. I
am convinced, indeed, after careful examination,
and upon a review of all the circumstances at
tending the lire, that it was the deliberate act of
interested parties. That I was not interested is
evident from the fact that I have lost some sev
enteen thousand dollars. The fire was first dis
covered under the parquette, and almost at once
it appeared at the root of the Academy. The
place beneath the parquette has not been used,
to my knowledge, since the Bal d’Opera, and no
fire is ever needed there. Mme. Gazzaniga was,
it seems, somewhat tardy in leaving the house
after the opera, and while yet in her dressing-
room was accosted by two men, who said to her:
Come, hurry up, Madame, you are late.” At
that time, even, the house smelled, I am told, as
it it was filled with brimstone.
Last November, Stephen H. Branch met me
and said, “My dear Max, before a year is passed,
every one of tie managers in the Managers’ As-
socation will be assassinated or his house will
be burned down.” Well, Mr. Bamum’s Museum
was burned, and Butler’s, 444 Broadway,(was
burned, and now tbe Academy is gone; so Ste
phen, it seems, was a pretty good prophet. At
any event, the work was well done—all Ls lost that
could be reached but as Webster said, “I still
live,” and if any body has a claim against me,
let him present iL The arrangements for next
year are good as ever, and let him langh who
wins. As for myself, let ns wait awhile. For
tunately, my insurance runs from June to June,
so that I am covered. If any other person, by
any chance, should have a grudge against me
and the Academy, as, for instance, if I, in com
mon with Butler, of No. 444 Broadway and
Barnnm. of the Museum, should have taken an
active part in a crusade against anybody, in any
way, why of course he or it would be glad to
have me burned out, as Barnnm was and as But
ler was (queer coincidence—wasn’t it ?) But of
course there is no such person—oh no—“not for
no money/’ It is possible that the fire was ac
cidental. but not probable. Quite naturally I
look, and so will the public, thank God, at both
sides of this affair, and it there are any parties
whose interests could be served—personal, pro
fessional, or general—by this incendiarism, they
will be closely scrutinized, and, if guilty,
brought to retribution.
.The fire was extinguished on Tuesday at
dawn. The flames destroyed the Academy of
Music, the University Medical College, the
Evangelical Lutheran Church, and a number ot
other buildings, the damage being likely to
amount to nearley two millions of dollars.
THE LAWYER’S TEST OATH.
Halted State* District Court, Southern
District of Georgia. May Term, 1866.
A{-Partc William Law.
ARGUMENT OF* HON. HENRY S. FITCH, UNITED
STATES DISTRICT ATTORNEY
May it Please the Court :
I am confident that the court will indulge me
in a few prffiHunary remarks somewhat person
al to myself. The pro-movent in this instance
is one of those rare old gentlemen who, through
all the trials and vicissitudes lor half a century
of professional labor, has, wherever known, com
manded admiration for his legal lore, and honor
for his private' virtues.
He is the recognized patriarch of the Savannah
bar—a bar, your Honor, that has generously ex
tended me, a comparative stranger, so many
acts, not of mere courtesy only, but of genial
kindness, as to render my dutj- upon this occa
sion as unpleasant as it is imperative. It re
quires a peculiar conformation of mind in any
one reared under republican institutions and
taught to love the liberality of republican laws,
to contemplate such a legislative enactment as
the one now before the court with any degree of
satisfaction. Although not so entitled, it has,
with startling unanimity, been christened by
both friend and foe the Test Oath Act. This
soubriquet is the verdict of the “ consensus homi-
num "—one of the cardinal rules of truth. Test
oaths have never been very favorably received
by any people^much less by a free and enlight
ened people. Their brief and fitful existences,
whether judicially or historically considered,
have not beeqjlattering to either the wisdom or
honor of their authors. The most lenient judg
ment, I believe, that has ever been enforced by
public opinion against test oaths and their advo
cates, has been—-oblivion.
I doubt now^vhether there lives, in this noon
day of civilization, a gentleman who would con
sider an ancestral connection with that class of
legislation a v^rydesirable heirloom.
This is especially true when we reflect upon
the class of citizens to which this act applies.
The legal profession is acknowledged to be one
ot the most derating and ennobling pursuits to
which man caimKidicate his intellect. Next to
the study of divinity, the study of law fosters
that chivalry of mind—that proud submission
and dignified obedience to the public weal—that
stem, comprehensive sense of duty—that intel
lectual strengfkfconscious of its own weakness,
by which all stable governments are created and
perpetuated.
There follows, as a natural sequence, a har
mony of thought and sentiment—a perceptible
tree masonry and good fellowship in the profes
sion—which renders such restrictions as the act
imposes wearisome and painful.
