THE LAWYERS' TEST OATH,
-*
11JS. fjtetvirt (Court—£outhm gjis't (Georgia,
Nla.y Term, 186(5
Ex Parte WILLIAM LAW.
ARGUMENT OK
Hon. HENRY 8. FITCH,
(J. S. DISTRICT ATTORNEY,
SAVANNAH. HA.:
NEWS AND HERALD, PRINT.
18G6.
ARGUMENT
May it please the Court:
I am confident that the Court will indulge me in a few
preliminary remarks, somewhat personal to myself. The
pro-movent in this instance is one of those rare old gentle¬
men who, through all the trials and vicissitudes of half a
century of professional labor, has, wherever known, corr -
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 extended to me, a com¬
parative stranger, so many acts, not of mere courtesy only,
hut of genial kindness, as to render my duty upon this oc¬
casion as unpleasant as it is imperative. It requires a pecu¬
liar conformation of mind in any one, reared under republi¬
can institutions and taught to love the liberality of republi¬
can 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 hornin-
um "—one of the cardinal rules of truth Test oaths have
never been very favorably received by any people, much
less by a free and enlightened people. Their brief and fitful
existences, whether judicially or historically considered, have
not been flattering to either the wisdom or honor of their
authors. The most lenient judgment, I believe, that has
ever been inforced by public opinion against test oaths and
their advocates, has been—oblivion:
I doubt now whether there lives in this noonday of civili-
4
zation a gentleman who would consider an ancestral connec¬
tion with that class of legislation a very desirable 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 of the most elevating and ennobling
pursuits to which man can dedicate his intellect. Next to
the study of divinity, the study of the law fosters that chiv¬
alry of the mind—that proud submission and dignified obe¬
dience to the public weal—that stern, comprehensive sense
of duty—that intellectual strength conscious of its own weak¬
ness, by which all stable governments are created and
perpetuated.
There follows as a natural sequence—a harmony of
thought and sentiment—a perceptible free masonry and good
fellowship in the profession which render such restrictions
as the act imposes wearisome and painful.
The encomium of Cicero upon the liberal arts could have
been applied with still greater force to the profession of which
he was so splendid an ornament: "Habent quoddum com¬
mune vinculum et quasi cognat.ione qua dam, inter se conti¬
nent ur
One feels an irrepressible impulse to say to Government—
"Swear priests and cowards, and men cautelons,
Old fable carrions ; and such suffering souls
That welcome wrongs ; unto bad causes swear
Such creatures as men doubt; but do not stain
The even virtue of our enterprise,
Nor the insnppressive mettle of our spirits
To think that, ob our cause or our performance
Did >wd an oath.
But the question before your Honor is not the policy of
this law, but its validity as a law, and to that I shall now
address my argument. If this law is constitutional, and
after a careful examination of all the objections urged by
learned counsel, I am clearly of the opinion it is, then it
must be respected and enforced until modified or repealed by
the Congress of the United States. The objections arrayed
5
against the constitutionality of the law are numerous and
plausible.
They have been urged before this Court in extenso, and
with marked 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 be¬
fore the Supreme 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 jurisprudence, and to the elucidation of which
Mr. Reverdy Johnson lent the "full voiced rhetoric of his
master mouth."
One of the standard rule-; for iuterpretinystatut.es is to in¬
quire 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 history of nations—a war in which
during one campaign more men were slain than ever raised
the pennant of York or Lancaster—a war that has revolution¬
ized the science of war itself, and unsettled the diplomacy of
the world. The Court will also take judicial notice of the
duration and territorial extent of this conflict, and the legal
status of the belligerents under the public law during its con¬
tinuance and at its termination. The Court, in my judg¬
ment, should also take into consideration the fact that this
revolution was inaugurated to decide the true construction
of the Constitution under which this law was enacted.
That construction, although decided by the arbitrament of
the sword, must be received by the courts as the true one,
and all logical deductions drawn therefrom must be by them
respected.
