New-York daily tribune., 1866-01-12
DECISION OF JUDGE BUsTKKD.
The Act Of Csnsress OF January, 1855,
Presenting q Test Oath for Attorneys
Practiciug ia United States Csuris,
Pronounced uc0nsIitutional.

From The Mobile Register ard Advertiser Of Dec H. l46
UNITED STATES DISTRICT COURTS FOR ALABAMA
In the Matter of the Alleged Of certain
Act Of Congress, entitled An Act Supplementary Of al
Act entitled An Act to Prescribe an Oath Of Office ens
sLortcf and Other A5rneys Tor Leave to Practice ia
these Courts without Eir't Complying with the Require
DienSof said Statute ,"
In the above matter / have prepared an
opinion. which will now deliver.
bne Of the most difficult and. certainly, Of the
most delicate duties tLat Court OF Justice can be
called upon TO discharge to pronounce upon the con
stationnay of legislation There is that in the very
nature OF this act calculated to inspire the utmost cir
cumspeetlon. not perhaps unaccompancd by something
resembling fear II Is no light matter to attack the
SUMPTION is In favor Of their validity. The Legislature
Of people is the nation In concrete, representing ITS
wisdom and its will. The motives which influence the
conduct Of its members beyond the pale OF legal In
vesgaton and may be inquired of only in Joro con.
sena aud In this tribunal each legislator both prose-
cutcs and defends and Is witness. Juror and Judge.
One Of the fathers Of American Jurisprudence declared
that II is not slight implication and vague cOniec.
ture that the Legislature Is to be to have
transcribed its powers and its acts to be considered
void THIS is tho standard by which the Propriety Of
ljulical interference with the operation Of statute
should be determined and accept tho rule with the
profOundest reverence for the learning and wisdom OF
its author. 1t under tho direct influence Of such
sentiments that approach the consideration OF tie
question presented for adjGdcation and when take
into account the Difference that is due to the Iegisla
tive and Executive Departments of the Government
the rcal magnitude of the matter itself the interests
involved aud the Dduclty OF own cannot
rcpress the wish tina, had been spared this ordeal
To do ones whole duty In whatever sphere OF e to
do il truly as 1t respects conscience and
however all that may be required OF any To do this
is 10 keen the oath took. to administer justice with
out respect persons to do equal right to the poor and
rich. aud faithfully and impartally to discharge and
petforIn all the duties Incumbent up0n me Judge
according 10 tie best Of my ability and understanding
aerceab to the Constitution and Laws OF the United
I<Daies.
| nunein government. rests the distribution OF
power among the several bodies OF ITS magstracy. 1t
has passed into axiom that the legislative. executive
and Judicial dep ,rtments ought tn be separate aud ndc
pendent each OF the other. Mr.. Madison denominates
his separation and Independence the essential pre-
caution In 'ayor ofbcrty and declares that the accn
mutation Of these powers in tne same hands may
Justly DO pronounced the very definition OF tyranny.
Ii il not to he deGiod. either that legislative bodies
elected by and from among the people are more or less
actuated by the passions Ireudces which, for the
hour rule and govern their constitucnces To imagine
popular representatives free from such influences, is to
suppusc them moro or less than men, and to presume
thai their conduct will not be in some degree controlled
by considerations Of what Is agreeable to those upon
whose sutragcs they depend is TO fly in the face Of all
nature and experience. Ii was 10 correct this ten
dency end 10 save 10 the whole people their constu
tona rights ,ha, the system Of checks and balances
was adopted, which distinguishes the American
on human nature t,lat such devices shoaid be
necessary TO coutIUl tbe abuses OF government but
what i, government itself but the greatest Of all
reflections human na.uret III men were angels,
| 10 government would be necessary" To each of
I The Departments of the Government OF the United
States the Con ituon Thus far shalt thou 90,
and no iartter." To each is assigned limits which it
NAV not lawfully pass. Each is guardian " the pub
lie against the aggression of the other. Each, within
its sphere houored agent of the general harmony
and saiey. eud eIoh an qsurper; 90 ms'aai STEPS
beyond its eirournscribcd boundaries. Each obliged.