The encomium of Cicero upon the liberal arts
could have been applied with still greater torce
to the profession of which he was so splendid
an ornament: “ Habent quoddam commune vin
culum et quasi cognatione quadam inter se conti-
nentur."
One feels an irrepressible impulse to say to
Government—
“Swear priests and cowards, and men cantelous,
Old table carrions and snch suffering souls
That welcome wrongs; onto bad causes swear
Such creatures as men doubt; but do not stain
The even virtue of our enterprise,
Nor the insuppstssive mettle of our spirits,
To think that, or our cause or our performance
Did need an oath.”
But the question before your Honor is not the
policy of this law, but its validity a3 a law, and
to that I shall now address my argument. If
this law is constitutional, and, after a careful ex
amination of all the objections urged by learned
counsel, I inn rifiniy of the opinion it is, then it
must be respected and enforced until modified or
repealed by the Congress of the United States.
The objection^gtrayed against the constitution
ality of the law are numerous and plausible.
They have been urged before this court in ex-
tenso, and with'aiarked ability by Judge Law
and Governor Brown. They are none the less
worthy of serious consideration from having
been previously presented on a similar motion
before the Supretne Court, in a most learned and
exhaustive argument, to which Mr. Garland and
Mr. Marr contributed, the result of an elaborate
research into both American and European juris
prudence, and to the elucidation of which Mr.
Reverdy Johnson lent the “full voiced rhetoric
of his master mouth.”
One of the standard rules for interpreting
statutes is to inquire into the exigencies of the
times when passed, and the evils against which
it was intended to guard.
The court will take judicial notice of the fact
that this Government has just passed through
the most gigantic civil war recorded in the his
tory of nations—^a war in which during one cam
paign more men were slain than ever raised the
pennant of Yorkjpr'Lancaster—a war that has
revolutionizad^RMKLfe of war itself’ and un
tie court
_ tion and
territorial eicteiiTbi this conflict, and the legal
status of the belligerents under the public law
during its continuance and at its termination.—
The court, in my judgment, should also take into
consideration the fact that this revolution was
inauguated to decide the true construction of the
Constitution under which this law was enacted.—
That construction, although decided by the ar
bitrament of the sword, must be received by the
courts, as the true one, and all logical deductions
drawn therefrom must be by it respected.
Yattel has been quoted by Governor Brown to
furnish us with a definition of a “good govern
ment.” Grotius, Puffendorf, etc., etc., will also
supply any amount of these commendable
generalities. In Sir Thomas Moore’s Utopia,
however, the Court will find this and similar
theories of governmental godliness elaborated
with a graceful rhetoric that has rendered it one
of the most immortal works of—fiction. I con
fess myself an irreverent heretic upon the subject
of that ponderous mystery known as the Law of
Nations. My belief is that the only true defini
tion of the Law of Nations is contained in Aaron
Burr’s aphorism—whatever is “boldly asserted
and successfully maintained.”
There is one rule, however, which, whether
laid down as the law of nations or not, is the law
ot nations, aad that is, that whenever any gov
ernment decjdes by the sword a disputed point
of its domestic policy, that policy is the supreme
law of the land, so far as that nation is concern
ed, and all corollaries thereof must be recognized.
The cardinal points permanently settled by the
late civil war from which we have just emerged,
was that the Government oi the United States
was to use a solecism, the supreme sovereign in
all matters affecting the public weal; that its
delegated powers were not restricted to the ex
tent many publicists and jurists had previously
maintained; and that, above all, it was empow
ered to pass any laws, and enforce any measures
necessary to perpetuate the national existence.—
I deny the right of any court, Federal or State,
to dispute this popular judgment—judgment ob
tained at the fearful cost of one million men,
$4,000,000,000 treasure. Keeping this central
fact in view, let ns examine the authorities ad
duced in support of the objection urged against
this law. ‘The research of counsel has brushed
the venerable dust from many a half forgotten
folio that else had fallen, despite the pomice-
stone of the Socii to ignoble uses. Lone repre
sentatives of first editions* grateful to the eyes of
antiquarians, have been paraded before the court
—a picturesque desolation of moths and black-
letter, over which the curious scholar might
dream as delightfully as Layard over the foliated
capitals and ivy-clad entablatures of a Grecian
linn. There is a sweet relish of antiquity in
these studies. But, your honor^the Constitution,
the instrument now under disenssion, has been
interpreted differently, and that by the greatest
expounder known to governments—war.
