New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1867-02-13
THE TEST OATH.

Col Magruder to be admitted to It's par ana on 'no
motion that the rule hich requires subscribing to
the Test-Oath as a preliminary OF admission, DO It.
scinded:
In the supre,ne Court of the District Of Columbia, jan
uary Term IsG7-This is motion, on the application Of
Mr. Allen B. Maruder and others, for admission to the
bar connected with a motion to rescDd the rule which
proydes that each applicant for admission 10 the bar
shall before being admitted, take and subscribe the
following oath:
-, DO scsmny = hat have never .aurtAry borne
sans against United states since have citizen hereof that
IhSye voluntarily gwen no aid ~eusrtt COUNSEL encoungmep
persons engaged IN hostility ,ttrse have neither opih
nor accepted e attempted to exercise the functions Of any enc ~nt
United Sises That Savy not Welded Voluntary support 70 any pre-
States ECss io@5 20 tss gS.'A S S' faTS hat
on OF and ability T support anu GPS t SS hat
vii faith and allegiance 70 the s~me That take ihs oohta
hat vii wei and y discharge the dut u the Office which
swsm to subscribed before me, this - day Of, l6-
The consideration Of the subject in the order of the OPP
pcatiOn suggests The inquiry whether the applicant Is
eligible TO admission Irrespective OF the oa}9 s HSry
citizen Of the District Of Columbia mmeulatey ante.
the bar of the former Circuit Court and as such attorney
under the obligation Of the following oath which he took
and subscribed on the 18th OF December, 1889:
90 s9ie9nS s% ear nSs WI! g % NV K V Oven
the Office 81 Attorney this Cout in all things Aertang 10 t deS
declare tSss believe in the Christian religion.
time Of the inauguration of the Rebellion and before me
Secession of Virginia ne transferred himself nom thS
jurisdiction To that state where he became an OFFICER IN
Tho Rebel army doubtless such binding himself under
oath, TO do all in his power to destroy TINS Government
pot the Constitution Of the United States attorney
Of che former Circuit Court as understand him. that
| a paramount fealty. The mere statement ol
! his case, as given by himself would seem 10
of safe soycirntT and the paramount duty Of the c
/ 10
resistance 20 Federal authority having been emery useu
as means 20 that end but as honest conviction of
intelligent Judgment il has been entertained by buff
The proposition that part Is greater tan the whoc ah
that the Government OF the United States only existed az
the will ofOne of its members is incapable Of belief, and
simply argues that the Government of the United states
never existed, or had existence mad H3i vitality LOT
seprcservation. The disqualification Of the applicant
for admission has made more significant, possible by
| his dissemination and failure 10 say that III
| taking the oath to support the Constitution
OF the United states, in contemplation OF admission
binding on him and his conscience IN paramount duty to
this Government The essential absurdy of the position
that state conflict with the Federal power greater
than the nation and duty TO the state greater than duty
chiefly as speculative means TO the destruction of the
Federal Government seems stlH 70 affAct h hOtWl.h-
6oo3v war and the sacrifice OF about a million Of men.
II will be perceived from this view Of his case That II the
t6e Cont 10 give the applicant admission to tins bar
This leads us TO the consideration Of the motion 20 rescnd
| the First Rule Of tins Court, adopted March -
! 1893 IN order that the several parties named in
the motion may be admitted members of the bar OF
tins Court without first taking the oath prescribed by
tally upon the assumption that the oath is unconstitu
tioua that its uncOustitutOnaity has neen determined
by the Supreme Court ana that ihat iri ~ -
mandatory upon the Judgment OF ms court ihat II j
unconstitutional because IL is G post taco and IN the ma
trc OF penalty. Il Is fundamental rule that 10 au-
thorize court TO pronounce law unconstitutional he
Constitution unembaTassed by doubt Difference 20 the
deliberations and Judgment " the lawmaAhR ana co
t th ,,a Of the pnbication Of the recent opinion
tho DTifv Of
the time Of the adoption Of the rule, has entertained
me- GSSty u The only doubt now existing IN tbs regard
has been raised 10y the expression OF the olon OF the
majority of that Court II is said TO be J pot Jco and
III the nature Of penalty. Let us inquire. The penalty
for what aci law after what act Does propose to
or simply to leave the traitor where the him.
in the enjoyment OF all the ordinary ana natural estate
of the czeni The et post JGeto penalty contemplated
by law a penalty prescribed for previous crime
do hiatt II does it is by Withholding privilege that
the party had. and that does not pertain 20 the
When Il is objected Is cI posi- rco is the office Of ator
ney,with its privileges and mmunities member Of
a sh O ia now 1A't or T' the first ' time seeking
The conSton 70 the eniovment Of the office comraned
Of here instead being after the fact proceeds IL, ana
really complained Of as an obstacle TO IT. The oath
Of fitness for the enjoyment Of the estate In prospect
which, among other tests this Court has seen MT 20 i'm
pose for the protection Of the morale OF the Bar and the
integrity Of the Government This view Of the nature
and constitutional character Of This rule Is sutficeny
satisfactory TO our mind without TIE AID even 81 The
acknowledged constitutional power Of Congress 10 make
| 10
light Of THIS argument the erect of me pardon masnnch
ar not part Of the office Of a pardon
me and RsT he did H not before Po But t
sisted that the unconsttutOnay Of this rule has been
is mandatory upon this Court In ascertanng what the
Supreme Court has determined the first guide TO Judg
nent Is the consideration Of the that the Supreme
Court had before them II the case before them defines
the limits OF their opinion thSt Court has not decided the
was The case OF an existing member Of their bar The
case before the Of the application Of parties for
| Supreme
! was privilege IN possession the case before
Court involved disnemberment from the Bar tie de
csOn here involves admission to the Bar II may be said
Of the IN the Supreme Court that the pardon Of the
President far the legal disabilities Of Garland
concerned, removed them II cannot be said that SINH
lar pardon in the cases before US would create the prT
kge. II the law, expounded by majority of the su.
sme Court simply an exposition Of the case they had
may be wen questioned whether it would De authority
byOnd The limits Of the legitimate issue presented Out
as the expression Of opinion Of eminent Judges. The
cedmg the decision Of the Supreme Court 70 be IN point,
whether is mandatory upon the judgment Of this Court
Isqeston TO be determined by the legal relation OF
the tribunal 10 that. 10 make their decision mandatory
upon judgment Of this Court IN the strict definition Of
upon deliberations CouIt. The only power
they possess in this behalf given by act Of Congress,
and regulated by the right 81 appeal, and cOnfessedy
does not extend to the subject under consideration. II
there was any doubt rpOn This point that doubt mas been
removed by the repeated decisions OF that eminent tIbu
nal In eI Pqrie Burr, 9th Wheaton, 629, CnefJustlce
IGus and the Of bic Whole hie is
The night 70 exercise ought not 70 he lightly pnG0lsy
taken rom him. On tne other hand II extremely desirable that ne
Ttpectaiy Of should maintained and rs
with tie Bench should be For these objects controlling
power discretion reside Ia the Court Th
ought % be exercised with great moderation and judgment bat
be exercised and tribunal decide q removal from the
Bar with me SANE ns Of Information as NE Court Itself there be-
tribunal controlling authority
vii always feel The oehaey Of posbg its authority
! only n plain
In parte John l. Tnghast, 4th Pet lOs, the Court
! sad:
,wAg tnne msrdarus was applied for restore
Nj ngsI % Tie roll o counselor 10 the Distinct Ills
refused interfere with the matter. considering tie
| their cogu.k4uCe'