The tri-weekly news. [volume] (Winnsboro, S.C.) 1865-1876, 1866-06-02
OvcFnOr Browns ArgumCnt--COn

| In support OF the position that q statute
prescribing q test oath, which deprves q
citizen of his right to hold office penal enc,
refer your Homer TO the case of Leigh ,
| Munford's Va. Reps; and the case of Dor.
| sy I, Porter's Ala. Reps. Each Of these
States had passed stringent aots against
duellihg, and had prescribed an oath to be
taken in Virginia by all officers Of the State
Government ;kand in Alabama by all State
| officers and practicing attorneys, that each
had not before engaged in duel and would
never engage in one, while he remained in
| the office. In each case the applicant NOV
ed to be admitted to the Bar of The Supreme
Court without, taking the oath and in each
case the Court sustained the motion. The
| decisions are lengthy, but as they are very
aolc / shall not apologize for reading por-
tious of each to your Honor. And upon the
point to which last referred: invite the
attention Of the Court especially to the
following language of-kthe Judges. In
was greatly distinguished for his ability.
says: However laudible the object of the
not to suppress duelling may be, ii is still n
highly penal law and must be construed
strictly, 1t is unusually penal if not
tyraunical, in compelling a person to stipu-
iate upon oath, by the 81 section, not only
in relation to his past conduct and present
| resolution, but also for the future state Of
his mind. Thus promising that this act is
highly and unusually penal, will, under
the influences of the rules for constituting
penal statutes, proceed 10 apply it TO the
case before us. nT
Judge Fleming in the same case says:
The act under consideration being q COM
pulsory law (howeyer salutary il may bc)
imposing on The officers of the Government
a,, al, ,,,,I,~ ~ H. r. 4.
State, or of the United States; though there
be no pecuniary penalty inflicted on those
who refuse 10 take the oath therein pre-
scribed: L cannot but consider it rs penal
statute, and rs such must give it q strict
Interpretation. Again he says: Admitting
that attorneys ARE oomprehehded in the act,
II hos or ought 70 have asprospective and
not a retrospective operation, and cannot
affect officers of any description appointed
to office prior to the passage Of the act. In
Dorsey's case, Porter, 366, Judge Goldth-
waite says: have omitted my argument
10 show that disqualification from Office or
from the pnrsuit of ~ lawsssi ayocal ion is q
I puhislment-that it is go VI too evident to
require any illustrations; indeed it may be
! questioned whether any ingenuity could
devise any penalty which would operate
more forcibly on society. Again he says {:
the State he is entitled to aspire to any
office, or pursue any other nvooation which
any other citizen can. Yet when he is
about to enter in the Office, or avocation,
he is required to swear 10 his innocence Of
particular crime; it then becomes evident
Tint if he cannot truly take the oath requir-
ed, he is excluded. Can it be doubted that
for oil the purposes of The disqualifoatio
the guilt of the individual is ascertained?
In what does it differ from general enact
ment that n candidate for office shall be
required TO prove and establish his innocence
Of u specified cirme. Admitting person to
be guilty, he is neither accused, tried or
convicted be any tribunal known to the
laws yet He is punished with unerring GER
tain.y, and the utmost celebrity; his con-
science ID made his sole accuser and judge !;
his punishment commences with the com.
mission of the crime. and terminates only
! when he eeases to exist he is excluded
from the sympathy of his peers--no legal
doubt can intervene 10 produce his acqut-
tal-an error of his judgment involves his
soul in the awful guilt Of perjury, or punish
es him without guilt. I have no hesitation
In declaring that this act provides mede of
ascertaining and furnishing guilt which is
not only unwarranied the Constitution.
| but iB also in direct contravention Of seve-
raj "f the most important provisions of the
declaration of rights, by which the liberties
and privileges Of the citizens are guarded.
y When once it is admitted or
proved that chizen has right to aspire
TO Office or to pursue any lawiul ayocation,
| it seems to me impossible that he oan be
legally deprived Of that right by . punish
| meht for an offence committed without o.
trial by jury and can perceive no sound
distinction between law which deprives
one Of his right without q trial, and that
which asoertains and Furnishes his guilt by
an illegal mode Of trial. Hs then refers to
the Go, ernor's right to grant pardons, and
| says: We cannot presume that the General
Assembly intended by this aot, il constitu-
| tional, imposes O. penalty which cannot be
| remilted, and inficts q punishment beyond
| the reach of Executive clemency. ,'9
In the same cnso, Judge 0smond says,
page $40:
IL This, is n highly penal law; 10 Includes,
unless it's terms are complied with, oil per"
] sons from pvacticipg as attorneys and con-
sellors at law in tho Courts ef The State. 1t
1 :.