We are told, your honor, that certain princi
ples have been “sanctioned by the wisdom of
ages.” I c»re not if they he found upon the
highest shelf of, the Bodleian library/Scorched
by the cinders ov Herculeum, or sacred with As
syrian mad, if they conflict with'the verdict of
the recent revolution they are but as chaff. “The
wisdom of ages” is not always the wisdom of to
day ; if it were, Sidney Smith’s inimitable pro
duction known as the Noodles oration would be
a masterly argument. Few men in the country,
excepting certain irredeemable fools, but are less
wise in their conceit than they were five years
ago. We not refer to consular dates for ancient
laws or dead opinions—they can be found in
United States statutes at large passim.
Revolution, like time, “sadly overcometh all
things.” A decade hence the student of Ameri
can jurisprudence may find himself, like Sir
Thomas Brown’s traveler among the pyramids,
inquiring of history, “who buiideth them, and
she mambleth something, but what it is he hear-
eth not”
It may be heterodox, but I am firmly of opin
ion that this war has settled, and settled forever,
one vital principle affecting the entire jurispru
dence of the country, and which the judiciary
will be compelled to consider, namely—that the
spirit, if not the letter of the Constitution, confers
upon Congress far greater praters than hare hith
erto been conceded by the courts, and that from that
standpoint the acts of Congress must be hereafter
construed.
Now, may it please the court, let us apply to
the statute the primary rule of interpretation be
fore recited.
When was this act passed ? It was passed in
1865* as a supplementary act to the act of July,
1862, at a time when Congress just began to see
the glimmering beacon through the midnight
of rebellion. What were the evils intended to be
prevented ? The re-occurrence of similar dangers.
Men holding high trusts under the General Gov
ernment—Senators, Representatives, Postmas
ters, Collectors had abandoned their offices in the
hour of peril, had forsworn their allegiance, had
adopted another and different Constitution for
their supreme law and had sworn to support and
were supporting another and a hostile govern
ment to the United States, and although acting
in a great majority of cases, from consciencious
convictions of duty, were necessarily, under the
laws of the United States, criminals, bad citizens,
malfeasants in office and unworthy of future
confidence. Was it at a time, then, for legisla
tive delicacies—for the technical refinements of
abstract laws ? Is it astonishing that Congress
should have refused to respect the sacredness of
mouldy precedents, but like the impetuous Marc-
beau have swallowed a few formulas ?
Revolutions are not generally suppressed on
Lamartine principles. It has been said by Mr. Gar
land, in his argument before the Supreme Court,
that the act was an act to suppress the rebellion.
On the contrary, your Honor, it was an act to
prevent the possibility of another rebellion. It
is an act passed in evident accord with the first
general power, delegated by the people to Con
gress in the Constitution, (Sec. VHL Art. I,) “to
provide for its common defense and general wel
fare of the United States.” It is not a penal act,
as has been so earnestly urged; but a declara
tory act, and though retrospective in language,
intended to protect the Government from future
betrayal by its own officers.
But it is maintained first, that an attorney is
an officer of the court, and not an officer ot the
Government—a private officer and not a public
officer, and to that extent is beyond the
scope of Congressional power. It is difficult to
see how an officer within the meaning of that
word as understood in American jurisprudence
can be anythiug else than a public officer. A
clergyman even, wherever he performs an act af
fecting the public interest, such as solemnizing a
marriage, is a public officer—and to the full ex
tent ot all public privileges conferred upon him
by his ordination he is a public officer. (Bou-
vier’s Law Dictionary, vol. 1, 259—260.
So of an attorney, his profession is his private
property—his license to practice the profession
is his commission as a public officer—subject to
certain express and implied conditions—which
conditions the original grantor can enforce either
directly or indirectly. It will not be asserted, I
presume, that any man qualified by course of
study for the office of an attorney, has, ipso facto,
a right to practice before the United States
Courts. If it is not a right, therefore, inherent
in the profession itself, it must be a privilege con
ceded by some superior authority. Let us see by
whom.
The first section of the third article of the Con
stitution vests the judicial power ot the United
States in one Supreme Court, and such inferior
courts as Congress may from time to time ordain
and establish. By the eighth section of article
one, among the powers delegated to Congress is
the powerlo establish interior courts, in ac
cordance with these Constituted ii powers, Con
gress passed the Judiciary act of 1789, by the
thirty-fifth section of which the courts are em
powered to admit such attorneys anil counsels,
as by the rules of the said courts respectively
shall be permitted to manage and conduct causes
therein.
Does not the very delegation of this power to
the court snow that Congress held the original
power itself, so far as inferior courts are con
cerned, and could place as many conditions upon
its exercise by another as it might deem proper?
