Evening star. [volume] (Washington, D.C.) 1854-1972, 1867-02-12
the TEST OATH CASE. o..
I he motion to Rescind the II ule OVER nj ed


TINS morning Chief Justice Cartier, in the
District Supreme Court in General Term, de-
livered he following opin ion OF the Court in
the case of or purte Allen b. Msgruder and
others, in which motion was made TO rescind
the rnle providing that attorneys on admission
10 the bar should subscribe TO what Is known
As the test oath, and argued by Messrs. N agru-
der and j. ii. Bradley 10 favor Of the motion
and NsssIs- Enoch Iotteu and w a Cool in
opposition to the motion =
Tbs rs motion on the Application OF Mr.
ALIEN Is. magruder, and others, for admission
10 he Bar OF this Court, connected with a mo-
ton 10 reselnd the Rule which provides that
each applicant for admission to Bar shall
oeiore being admitted, take and subscribe the
following oath:
Il, -, do sclemnly - that I have
never voluntarily borne arms against the
lnlted States since have been a CITIZEN there
OF mat have voluntarily given no aid coun
tsHance. counsel, or announcement 10 person.
engaged IN armed hostility thereto; that have
heIther sought, BoT accepted, nor attem pted to
exercise the functions OF any office Whlteyer,
under any authoriiy, or pretended authority
IN hostility TO the United States: thar baye
not yielded voluntary support to any pre-
tended Government authority, power or Con-
sttuuCn within the United States hostile or
IHIIsieal thereto. AndI do further that. TO
the best of my knowledge and ability / will
,,uIpoit ana defend the Constitution of the
'nlted States against all enemies. foreign and
domestic that will bear true faith and ALE
gldnce 10 the same: that take this obligation
lIetIy, without any mental reservation or pur-
pose 81 evasion, aid that will well and faith
IUlIy discharge the duties OF the office on which
am about 10 enter: so help me God Sworn
10 ana subscribed before me this - day of
The consideration OF the subject in the order
OF the application suggests the inquiry whether
the applicant is eligible TO admIssio irre-
speCtlye of the oath. His history in this con.
nectl on. as rendered by HIMSELF makes him a
citizen of the District of Columbia immeii
ately antecedent 10 the outbreak of the bel
lion, and member of the bar of the former
CIRCUIT court. ana such Attorney ha
obligation OF the folio wing oath, which he took
and subscribed ON the l2rh of December 1857:
Il do sotemniy swear that l will support
the Constitution of the nited States: .bai do
not hold myself in allegiance To the KING or
Queen OF Great Britain; and that will well
and truly behave and deneau myssIf in tha
ONCE or attorney of this court in ALI things
aTpeTtaInlng to the daties thereof 10 the bast
OF my skill ana Judgment 80 help me God.
Telgionr'
1t also appears, from his own statement. that
abO0t the time OF the inauguration of the
rebellion, and before the secession of Virginia
De transferred himself from this Jurisdiction
10 that State, where he became an officer in the
rebel army, doubtless, as such, binding MIN
this Government.
The reason he assigns for the violation Of his
oaih 10 support the Constitution of the IJnitad
States, as an attorney of the formar Cirrui,
Court, as we understand him. is that he was a
naive OF Virginia, and owed to Virginia a mar
amount realty The mere statement of his ca So
gwen bl ulms+ll, WOuIQ seem maka N
impossible Tor any Federal court TO fncorporate
him among ats officers
Ihe assumption OF State sovereignty and the
paramount duly OF the citizen TO the State
Is OIo, as pretense in justification for resis-
lance 10 Federal authority, hay wing been chiefly
used as 4 means 10 that end: but as an honast
CONVECTION OF intelligent Judgment il has been
entertained by but few. Tine proposifion that
part Is greater than the whole and that tbe
Government OF the United States ONLY existad
a me Will OF one OF its members, is IN capabIe
I'll rhat -.