Vattei has been quoted by Governor Brown to furnish us
with a definition of a "good government." Grotius, Puffer) -
dorf, Walfius, etc., will also supply any amount of these com-
6
raendable generalities. In Sir Thomas More's Utopia,
however, the Court will find this and similar theories of
government godliness elaborated with a graceful rhetoric that
has rendered it one of the most immortal works of—fiction.
I confess myself an irreverent heretic on the subject of that
ponderous mystery known as the Law of Nations. My be¬
lief is that the only true definition 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 haw of Nations or not, is the Law of Nations, and that
is, that whenever any government decides by the sword a
disputed point of its domestic policy, that policy is the su¬
preme law of the land, so far as that nation is concerned, 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 of the
United States is, to use a solecism, the Supreme Sovereign
in all matters affecting the public weal; that its delegated
powers were not restricted to the extent that many publicists
and jurists had previously maintained ; and, that, above all,
it was empowered to pass any laws, and enforce any meas¬
ures necessary toperpetuate the national existence. I deny
the right of any Court, Federal or State, to dispute this pop¬
ular judgment—a judgment obtained at the fearful cost of
one million men, and $4,000,000,000 of treasure. Keeping
this central fact in view, let us 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 representa¬
tives of first editions, grateful to the eyes of antiquarians,
have been paraded before the Court—a picturesque desolation
of moths and blackletter, over which the curious scholar
might dream as delightfully as Layard over the foliated capi-
7
tals and ivy-clad entablatures of a Grecian ruin. There is a
sweet relish of antiquity in these studies. But, your Honor,
the Constitution, the instrument now under discussion, has
been recently interpreted differently, and that by the greatest
expounder known to governments—war.
We are told, that certain principles have been "sanc¬
tioned by the wisdom of ages." I care not if they be found
upon the top-most shelf of the Bodleian library, scorched
by the cinders of Herculaneum, or sacred with Assyrian
mud ; 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
production known as the Noodle's oration would be a mas¬
terly argument. Few men in this country, excepting certain
irredeemable fools, but are less wise in their conceit than
they were five years ago. We need not refer to consular
dates for ancient laws or dead opinions—they can be found
in the United States statutes at large passim.
Revolution, like Time, "sadly overcometh all things." A
decade hence the student of American jurisprudence may find
himself, like Sir Thomas Brown's traveler among the pyra¬
mids, inquiring of History, "who builded them, and she
mumbleth something, but what it is he heareth not."
It may be heretodox, but I am firmly of opinion that this
war has settled, and settled forever, one vital principle af¬
fecting the entire jurisprudence of the country, and which
the judiciary will be compelled to consider, namely—that
the spirit, if not the tetter of the Constitution, confers
upon Congress far greater powers than have hitherto 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 before 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
8
Congress just began to see the glimmering beacon of safety
through the midnight of rebellion. What were the evils in¬
tended to be prevented ? The reoccurrence gf similar dangers.
Men holding high trusts under the General Government-Sena¬
tors, Representatives, Commodores, Consuls, Generals,
Judges, Postmasters, Collectors, had abandoned their offices
in the hour of peril, had forsworn their allegiance, had adopt¬
ed another and a different Constitution for their supreme
taw, and had sworn to support and were supporting another
and a hostile government to the United States ; and although
acting, in a great majority of cases, from conscientious con¬
victions of duty, were necessarily, under the laws of the
United States, criminals, bad citizens, malfeasants in office
and unworthy of future confidence. Was it a time, then, for
legislative delicacies—for the technical refinements of abstract
law ? Is it astonishing that Congress should have refused
to respect the sacredness of mouldy precedents, but like the
impetuous Mirabeau, have swallowed a few formulas?
Revolutions are not generally suppressed on Lamartine
principles. It has been said by Mr. Garland, in his argu¬
ment before the Supreme Court, that the act was an act to
suppress the rebellion. On the contrary, your Honor, it is
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 Congress in the Constitution,
(Sec. VIII. Akt. 1,) *' to provide for its common defence and
general welfare of the United States." It is not a penal act,
as has been so earnestly urged; but a declaratory act, and
though retrospective in language, intended to protect the
Go vernment from future betrayal by its own officers.