If it could have done so then, could it not do
so now ? Is the act of 1789 like the laws of the
Medes and Persians, or can it be repealed at
pleasure, either directly or indirectly by the pas
sage of a subsequent act inconsistent with its pro
visions ? Such a theory would abrogate the
great principle laid down by Bentham as the
foundation of all laws. “Defeasible perpetuity
—a perpetuity defeasible by alteration of the cir
cumstances and reasons upon which the law was
founded.” Does not the power to create a court
includa the power to prescribe the qualifications
of all officers incidental thereto ? Does not the
power to ordain and establish imply the power
to abolish ? and if Congress can abolish a court,
can it not restrict the extent of its jurisdiction
over its own officers ? It not only can be done,
but it has been done. In 1802 Congress passed
an act entitled “an act for the more convenient
organization of the courts of the United States.”
Under this act new courts were established, new
judges appointed, and confirmed and qualified.
One year after, on the 4tli of January, 1803, Mr.
Breckinridge introduced into the Senate a reso
lution to repeal this law. Then followed one of
the most remarkable and exciting debates in the
annals of Congress. Many members of the
Seventh Congress were men of brilliant intellect
and rare culture; the importance of the measure
was fully appreciated; the arguments learned,
instructive and statesmanlike, and that provision
of the Constitution authorizing Congress to ordain
and establish inferior Courts with the incidental
powers attaching thereto, was debated in, extenso,
and the result was the repeal of the law.
The constitutionality of this act of Congress
has never been judicially disputed. In fact the
acts of Congress extending and restricting the
powers of District and Circuit Courts are too mi
ni eritSis lof^ftation. Again, there ark now several
bills before Congress remodelling the entire judi
ciary of the United States. Even as early as the
22il July, 1813, (1 statute 21,) Congress instructed
the courts as to the practice of attorneys. Have
they not on the same principle the power to say
w'lio shall be attorneys ? What becomes of the
vested rights of officers, the sanctity of incorpo
real hereditiments in the face ot these historical
facts ? It - Congress can create an officer with a
tenure for life and within one year remove the
officer by abolishing his office, can it not prescribe
a fortiori the qualifications of such inferior offi
cers as they may empower him to appoint V
Does not the greater include the less, or is
there something about the intangibility of an at
torney’s office which enables him to evade these
legislative supervisions? It is conceded by Judges
Trigg and Judge Busteed that if an attorney, li
censed by the United States Court, is pro tanto a
public officer, Congress can limit his tenure and
prescribe his qualifications. Do not the States
claim and exercise the same authority and upon
the same principle ? Do not the State laws pre
scribe the age, the study and the character of ap
plicants for admission ? Could they not prescribe
also the loyalty of the candidate for such honors,
or would that be infringing upon inherent pre
rogatives of the court they had themselves crea
ted ?
Does not Georgia say to the attorney of Ala
bama, you shall not conduct a case before my
courts unless by the laws of Alabama a similaj
privilege is granted Georgians, thus depriving
him of his vested rights pro tanto, and making
him responsible for the courtesy or churlishness
of a legislature over which he had no control ?
Does not the code of Georgia also say to one
class of applicants you must prove in open court
that you have the necessary qualifications of an
attorney and a good moral character as a citizen?
and does it not say to another class, the felicitous
recipient of a diploma from the Lumpkin Law
School, be your qualification or character what
they may, you are a lawyer “ to the manor bom ?”
If Georgia can make distinction among attorneys
for the benefit of Lumpkin, cannot Congress ex
ercise the same discretion “ for the common de
fense and general welfare of the United States ?”
Hon. Reverdy Johnson in liis argument, while
contending that the admission of an attorney is
a judicial act admits that if it is a ministerial
one Congress can prescribe the qualifications.—
However sound this distinction may be when
applied to the Supreme Court of the United
States—one of the great branches of our Govern
ment—it is very questionable when applied to
the inferior courts, whose jurisdiction Congress
can, “from time to time,” diminish or extend.
But we are told that this reasoning, if correct,
only applies to applicants for admission, and not
to those admitted. This brings us to the second
objection to the law, namely: That a license from
the court to practice creates an officer; that an
officer holds property in his office; that no one
can be constitutionally deprived of his property
without due process of law; that this law does
deprive one of his property without due process
of law, and is therefore null and void.
It is rather a subtle division of the word pro
perty, as used in the Constitution, which makes
it applicable to an attorney’s license. It requires
considerable metaphysical acumen to perceive
how a privilege having no standard of value—
often no value at all—a privilege the worth of
which depends upon the owner himself, being
frequently w orthless, that cannot be sold, trans
ferred, assigned, mortgaged, entailed or inheri
ted, can be considered property in tbe substan
tial sense in which that word is evidently in
tended in the Constitution of the United States.
But admitting that an attorney’s office is a pro
perty, let us examine how it may be forfeited.
