The tri-weekly news. [volume] (Winnsboro, S.C.) 1865-1876, 1866-06-05
Governor Browns Argumcnt--ConcIndcd

| OF Judge Trigg, United States District judge
for Tennessee, and Judge Busteed, holding
the same position in, Alabama, and read
/ parts of both decisions. The Court in each
case held the lawSex post tacto and void.
These DECISIONS, he said, were precisely in
point deciding the Same question now before
the Court He then procecdcd: -
| n l beg the pardon of the Court for having
taken up so much time reading authorities,
but as they are in point, and are The opinions
| OF able Judges, and as the question is On
| important one, | have relied upon the in
| diligence of the. Court These authorities
establish the points l have taken against
this law, to my mind beyond oil question ::
l. That the attorney is an officer Of
| Court; that he has property in that Office !;
and that it is for life or good behavior.
z. That this act of Congress, violates the
social compact, Magma Chartd, and the Con-
stitutiou Of the United States, by dcpriying
him of that property without due process Of
law, in this, that he is in effect convicted,
| and his property forfeited without present
ment or Indictment OF a grand jury that he
is denied q trial by jury,s that he is denied
the right to be confronted with the witness
cs against him that he is denied compulso-
ry process for obtaining witnesses in his
favor ; that he is denied the assistance of
counsel for his defence and that he is com
pellcd to be witness against himself in n
criminal case, or that his silence is constru-
ed as conclusive evidences Of guilt.
3. That the act is in the nature of bill
OF attainder, and is an usurpation by the
Legislative Department. Of the Govcrnm cnt
OF the functions assigned by the Constitu-
tion to the Judicial. Department, being n
sentence of forfeiture, pronounced by Con-
gress, which. being ajudicial and not
a n Ivn or aar ok,l IL, h. ~
Judiciary after trial and conviction
4. That the law is not and was not in
tended to be law prescribing qualifications
for office, buta penal law forfeiting his
property for the commiason of an act, which
~ the time of its commission had no such
penalty annexed by law, and that the act or
offence is punished by This law in manner
different from that prescribed by law at the
time of its commission ; and that the law is
for this reason ez post t;cto and vsid.
But suppose the doctrine to have been
fully established that gongrees has power
to forfeit the property which an attorney
has, III his office, fcr. having borne arms
against the Government, or countenanccd
those who did; andstl,st It may use test
oaths for the purpose OF sscer,aining who is
and who is not guilty, compelling each to
suffer the penalty of guilt If he refuses to
answer--rina olhor,. wcS2aI 1rawing contrary
10 oil Eule I'll suCn case h cUnUiusiro
ence OF guilt from refusal TO answer; and
rronouncing and executing judgment ac-
cordingly. How docs he case then stand?
The office ofthe attorney would be forfeited,
80 soon rs the court met and rendered the
oath, and he refused to take it. But GER
tainly not till then. Why not? Because
Congress makes the refusal to take the oath
as conclusive evidence OF guilt; or rather it
forfeits his estate because he is guilty and
makes the refusal to take the oath stand in
the place OF trial by jury, and judgment of
guilty rendered by the court Just as If
the Legislature OF Georgia should pass an
act mo matter how absurb) that when q
man is found dead in any county, every
man, woman and child in tho county, who
refuses to swear that he or she was not q
party 10 his death, shall be taken by the
sheriff and hanged, and all his or her pro-
perty shall be coniiscated. "
But now suppose before tho oath is ten
dercd to any, or any one is executed, the
pardoning power should grant full and
free pardon TO every person in the country,
could the sheriff after the pardon, with
knowledge of its existence, proceed TO hang
every enc, or TO seize the property Of any
one us forfeited |? All must admit that he
could not The pardon having been grant
Cu DclOEe JuuSmcHt UT cAcCutlOllt tcbNeS
the accused in precisely the same contiton
in which they stood before the charge was
made against them; net only with the right
to life and liberty, but to the peaccablo en-
joyment of all their property.
Now the truth is, that most of the attor-
neys of this Court have received, either
under the General Amnesty Proclamation of
the President, or upon special application,
full pardon from the President of the United
States, before any Court has been held in
the State, or the test oath has been tender,
cd to, or refused to be taken by any one.
Admit, then, that the refusal to take the
test oath stands in place of q conviction of
guilt, and IL can have no application to any
ono pardoned before trial or conviction. 1t
certainly follows, then, that the property
Of an attorney in his office which was not
forfeited prior to his pardon, cannot now be
forfeited for the offence for which, he was
hardened. In support Of this position
quote the following authorities
1t seems agreed that pardon Of tsesson
| or felony even after an attainder, so far
| clears the party from the infamy and oil