ment of the DnIteo States never existed or II
II had existence bad not vitality for self-preser-
NatLon. The Sc ratification OF the applicant
Ior admission Is made more significant il posi-
Die oy bis Discrimination and failure to say taa
IN taking the oath to support the Con sttutien of
tLe Chiteo States In contemplation Of admis-
elon 10 The bar OF this Court. he would regard IL
ss olDoIng him and his conscience in para
mount duty 20 this Government The essen
HaI aosurdlty OF The position that q State in
CONNECT with the Federal power is greater
than the nation, and duty 10 the State greater
than DUTY TO the nation, which was put forth
prlor 10 the rebellion chiefly as a spec ulative
means 10 the destruction of the Federal Gov
eminent, seems still TO affiict him. notwtth.
standing u has been pers u AIDED and whipped
out OF nearly every body else or similar haiiucI.
nation by Hye years of bloody war, and the
sacriflce OF about million OF men. II will be
perceived from this view of has case that il the
oath in question did not exist it would sun be
admission to this bar.
This leads Us TO the consideration of the mo-
ton 70 rescind the FIRST rule OF this court,
adopted March %, 1859, in order that the sew
eral parties named in the motion may be ad-
mttted as members OF the bar without first
taxing the oath prescribed by that rule.
We understand the motion to be based sub
stanually upon the assumption that the oath
Is uncoEsututiOnal that its uncon silt tn tonality
has been determined by the Supreme Court,
and that that deFrmina alton Is manda tory upon
TIE judgment of this court; that II ia unconst,-
tuilOnal because IL u ez post f1eto and in the
nature OF penalty IL Is a fundamental rule
ma, rn., 70 su,norze court to pronoonce law
De clear, and ats violation OF the Constitution
unenoarrassed by doubt Difference to the de-
Inot I'D I au ana Judgment Of the lawmaking
and CO. ordinate branch of the Government not
only recommends this rule, but makes A. inn.
peTatye- tip 10 the time Of the pu blicatien of
.ne rees si opinion OF the majority OF the SUI
Preme Court THIS court, from the time of the
adoption OF the rule, has entertained NO doubt
OF ITS consttutionalIty, or OF its propriety and
necessity. The only doubt now existing in
TINS regard has been raised by the expression
OF the opinion OF tbs majority of that Court
It's said u be ez post fGcto an d in the nature
81 penalty: Let us inquire; The penalty
ior Whst aeti law after what act Does
u propose 10 IDfiIct an additional penalty for
the treason coM itted, or simply 10 leave the
traitor where the treason left HMM the en-
Joyment of all the ordinary and natural estate
Of the citizsni The post facto penalty con-
templated by law 10 new penalty prescribed
icr previous crimes-a new punish ment for
an old transgressioB. Does this rule do that I
II u does, II lie BY withholding privilege that
the parry never had. and thai does NO. pertain
TO the estate OF ordinary citizenship. The fact
IN he premises winch IL IL objected is es post
fIco, Is the once of attorney with its priv.
Il rs and INN nnitiss as n member OF this bar
a lac which the party never had, and is no "
Tor the first time seeking. The condition 10 the
enjoyment Of the once complained of here
instead of being offer the fact, prscedes it. and
ls realIy complained Of as An obstacle TO H.
The oath, instead OF being a penalty, is simply
among the evidences of fitness for the enjoy
msnt of the estate In prospect, HIGH, among
other tests, this court has seen n TO irupose
for the protection of the morale Of the bar and
the integrity OF The Government '|s-
This view OF the nature and constitutions
character OF his rule IL su a emily satisfactory
10 our mind without the aid even OF the ac-
khowledged constitutional power Of Con gress
10 make retroactive laws. r..-- = =
II ~ III necessary 10 discuss in the lieht of
this argument the effect of the pardon, mas
much as It Is not part of the OH CO of pardon
TO create In crnaInal nev rights dIsconnect-
ed with his crime, and which ne did not be.
lore possess. '-H- ~ - =
But IL is In sIsuPd that the nr constitution
of this rule has beeR determined by the Su.
Prsme COurl, which determination is mapda-