Governor Browm asks us, with the utmost solem
nity and sincerity, what officer of the government
stands here a3 Judge Law’s accuser, and where
are the charges and specifications? Before a
court martial or a military commission those
inquiries might be relavent; but this court is
neither. Again, the Governor asks what provi
sions of the Penal Code has he violated, and
when and where? What grand jury has in
dicted him, and upon what charge ? The learned
gentleman seems to have forgotten that these
queries are only put in criminal prosecutions,
and after the accused has been brought by the
law before the court in personam. The most
ultra opponent of the act under consideration
will not claim that it is a judicial accusation. It
is simply an inquiry into the legal status oi the
pro-movent. A man suspected of crime may ap
pear before a coroner’s jury and prove an alibi,
or absence of criminal intent, or he may remain
away and take thfe consequences of such infer-
ences-as the law may adduce from circumstan
tial evidence. A juryman or a witness may be
placed on hi3 voir dire, and being questioned as
to his qualification or his character, m*3y decline
to answer, and be rejected for cause.
In none of these cases is an indictment, ver
dict or a sentence required. The principal ob
jection urged against this act is, it deprives a
man of his office, which is alleged to be property,
without due process of law. That a man may
lie deprived of his property in due process of
law, without proceeding criminally, is too evi
dent for argument.
There is such a thing as a man’s losing his
property by the mere operation of law, and I
claim here that if an attorney, unable to take
this oath, has a property in his former license to
practice before this court, he has forfeited that
property by operation of law, and that no other
evidence is necessary than his inability to take
the required oath ot qualification.
A man may forfeit his office not only by “ trea
son, felony or misdemeanor,” but he may forfeit
it in a much more reputable manner, by non-user
or abuser, a lapse, or by acceptance ot another
office incompatible with the duties of the former.
In none of these latter cases is an impeachment
or an indictment required to enable t lie court to
declare the officer functus officio. As repeated
reference lias been made to Bacon by learned
counsel, it may be well to examine him upon this
point: “ It is laid down in general that if an of
ficer acts contrary to the nature and duty of his
office, or if he refuse to act at all, that in these
cases the office be forfeited.” Bacon’s Abridge
ment, vol Y, chapter M.
There are, says Coke, three causes ot forfeiture
or seizure of office by matter in deed: 1st, by
abuser ; 2d, by non-user ; 3d, refusal. In speak
ing of non-user, he says : “ When the office con
cernsthe administration of justice or the com
monwealtli, the officer ex-officio ought to attend
without any demand or request; then, by non
user or non-attendance the office is forfeited
Again, if the conditions in law which arc annex
ed to officers be not observed and fulfilled, the
office is lost forever.” Bacon’s Abridgement
vol. V, chapter M.
Again, a filares ot C. B. 13, being absent tw
years, and being out of his office from 3 r ear to
year without license of the court, was diseharg
ed b3' the Chief Justice ex assensu socioru m suorum
by words spoken openly’ in court; and though
there was no record made of the discharge, nor
any legal accusation, yet the discharge was held
good. Bacon, Ibid.
In the case of Milauro vs. Thatcher, 1 Ter.
Rep. 81, Ashurst, Justice, sa3's: In the case of
tw T o offices, I think the acceptance ot the latter
does absolutely, and ipso facto, avoid the former,
although the superior office, if they are incom
patible. Buller, Justice, ex presses t tie same opin
ion. Williams’ Abridgement, vol. V, 550.
In the case ot the King vs. Sir Trealawney
Lord Mansfield expressly said that if the two of
fices were incompatible the acceptance of the lat
ter would imply a surrender of the former.—Ibid.
Franchises may be forfeited by breach ot the
trust upon which they are granted, and a perver
sion of the end of their grant. So franchises
may be forfeited by misuser or abuser, or other
misdemeanor in him to whom they are granted
Comyn’s Digest, vol. IV, 500.
So an office shall be lost by forfeiture, if he
break the conditions annexed to it by law, by
non-user or abuser. Conan’s Digest, vol. V., 151
So if any within the realm having office, a fee
by the King’s grant, attend not on him when the
King goes to his wars, he shall forfeit his office.
Same, p. 151.
So a man shall lose his office if he accept an
other office incompatible.
It is evident, your Honor, from these citations
that a man may forfeit by his own act his fran
chise, without being proceeded against, in per
sonam, and without ever having been indicted or
tried and convicted of any offense. The forfeit
ure is worked instanter by mere operation of law
And when a man attempts to resume the func
tions so forfeited, it is only necessaty that the
fact be brought to the notice of the court to ena
ble it to take judicial cognizance ot all the disa
bilities flowing therefrom.