upon pain Of being dereet ana ersworn 10 ADOPT as
its neiio. Justice IL the end OF government The
Legislature 10 make the llva The Executive Is 10
approse them and that they carried into effect
The ciary to cxpound and administer them and
raised upOn them 10 decide whether
they ARE oonsonaHt or repngnanf 10 the Constitution
The LcgislIturc that should refuse to pass all neetn
laws Tor the regulation of the body polite would papa
bay Violate s duty. Tie Executive who should neglect
to approve aud execute constiiutlonaly enacted laws,
woui DO rndeseryng bis high office; and the Judiciary
that does not interpret pronounce and apply the laws
so made and approved Is culpablc beyond comparison
on the second day Of July. is62 the Congress OF tie
| Uned States passed an act entitled. AN act 20 pre-
scribe on oath OF Office and for other purposes" By
It's every person who after its passage, should be
elected or lppo.n,edto to enrcril. military or naya, office
under the Government before entering upon It's duties
land before being entitled t. its remancrations, IL
Obliged to take aud subscribe the following oath. or
| Affirmation:
tsy hae ss.Isi tbo ned states hlrs been
efi.eA e,eg that have yola,'.y gwen no aid eoan,e
that have neither sought scc.Pied nor
ud, afy authority pretended anhony Ia hostility to the
United sie,, have yiededa voluntary support to
%,sn VIZ the uaei states. hostile o. aic thereto
l. is important TO observe here that this qualifying
lions OF honor or profit under tho Government 1t has
no appicaton to tho community Mt lnrge. or 10 any
Particular class OF citizens Il Is directed ngalnst
In the statute for falsely affirming under IT, IS tina, the
person shall be deprived of his Office and rendered In
capable forever after of holding aLy aot or place under
tkf fuifsd Sa,s." The intention o. Congress. II we
may derive IL from the political creuulsi ances OF the
times that no person Who aided 10 the attempt 10
de.troy American nationality should again be trusted
win tho authority honored with the offices OF the
Republic. 1t was Notorious that men VINO had oeen
educated In the military ana nav SCHOOLS ., te natoa
at the public expense had Joined In and oiten led the
revolt against tie national sosereigniy and that Others
connected with the administration OF evil affairs LETT
their places in Congress and IN the Cabinet and on tho
nenef and formally renouuoed their allegiance 70 the
United states. 10 secure tho country from recur-
renee of such state oi actl, so FAR as The legislative
this was beyond question. the intention Of The law.
lmekers lsd there!s nothing in such law rcpu6nant
To reason religion or natural rights.
IL is plainly within the power OF Congress to say 10
a candidate for tie benefactons the offices Of the
Republic "You must a. a condition precedent to en-
loving these Furnish the guarantee Of an oah that yon
Layc not done and viii not do any net inconsistent
with Ao honor OF the Government that VIII endan.
ger iis peiIeiuty" No man has an ncLoato or vested
Iisbt IN these, and places OF honor ana eino'uncnt
should be tho rewards OF ca3aciy' pa'iio'''h anu
On tie 9th day Of January 1906 Congress passed an
act ~ these words; ,,,
al be- stmii,ed to he bar OF supreme Courtof the
United ,tates or At any tine after tho ii OF March next
the United States of the Court Of Cfns ns an Attorney
81 Cornsrl9 suc CouIt sa BE- allowed TO appear and
lie heard IN any such Court by Of any preyou. adni'
Jon OF any special power OF attorney unless he shall M
lave and subscribed tho oah pfe'crbed IN AZ act Pre-.
,rbr IN m Of oirce Gni for other purpo.os approved JAY
sccordgto the forms and In the manner IN srii a,'
pr0.1ded: which sid oaih 80 taken AMI subscribed.
a Le rrr.ergel among tie files OF such court, aud any
per,on who sha fsey take the sti oath sa be guilty o,
riv md on ronvlcon, she'll be liable 70 the palms and
rs Il pc6ury and lie additional pains and penalties IN
The said ac, pgosidei , -
III, eliimcd that this act contraycnes several pro-
visions of tic fundamental law and the power Of the