But it is maintained first, that an attorney is an officer of
the Court, and not ah officer of 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 conceive
how an officer within the meaning of that word as under-
9
stood in American jurisprudence can be anything else than
a public officer. A clergyman even, whenever«he performs
any act affecting the public interest, such as solemnizing a
marriage, is a public officer—and to the full extent of all the
public privileges conferred upon him by his ordination, he is
a public officer. (Bouvier's Law Dictionary, vol. 1, 259-260.)
So of an attorney, his profession is his private property—
his license to practice that profession his commission as a
public officer—subject to certain express and implied condi¬
tions—which conditions the original grantor can enforce
either directly or indirectly. It will not be asserted, I pre¬
sume, that any man qualified by course of study for the
office of an attorney, has, ipso facto, a right to practice be¬
fore 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 Constitution
vests the judicial power of the United States in one Supreme
Court, and such inferior Courts as Congress may from time
to time ordain and establish. By the VIII section of article 1,
among the powers delegated to Congress is the power to
establish inferior Courts. In accordance with these Consti¬
tutional powers, Congress passed the Judiciary act of 1789,
by the thirty-fifth section of which the Courts are em¬
powered to admit such attorneys and counsels, as by the
rules of 1 he said Courts respectively shall be permitted to
manage and conduct causes therein.
Does not the very delegation of this power to the Courts
show that Congress held the original power itself, so far as
inferior Courts are concerned, and could place as many
conditions upon its exercise by another as it might deem
proper ?
If it could have done so then, can it not do so now ? Is
the act ot 1789 like the laws of the Medesand Persians, and
can it not be repealed at pleasure, either directly or indirectly
10
by the passage 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: " De¬
feasible perpetuity—a perpetuity defeasible by alteration of
the circumstances and reasons upon which the laws were
founded." Does not the power to create a Court include
the power to prescribe the qualifications of all officers inci¬
dental 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.r'
Under this act new Courts were established, new Judges
appointed, confirmed and qualified. One year after, on the
4th of January, 1801, Mr. Breckinridge introduced into the
Senate a resolution 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 Con¬
stitution authorizing Congress to ordain and establish infe¬
rior 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 ex¬
tending and restricting the powers of District and Circuit
Courts are too numerous for citation. Again, there are now
several bills before Congress remodelling the entire judiciary
of the United States. Even as early as 2d July, 1813,
(3 statute 21,) Congress instructed the Courts as to the prac¬
tice of attorneys. Have they not on the same principle the
power to say who shall be attorneys ? What becomes of the
vested rights of officers, the sanctity of incorporeal heredita-
11
merits, in the face of these historical facts? If 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 officers
as they may empower him to appoint ?
Does not the greater include the less, or is there some¬
thing about the intangibility of an attorney's office which
enables him to evade these legislative supervisions ? It is
conceded by Judge Trigg and Judge Busteed that if an
attorney licensed by the United States Courts 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 prescribe the age, the study and the character
of applicants for admission ? Could they not prescribe also
the loyalty of the candidate for such honors, or would thai
be infringing upon inherent prerogatives of the Court they
had themselves created ?
Does not Georgia say to the attorney of Alabama, you
shall not conduct a case before my courts unless by the laws
of Alabama a similar privilege is granted Georgians, thus
depriving him of his vested rights pro tanto, and making
him responsible for the courtesey or churlishness of a legis¬
lature over which he had no control ?
Does not the code of Georgia also say to one class of ap¬
plicants, 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 it may, you
are a lawyer " to the manor born." If Georgia can make
distinctions among attorneys for the benefit of Lumpkin,
cannot Congress exercise the same discretion " for the com¬
mon defence and general welfare of the United States
Hon. Reverdy Johnson, in his argument, while contending
12
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 Government—it is very question¬
able 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 ap¬
plies 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 property, as used
in the Constitution, which makes it applicable to an attor¬
ney'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 depend-
upon the grantee himself, frequently worthless, that can¬
not be sold," transferred, assigned, mortgaged, entailed or
inherited,can be considered property in the substantial sense
in which that word is evidently intended in the Constitution
of the United States. But admitting that an attorney's
office is a property, let us examine how it may be forfeited.