It will not be denied, I presume, that to for
swear one’s allegiance to the Government under
wiiose laws he held an office, or to acknowledge
allegiance to another Government at war with
his own, is such an abuser as ipso facto vacates
the office. It will not either be denied that to
accept another office ot any kind—such as a li
cense to practice in the court of a Government
hostile to the United States, is such an acceptance
as implies the surrender of any office he may
have held under the law's of the United States.
And this forfeiture takes effect, not from the
date of an}- record of investigation into the act.
but from the commission of tbe act itself. But
we are told 3 T eu must present some evidence of
the commission of the act ot forfeiture, and that
you shall not pluck that evidence from the mouth
of the officer himself, for to do so is to violate
that section of the Constitution which provides
that no one in a criminal case shall be compelled
to be a witness against himself.
In the first place, I den3 r that the proffer of this
oath can by any ingenuity be tortured into
“criminal case” within the meaning of those
words as used in the Constitution. It is simply
a judicial inquiry into the eligibility of the pro
movent for the office which he seeks.
But waiving that point for the present, I main
tain that n+> proof ^.necessary, or by law inquired,
to establish this forfeiture of office than is tobe
found in the public laws—the public records and
public history ot w hich the court must take judi
cial notice.
That the State of Georgia was in insurrection
against the United States; that for four 3 r ears her
citizens,with all the machinery of her State Gov
ernment, resisted with arms the lawful author
ity of the United States, is a fact in history of
which this court must take judicial notice.
That the legal status of every citizen resident
within that State during the insurrection lias been
changed, is a conclusion of law of which this
court must take judicial notice.
That every such resident citizen aided and
abetted, directly or indirectly, the enemies of the
United States, is a fact of public notoriety, of
which this court must take judicial notice, and
which throws the onus probandi upon every sucli
resident wlio comes voluntarily into the United
States Court to claim a franchise from the gov
ernment.
This doctrine is distinctly and strongly laid
dow r n by Chief Justice Chase in the case of Mrs.
Alexander’s cotton. 2Wal.,416. The Chief Jus
tice in delivering the judgment of thecourt, says :
“The court cannot inquire into the personal
character and disposition of individual inhabi
tants of enemy territory. We must be governed
by the principle of public law so often announc
ed from this bench as applicable alike to civil
and international wars, that all the people of
each State or district in insurreection against the
United States must he regarded as enemies until,
by the action of the legislature and the executive,
or otherwise, that relation is thoroughly and per
manently changed.” It requires more charity
than justice to perceive how any one holding an
office under the laws of the United States whether
by license of a United States Court or by com
mission from a department, who has assumed
the status of an enemy, can claim a vested right
in that office and call upon the courts of the
United States to recognize him as such officer.—
We will be told, however, that the proclamation
of amnesty, the proclamation of peace, and the
special Presidential pardons have permanently
changed this relation. Admitted. Amnesty or
pardon relieves the community or the individual
from all the pains and penalties incurred by the
offense pardoned, and restores him to the peace
ful possession of such property as he may have
had, against which no proceedings have been
taken, or against which proceedings are pending.
But I deny that any number ol pardons or pro
clamations can restore property already con
demned, or revive an office terminated by opera
tion of law or destroyed by previous forfeiture.
If I am correct in the position, that forfeiture of
an office dates from the commission of the act
forfeiting its existence, and not from the record
showing the act, then it follows that no exercise
of mere executive clemency can subsequently re
store it.
The consequences of such forfeiture can only
be avoided by creating a new office ab initio—
conferring a commission or a new license, and
Congress says these shall not be bestowed upon
any one who has not the essential qualification
of loyalty.
Are we to be told that when the United States
Judge who holds an office for life accepts a
Judgeship under a government in arms against
the United States does not ipso facto forfeit his
office, but still holds a vested right therein, enti
tling him to the privileges and emoluments there
of, and of which he can only be deprived on
conviction by impeachment ? Is it possible that
all the Postmasters and United States Marshals
in insurrectionary district whose successors have
not been appointed are still holding over under
their former commissions—or have long since
forfeited their office by non-user or abuser?—
Will it be claimed that the President’s pardon
would restore them to the position of officers, or
would a new appointment be required ? What
divinity is there that hedges a lawyer that he
escape these disagreeable results ? The truth is
that there Ls a presumption of law necessaril3’
deducted from the public history of the late re
bellion—a presumption inevitable under Chief
Justice Chase’s decision, that every resident at
torney in an insurrectionary district has forfeited
his franchise as an officer ot the United States
Courts. Without the act of Congress, he could
not have resumed his position except by taking
out a new license. If this chain of reasoning is
correct, it follows that the act of 1865 is nor a
penal act, but a declaratory act of qualification.
