Baltimore daily commercial. [volume] (Baltimore, Md.) 1865-1867, 1865-12-23
FROM WASHINGTON.
TIE CGnsfitgEfionaiity OF the Test Oath
ArgunIietss of RnEas.sas Iolalasnn.

WASHINGTON. Dec. 22-In the Supreme Court of
the United States day, pending the parte.
A. H. Garland, Of kansas. asking to be llawed TO
practice as a counsellor Hon. Reyerdy johnson de-
yered an argument against the COnstitutonality of
the Congressional test oath. There being such
antecedcnt government own, it is necessary to
look into that instrument itself to what powers
were originally conferred upon Congress. These
being stated, Congress Is authorized to pass all
cessary and proper laws to carry them into effect.
These powers are to be so construed to effect the
object they are designed to accomplish.
It is the duty Of the Court to ascertain what this is
and then determine whether the lmpeached legsIa-
ton will defeat or secure the end. restriction to
the class of powers is that Congress shall pass no
post fdcto law or bill Of attainder The meaning cf
this is well understood to be, any law which makes
an act crime, which was not crime when the act
point of fact because it preclude the petitioner from
the exercise of a lawful occupation. and strikes at
profession in which his hopes and ambition ana snn
port of himself and family are involved. The pun
ishment Is severe cruel and uneXampled. 1t sub
jects him to all the obligations of the Constitution
while it takes from him ali its advantages.
The original act of 1862 not made applicable to
attorneys in the Courts of the United States. Three
years were suffered to elapse when some one in Con-
gresS who may have been peculiarly sensitive and
who saw danger in every man who had taken part in
the rebellion, introduced bill applying the provis-
ions of the law to practcing attorneys The bill was
submitted to the Jud ciary Committee of the Senate
and by unanimous vote was rejected. 1t afterwards
however received the sanction of the Senate 1t
passed for the purpose of excluding the petitioner
and all others similarly situated TO punish by excIu
ding them from the United States Courts.
L
to the passage of the Statute This comes within
the clear meaning Of tbs clause in the Constitution.
that Congress shall pass no eXpost faco law or bill
of attainder." No rights can be taken away by law
unless the accused shall be first convicted of the Of
fence charged and these rights include the holding Of
office of emoument and trust. Such laws as that Of
1860 were penal statutes
The Attorney General last Friday had argued that
the admission practice in the courts is not natural
right, but is created by law, and therefore may be
regulated by law and either given or taken away.
But it is not true that Congress can, by law prohibit
fia ~ ii
States. The Constitution provides that parties
charged with crime shall have the benefit of counsel
and therefore Congress has no jurisdiction over that
subject.
It is true that every court is vested by the common
law with power TO make regulations to exclude i'm
proper officers but Congress has no right to say who
shall shall not appear counsel The obligation
which is imposed Congress to create courts carries
with it an obligation on the part Of the courts to
admit counsel The safety of the citizen depends on
the existence of the provision for the admission of
counsel The preservation Of liberty demands as
shall be such body OF men IN all revolutionary
struggles and despotisms which have disgraced the
world the accused have been denied counsel. Con-
gress would convert itself into tyranny, it, while
establishing courts. it would exclude such class of
men.
to against himself while no power is given to
the Court to inquire into the facts No man, by the
Constitution is compelled to testify against himself
The petitioner with others was involved in the effort
establish their separate independence Of the autho
rity of the United States and resisted it BY eyying
passage of the act Of 1865, death mprson-
ment, but this act imposes additional penalty
that persons thus accused shall be admitted
attorneys in the United States courts. Congress, in
1862, passed law saying that whenever the Presi-
dent deemed it proper he might declare a general
amnesty while the Constitution itself confers
him the exclusive power of granting pardons and
reprieyeS.
The pardon places the recipient Of it in the posi-
ton he stood before the commission of the crime
makes him man. and divess him of all ante
cedent consequences Suppose this law of 1863 had
been made part Of the act for the punishment Of
treason and the man committing the crime bad been
pardoned would it not also have exempted him from
the punishment for the offence, and prevented him
from being excluded from practicing attorney
| in the United States Courts? The pardon covers
every part of the offence and Congress cannot after
the pardon has been granted pass a law to punish
for the offence pardoned The disgraceful fact is
presented to the world that Congress undertakes to
| interfere by denying the power of pardon con-
ferred by the Constitution exclusively the Presi
dent without limit.
Congress cannot say to the petitioner: you shall
| be tried for treason after having been pardoned "
If this true of class of crimes it true Of
| all others.
Mr. johnson quoted from various judicial opinions
forty the points of the argument presented by him
The Court holds the matter under adyisement, and
| has adjourned until Tuesday next.