Gov. Brown asks us with the utmost solemnity and sincerity,
" what officer of the Government stands here as Judge Law's
accuser, and where are the charges and specifications ?" Be¬
fore a court martial or a military commission those inquiries
might be relevant, but this Court is neither. Again, the
Governor asks, " what, provision of the penal code has he
violated, and when and where?" What Grand Jury has
indicted him, and upon what charge? The learned gen-
13
tleman 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 persona,
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 of the promovcnt. A man sus¬
pected of crime may appear betore a Coroner's jury and
prove an alibi, or absence of criminal intent, or he may re¬
main away and take the consequences of such inferences as
the law may adduce frsun circumstantial evidence. A jury¬
man or a witness may be placed on his voir dire, and being
questioned as to his qualification or his character, may de¬
cline to answer, and be rejected for cause.
in none of these cases is an indictment, verdict or a sen¬
tence required. The principal objection 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 be
deprived of his property, in due process of law, without pro¬
ceeding criminally is too evident 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 at¬
torney, 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 of
qualification.
A man may forfeit his office not only by " treason, felony
or misdemeanor," but he may forfeit (it in a much more re¬
putable manner by non-user or abuser, or lapse,or by accept¬
ance of another office incompatible with the duties of the
former.
In none of these latter cases is an impeachment or an in¬
dictment required to enable the Court to declare the officer
functus officio. As repeated evidence has been made to
Bacon by learned counsel, it may be well to examine him
14
examine him on this point : {f It is laid down in general
that if an officer acts contrary to the nature and duty of his
office, or if he refused to act at all, that in these cases the
office is forfeited-" Bacon's Abridgement, vol. V. chap. M.
There are. says Coke, three causes of forfeiture, or seizure
of office by matter indeed: 1st, by abuser: 2d, by non-
user; 3d, refusal. In speaking of non-user, he says: "When
the office concerns the administration of justice or the com¬
monwealth, 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 ar*
annexed to officers be not observed and fulfilled, the office is
lost forever." Bacon's Abridgement, vol. V, chap. M.
Again, a fitares of C. B. 13, being absent two years, and
being out of his office from year to year without license of
the Court, was discharged by the Chief Justice ex assert so
sociorum suorum, by words spoken openly in Court; and
thoguh there was no record made of' the discharge, nor any
legal summons for him to answer, nor any legal accusation,
yet the discharge was held good. Bacon. Ibid.
In the case of Milanro vs. Thatcher, 1 Ter., Rep. SI..
Ashurst, Justice, says: In the case of two offices, I think
the acceptance of the latter does absolutely, and ipso facto.
avoid the former, although the superior office, if they are in¬
compatible. Bulier, Justice, expresses the same opinion.
Williams' Abridgement, vol. V, 550,
In the case of The King vs. Sir Trelawney, Lord Mans¬
field expressly said that if the two offices were incompatible,
the acceptance of the latter would imply a surrender of the
former.—Ibid.
Franchises may he forfeited by breach of the trust upon
which they are granted, and a perversion of the end of their
grant. So franchises may be forfeited by mis-user 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 con¬
ditions annexed to it by law. by non-user or abuser. Comyn'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 olbce if he accept another office
incompatible.
It is evident, your Honor, from these citations, that a man
may forfeit by his own act his franchise, without being pro¬
ceeded against, in personam, and without ever having been
indicted or tried and convicted of any offence. The forfei¬
ture is worked instanter by mere operation of law. And
when a man attempts to resume the functions so forfeited, it
is only necessary that the fact be brought to the notice of the
Court to enable it to take judicial cognizance of all the disa¬
bilities flowing therefrom.
It will not be denied, I presume, that to forswear one's
allegiance to the Government under whose 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 he denied that to accept another office
of any kind—such as a license to practice in the Court of a
Government hostile to the United States—is such an accept¬
ance as implies the surrender of any office he may have held
under the laws of the United States.