It does not work a forfeiture of an attorney’s of
fice, for that office was already forfeited, and we
shall have little difficulty in disposing of all
the remaining objections so elaborately urged
against its constitutionality. Although retrospec
tive, it cannot be an ex postfacto law, for it does
not adopt any criminal procedure, and inflicts no
pain and penalty on the person.
The distinction between retrospective and ex
post facto law is ably elucidated in the case of Cal-
der vs. Bull, by Judge Chase, in that portion of
his opinion which Governor Brown did not read,
the purport of which opinion is, that the prohibi
tion as to the ex post facto laws was intended to
protect the person in [criminal {prosecutions and
not to secure the citizen in his private rights of
property or contract. 2 Dallis, 401. How any
court can construe ad act to be ex post facto which
only inquires into the character and antecedents
of an applicant for office, and provides no sanc
tion except a refusal tw confer future honors and
emoluments, passes my comprehension.
Neither can it be said the act is unconstitu
tional, in this, that it deprives a citizen of his
property without-due process of law; for if, as I
have endeavored to show,'the office (the property
in controversy) has been already determined by
operation of law, how can the proffer of the oath
in the act deprive one of what he does not pos
sess, or work a forfeiture of property already
forfeited ? Nor is the objection that it violates
tbe clause ot the Constitution which provides
that every one shall have the privilege of a hear
ing by counsel any more tenable. It is in reality
a petilio pnncipii, in this, that the question is not:
shall the accused have counsel ? but, who shall
be entitled to act as counsel ? Nor does presenta
tion of a Presidential pardon obviate these diffi
culties. It is really a plea in confession and
avoidance, and it follows that if a man can only
resume his office by virtue ot a pardon, that
without that pardon he possesses no office. It
onty requires a guarantee of future good faith.
1 think I have demonstrated that no pardon
can restore a forfeited office, however much it
may quality a man for a new one. The office
has reverted back to the grantor. All that a
pardon could do, at best, would be to place the
recipient in statu quo ante helium ; to put him
before the law just where he would have beep
had lie not committed the offense, and yet, even-
then he would be required to quality under this
act before he could obtain a license to practice.
The law is general, applicable to loyal as well as
disloyal citizens, to the innocent as well as to the
guilty. A pardon certainly can confer no special
privileges not possessed by those requiring no
pardon; yet if this law is constitutional, certainly
a pardon which exempts a man from an obliga
tion binding upon another who had never offend
ed, would confer a very important special privi
lege.
In fact, the only serious argument advanced
against this act, assuming what learned counsel
assert that an Attorney hold property in his
office, is predicated upon the assertion that it de
prives^ citizen of his property without due course
of law. Upon this hangs every other objection.
If this is unsound the others fall for want of a
major permises. It is not penal for it inflicts no
pains and penalties on the person. It cannot be
ex post facto unless it is penal. It does not violate
constitutional provision in compelling a man to
be a witness against himself, unless it is a crimi
nal proceeding, and there can be no criminal
proceedings except under a penal statute. It
cannot be said to deprive an accused of his right
of counsel, for its very purport is to provide a
wa3 r for the admission of counsel A citizen is
not permitted to introduce whon lie pleases as
counsel; he is only guaranteed the”
troduee one licensed to practice. It cannot be
said that it defines offenses unknown to the Con
stitution, for treason; aiding and abetting treason,
felonies and misdemeanors certainly include any
offenses set forth in this act. It does not pre
scribe a different and greater punishment than
the Constitution allowed, for surely a denial of
an attorney’s license (however important learned
counsel may consider it) is more endurable than
death, confiscation or imprisonment.
Therefore, J maintain, 1st. That if the pro
movent’s former license constituted him an
officer, and that office was property, it has been
forfeited by operation of law.
2d. Of that forfeiture, resulting as it does from
facts of public record, the court must take judi
cial notice.
3d. That being forfeited, this motion simply is
an application for admission under a new license.
4th. Being sueli an application, the act of 1S65
only prescribes a qualification.
5tli. That the qualification prescribed is per
fectly constitutional.
There is another phase of this question to
which I wish to call attention, which, although
it does not bear upon tbe constitutionality of this
law, has a very important bearing upon this mo
tion, and is worthy of serious consideration. By
the act of 1789 it is provided that the Supreme
Court may make such rules and regulations as to
practice of the inferior courts—the Circuit and
District—as it may deem proper, and it is well
settled that whenever a rule of the inferior court
conflicts with any rule of the Supreme Court it
is invalid, and that whenever the Supreme Court
adopts a rule affecting the practice of the Inferior
Courts, it is obligatory as a decision until re
scinded.
This point has been even recently reiterated.
2 Black, 509. .
The Supreme Court, on March 10,1865, amend
ed the second rule by embodying therein the
oath contained in this act, and ordered that all
officers of the court shall subscribe to the oatli
contained in the said act.
