The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1866-05-02

ESI1As II cMSDRNlNO
The lawyers Test Oath Declared tt
be Constitutional by Hon. PhiliI
Fraser, United States Judge for thu
Northern District of Florida.
From. ths Jdcksonviue (Fza) Times AprIt 1d
DISTRICT COURT OF THE UNITED STATE
FOR THE NORTHERN DISTRICT OF
| FLORIDA.
[Opinion Of the cotsrt.]
- ST. AUGUSTINE, March 26th, 1856.
In the matter of the motion of John r
!SdMderson, thathe De admitted to prae
tice as an attorney, &C., Of this court
The applicant admits that, from the
commencement of the rebellion, In
| 1861, to the surrender of the Rebel
forces under Robert E. Lee, in 1865, in
the month of April, he was engaged in
giving aid, counsel and encouragement
| to persons engaged in armed hostility
| to the Government of the United States
and did hold office and exercise the
functions of an officer under an au-
| thority in hostility to the United States
and did yield a voluntary support to a
Government hostile and tnimical
thereto.
he also states that he has received a
special pardon from the President OF
the United States, dated October 2l, "A.
D. 1865, which he produces in court, and
that he has accepted the same, and in
good faith complied with the conditions
therein expressed. He moves the court
to admit him as au attorney without
recurring him to take the oath pre-
scribed by the act of Congress aPprov-
ed July q, 1862, entitled an act to pre-
scribe an oath of office and for other
purposes, and made applicable to at
Frf hn
States by the act approved January the
24th, 1866, upon the ground that the
said acts contrhvene the provisions OF
the Constitution of the United States,
and are therefore void. .1.l5.
The intention of the Legislature in
enacting these laws evidently was:
FirstsTo exclude all disloyal per-
sons from holding offices under the
Government. - 5sa
Secondly-To exclude all disloyal per-
sons from practising as attorneys ana
counsellors in the courts of the United
States. Could these ends be accom-
plished, it was believed the general
welfare and safety of the Government
would be promoted, and the 1ntroduc-
tion of an element into the very vitals
of the body polite prevented, which
had hitherto shown itself capable of do
ing infinite mischief and threatening
the very existence of the Government
itself.
In order to effect these results with
more certainty, the form OF an oath
was prescribed to be taken and sub
scribed by every person elected or APP
pointed to any office of honor or profit
under the Government of the United
States. This was the act approved July
2, 1862. The provisions of this act were
made applicable to attorneys and coun-
sellors of the courts of the United
s1dT
thereto by the act of Congress approved
January "a, 1865. By this act the attor-
ney or applicant was required to swear
that he hud never voluntarily borne
arms against the United States since he
had been a citizen thereof. That he
had voluntarily given no aid, counten-
ance, counsel or encouragement to per-
sons engaged in armed hostility there
to. That he he had neither sought nor
accepted, nor attempted to exercise the
functions of any office whatever under
any authority or pretended authority
in hostility to the United States. Had
he been guilty of any OF the acts emu
merated in said oath, he could not take
it. He could not be admitted to the
bar of any courto of the United States,
or be allowed to appear by virtue OF
any previous admission, and his dis
ability mightariSe not alone from acts
committed after the passage of the act,
but at any time since heiwas u citizen OF
the United States. asE ..4.-.,.
1t is alleged in theargument that this
law provides an additional penalty for
treason, and renders that crime pun
ishable in a manner in which it was not
punishable when it was committed. 1t
may be we'll, perhaps, to test this act In
the crucible of the law in order to de-
termine in what sense it is n penal
statute.
Penal statutes are those which infiict
a penalty for the violation of some oi
their provisions.
The penalties inflicted by the act oil
January 24, 1865. are so inflicted for
taking the oath prescribed by that act
falsely, and not for having committed
the crime of treason or for having given
aid and conntenance to the rebellion,
The oath itselfis not penalty, be-
cause it is not compulsory, but entirely
voluntary, as has been we'll said by the
learned counsel for the Government.
1t cannot be enforced by law. 1t can
not be inflicted by the sentence of any
court. No one can be forced to take II
us a punishment. 1t is simply pre-
scribed as evidence to the court of the
fitness and qualification OF the appli-
cant for admission as Il member OF the
bar. 1t is rule of court esta blfshed by
Congress, the very power which created
the court and prescribed its jurisdtc-
ton, and may rfghtfully prescribe rules
for its government. 1t does not, there
| fore, come within the definition of an
eI post Jdcto law.
The mere fact that any person has,
by his own act, put himself in posi-
ton which disqualities him as an at
torney, is certainly no argument to
prove that this court could not protect
| its own purity and dignity by eXclud-
ing him from its bar.
| The-p is inherent in the court to
deny to ali persons of immoral churac-
ter admission to its bar, to expel any
member whom 1t shall appear has be-
come so, and upon application for ad-
mission may require the applicant Ia
give satisfactory evidence OF his proper
qualification. This may be done by
witnesses, and if permitted, see nc
reason whyit may not be done by the
oath Of the applicant himself.
What the court might have done by
it's rules, Congress, which created the
court, may certainly do by prescribing
The power vested in Congress by the
Constitution to constitute tribunals
inferior to the Supreme Court to pro-
| vide for the common defence and gen.
eral welfare of the United States, and
to make all laws which shall be neces.
sary and proper for carrying into exc
| cutfun those powers, and all other pow
ers vested by the Constitution in the
tGovernmenb of the United States, or in
any department or officer thereof,
would seem to authorize the conclusion
that Congress has the constitutional
riEhtto provide for the common defence
and general welfare by enacting such
laws as shall exclude from places OF
T1nwoV. houOF fCis trilSt under Ihe Gov