And this forfeiture takes effect, not from the date of any
record of investigation into the act, but from the commission
of the act itself. But we are told you must present some
evidence of the commission of the act of forfeiture, and that
you shall not pluck that evidence from the mouth of the offi¬
cer himself, for to do so is to violate that section of th.e Con¬
stitution which provides that no one in a criminal case shall
be compelled to be a witness against himself.
In the first place, I deny that the proffer of this oath can
16
by any ingenuity be tortured into a "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 otfice which he seeks.
But waiving that point for the present. I maintain that no
other proof is necessary, or by law required, to establish this
forfeiture of office, than is to be found in the public laws, the
public records and public history, of which the Court must
fake judicial notice.
That the State of Georgia was in insurrection against the
United Slates; that for four years her citizens, with all the
machinery ot her State Government, resisted with arms the
lawful authority 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 has been changed, is a con¬
clusion 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 no¬
tice, and which throws the onus probandi upon every such
resident who comes voluntarily into the United States Court
to claim a franchise from the Government.
This doctrine is distinctly and strongly laid down by Chief
Justice Chase in the case of Mrs. Alexander's cotton, 2
Wallace, 419. The Chief Justice, delivering the judgment of
the Court, says :
" The Court cannot inquire into the personal character and
disposition of individual inhabitants of enemy territory. We
must be governed by the principles of public law so often
announced from this Bench as applicable alike to civil and
international wars, that all the people of each State or dis¬
trict in insurrection against-the United States must be re¬
garded, as enemies until, by the action of the Legislature
and the Executive, or otherwise, that relation is thoroughly
lr
and permanently 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 commission from a department, who has
assumed the status of an enemy, can claim a vested right in
an 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 re¬
lieves the community or the individual from all the pains
and penalties incurred by the offence pardoned, and restores
him to the peaceful 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 of pardons or proclamations can restore property
already condemned, or revive an office terminated by opera¬
tion of Jaw or destroyed by previous forfeiture. If I am
correct in the position, that forfeiture dates from the com¬
mission 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 restore it.
The consequences of such forfeiture can only be avoided
bycreating a new office ab initio—conferring a new commis¬
sion or a new license, and Congress says these shall not be be¬
stowed upon any one who has not the essential qualification
of loyalty.
Are we to be told that when a United States Judge who
holds his office for life accepts a Judgeship under a govern¬
ment in arms against the United States he does not ipso facto
forfeit his office, but still retains a vested right therein, en¬
titling him to the privileges and emoluments thereof, and of
which he can only be deprived on conviction by impeach¬
ment ? Is it possible that all the Postmasters and United
States Marshals in insurrectionary districts whose successors
18
have not been appointed, are still holding over under their
former commissions—or have they 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 offi¬
cers, or would a new appointment be required ? What di¬
vinity is there that hedges a lawyer that he escape these disa¬
greeable results ? The truth is that there is a presumption of
law necessarily deducted from the public history of the late
rebellion—a presumption inevitable under Chief Justica
Chase's decision, that every resident attorney in an insurrec¬
tionary district has forfeited his franchise as an officer of the
United States Courts. Without the act of Congress, he could
not have resumed his position excepting by taking out a new
license. If this chain of reasoning is correct, it follows that
the act of 1865 is not a penal act, but a declaratory act of
qualification. It does not work a forfeiture of an attorney's
office, lor 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
retrospective, it cannot be an ex post facto law, for it does
not adopt any criminal procedure, and inflicts no pains or
penalty on the person.
The distiction between retrospective and ex post facto law
is ably elucidated in the case of Calder vs. Bull, by Judge
Chase, in that portion of nis opinion which Governor Brown
did not read; the purport of which opinion is, that the pro¬
hibition as to 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 Dallas, 401.
How any court can construe an act to be ex post facto which
only inquires into the character and antecedents of an appli¬
cant for office, and provides no sanction except a refusal to
confer future honors and emoluments, passes my compre¬
hension.