Now, although this order is nj5t in terms ili- *
reefed to the interior courts, there can be no
doubt that it is in intent, anil should be by them
respected as such. It expresses, also, indirectly
the opinion of the Supreme Court upon the con
stitutionality of the act, for it would be unallow
able to suppose the highest court of the land
would embody in their own rules a law they be
lieved or suspected of being in violation ;>f the
Constitution.
Much has been said about the hardship of this
law. It is a mere extravaganza to sa3 r that it
deprives a man of his profession. It only denies
his privilege to exercise that profession in the
Courts of the United States unless he can sub
scribe to their rules.
It is hardly necessary, in conclusion, to men
tion the oppressive responsibility attaching to
any court that proclaims a statute, passed by the
highest Legislative body known to our Govern
ment, to be in violation of the Constitution of the
United States. It has been judicially conceded
from Chief Justice Marshall down to Judge
Busteed. It must he palpably void, unquestion
ably repugnant to some provision of that instru
ment before even the Supreme Court would be
justified in pronouncing it invalid.
- If there is a doubt, the Legislature of the Na
tion, forming as they do, a co-ordinate branch of
the Government, should have the benefit of that
doubt. But where a great people, struggling in
the agony of a terrible civil conflict, say to their
servants in tones not to be misunderstood:
“ jDarent opernm consules, nequid republica detri
ments caperet." See to it, ye Senators and Repre
sentatives, that no like harm comes to this re
public—there is a sanctity and a sovereigntj r in
th« edict that no court should treat lightly.
Confederates in Mexico.—A correspon
dent of the Liberal Strife, thus alludes to the Con
federates in Mexico:
The Confedrates whose history since the re
bellion has been identical with Mexico, as Maury,
Magruder, Wilcox, Watkins, Shelby, Price, Har
ris, Hindman, Bee, Slaughter, Dunn, and many
lesser stars of the Confederacy, are strangely scat
tering after a strange connection with the bogus
empire. Maury and Magruder, lately dismissed
from office, as Chiefs of Bureau of Emigration
and Surveying Generals, know not what to do.
Mauiy is in Europe. Tom Rejmolds, of Mis
souri, has been with Magruder as assistant in his
surveying department. Broadwell, also, has been
with Magruder. Young Col. Maury has been as
sistant to his father, and will now join his father
in Europe. Henry W. Allen, ex-Brigadier Gene
ral of the Confederates States arm3 r , and ex-
Governor of Louisiana, laterly editor and pro
prietor of the Mexican Times, was buried on Mon
day, the 23d ult., in the burying ground belong
ing to the United States Government, in full uni
form of the Confederate States army. Jubal
Early Igft for Havana a few weeks since. Quan-
trell is esconced at Cordova, along with Shelby,
Price, Harris and others, who are waiting for
Max to fulfill his promise of land, purchased
some and named their cabins Carlota.
Judge Perkins is also at Cordova. Hindman,
Wilcox and Ledbetter are gone. Slaughter is
running a steam saw-mill near Orizava, and Col.
Green, and all others not mentioned, have left
the capital—we think, for Texas and their homes.
Said that eminent patriot, B. F. Wade, in a
speech made not quite six years ago:
“ I am not one of those who would ask them
to continue iu such a Union. It would be doing
violence to the platform of the party to which I
belong. We have adopted the old declaration
of independence as the basis of our political
movements, which declares that men, when their
government ceases to protect their rights, when
it is so subverted from the true purposes of gov
ernment as to oppose them, Have the right to re
cur to fundamental principles, and, if'need be
to destroy the government under which they
live, and to erect on its ruins another more con
ducive to their welfare. I hold that they have
this right whenever thC3' think the contingency
has come. * * You cannot forcibly hold mert
in this Union, for the attempt to do so, it seems
to me, would subvert the first principles of the
government under which we live ”
Thus spoke Mr. Wade in I860.' In 1866 Mr.
>Y ade favors the hanging of some thousands of
people for doing just what he asserted they had
a perfect right to do .—Philadelphia Age 2 5th
Owing to the almost total absence of frost in
, ranee during the wintercthe Paris icte houses
have been unable to obtain supplies from their
usual sources. Twenty trucks, each carrying
five tons, arrived in the city lately from Basle
Switzerland, and steamers come to Havre every
week from Norway with cargoes of ice in blocks.
The little boys and girls of Richmond Virgi-
nia, ha\e, within a few da3’s past, raised a sum
of money sufficient to erect a neat monument
over tho remains ot little Joseph Davis, a son op
Jett. Davis, who was accidentally killed a few
months before the evacuation of Richmond