Neither can it be said the act is unconstitutional, in this,
19
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 possess, or work a forfeiture
ot property already forfeited ? Nor is the objection that it
violates the clause of the Constitution which provides that
every one shall have the privilege of a hearing by counsel
any more tenable. It is in reality apetitio principii, in this,
that the question is not; shall the accused have counsel ?-
but, who shall be entitled to act as counsel ? Nor does the
presentation of a Presidential pardon obviate these difficul¬
ties. It is really a plea in coufession and avoidance, and it
follows that if a man can only resumehis office by virtue of a
pardon, that without that pardon he possesses no office. It
really only requires a guarantee of future good faith.
I think I have demonstrated that no pardon can restore a
forfeited office, however much it may qualify 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 reci¬
pient in statu quo ante bellum ; to put him before the law
just where he would have been had he not committed the
offence, and yet, even then he would be required to qualify
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 requir¬
ing no pardon ; yet if this law is constitutional, certainly a
pardon which exempts a man from an obligation binding
upon another who has never offended, would confer a very
important special privilege.
In fact, the only serious argument advanced against this
act, assuming what learned counsel assert, that an Attorney,
holds property in his office, is predicated upon the assertion
that it deprives a citizen of his property without due course
20
of law. Upon this hangs every other objection. If this is
unsound the others fall for want of a major premises. It is not
penal, for it inflicts no pains and penalties on the person. U
cannot be ex post facto unless it is penal. It does not vio¬
late a constitutional provision in compelling a man to be a
witness against himself, unless it is a criminal 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 way
for the admission of counsel. A citizen is not permitted to
introduce whom he pleases as counsel ; he is only guaran¬
teed the right to introduce one licensed to practice. It can¬
not be said that it defines offeuces unknown to the constitu¬
tion ; for treason; aiding and abetting treason, felonies and
misdemeanors certainly include any offences set forth in this
act. It does not prescribe a different and greater punishment
than the constitution allowed, for surely a denial of an attor¬
ney's license (however important learned counsel may con¬
sider it) is more endurable than death, confiscation or
imprisonment.
Therefore, I maintain, 1st. That if the pro-movent's for¬
mer 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 judicial notice.
3d. That being forfeited, this motion simply is an appli¬
cation for admission under a new license.
4th. Being such an application, the act of 1865 only pre¬
scribes a qualification.
5th. That the qualification prescribed is perfectly consti¬
tutional.
There is another phase of this question to which I wish
to call attention, which, although it does not bear upon the
constitutionality of this law, has a very important bearing
upon thjs motion, and is worthy of serious consideration-
21
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 in¬
ferior 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 obliga¬
tory as a decision until recinded.
This point has been even rescently reiterated. 2 Black,
509.
The Supreme Court, on March K), 18H5, amended the
second rule by embodying therein the oath containied in this
act, and ordered that all officers of the Court shall subscribe
to the oath contained in the said act.
Now, although this order is not in terms directed to the
Interior Courts, there can be no doubt that it is in intent,
and 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 unallowable to suppose
the highest Court of the land would embody in their own
rules a law they believed or suspected of. being in violation
of the Constitution.
Much has been said about the hardship of this law. It
is a mere extravaganza to say that it deprives a man of his
profession. It only denies his privilege to exercise that pro¬
fession in the Courts of the United States unless he can sub¬
scribe to their rules.
It is hardly necessary, in conclusion, to mention the
oppressive responsibility attaching to any court that pro¬
claims a statute, passed by the highest Legislative body
known to our Government, to be in violation of the Consti¬
tution of the United States. It has been judicially conceded
from Chief Justice Marshall down to Judge—Busteed. It
must be palpably void, unquestionably repugnant to some
provision of that instrument, before even the Supreme Court
22
would be justified in pronouncing it invalid.
If there is a doubt, the Legislature of the Nation, 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 : " Darent
operant consules, net/aid republica detrimenti caperet
See to it ye Senators and Representatives, that no like harm
comes to this republic.—there is a sanctity and a sovereignty
in the edict that 110 court should treat lightly.
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