The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1867-01-15
Dissenting Opinion.

Associate Justice Miller delivered the dissenting Cpl.
MON in the above cases II hoped the effect Of the
circumstances under which the law passed would
cease in order that the statute might be repealed
or modified All good men looked for the return Of
better feelings between all sections when the
for the law would exist; but the question pre-
sented involved the exclusion from Offices Of public
trust Of those who engaged to destroy the government
by force. This could fail to be OF profound
interest It always delicate say Congress exercises
power not conded to it In their action members Of
Congress- are as much bound by oath to support the
constitution tho Judges Of the Court. The
constitution makes ample provision for courts Of justice
to administer the laws and protect the rights Of the c
zens. Article three, section one, Of the constitu
ton says the judicial power Of the United States
shall be vested in one Supreme Court, nc.
Power is vested in the Congress 70 FIX the number Of
judges Of the Supreme Court FIX their saaes provide
for all necessary officers such marshas and prose.
cutting attorneys, commissioners jurors and bailis By
the act Of 1850, commonly called the judiciary act II s
enacted that parties may appear and manage their
causes personally or according to the rules II is be-
lieSed there civilized society In the world where
there are not attorneys or practitioners At law. The
enactment which has just been cited recognizes the
utility OF this class Of men, They essential TO the
working OF the court as are marshas shers and other
bar tho practice is privilege on such conditions as tho
law making power may prescribe II IS privilege, and
not m exclusive right Every State in the Union, and
every civilized government earth, have laws by
which the right TO practice depends upon professional
skill and good moral character The continuance Of
right made by law the continuance OF these qualities
Attorneys often deprived Of the privilege when is
discovered they are Of bad moral character This Is
the expression Of public w Attorneys are subject TO
legislation the same Judges Congress has the power
to prescribe the qualifications of and prescribe
oehs Tho act lust declared unconstitutional nothing
more than law that attorneys shall take the same oath
as other officers in civil military life This looks
tncr past enu future conduct and all has reference TO
their overthrow OF the government They required
to answer that they guilty. Of treason IN past
anu will give their allegiance tho government the
future. That true and loyal attachment the govern.
menr Is made the qualification of seems 10
plain History shows members the legal profession
| arc powerful in the government, they the
| moIders OF public sentiment and they aid in the
obstruction and enforcement Of tho law and from
among them Judges selected To suffer reasonable
sentiments unchecked j. let the poisoned
at tho source Il all the attorneys the past had
dered faithful allegiance to the should
have been spared the horrors Of the rebellion II this
qualification If so essential 10 lawyer IL cannot be
denied that the law was intended that position
The majority Of the court however do no, base their
decision on mere absence of authority laws
on the subject under consideration but that the
constitution prohibits the enactment OF such laws both
byongress and the states that the present Law the
nature Of Az - rot facta law, and that the pro-
1 visions Of the Missouri constitution In conflict
\ with the constitution for the reason and
are therefore void. First in regard to bills OF
atainder We must 70 bills OF attainder passed
ny the brsh Parliament, 10 enable to arrive At
conclusion as 10 what was intended to be prohibited by
the corruption Of the blood OF the criminal capally
| condemned which takes place by the common Law on
receive or eve by inheritance This ataint or cor
rnon OF blood continued TO be the law Of England at
Inc time our constitution was formed and NAV be the
law on condemnation OF treason this day Bills acts
OF stfandcr declared persons attained blood
rnpied 80 as 20 lose hertable Qualities Section second
OF the constitution declares the Congress- shall have
power to declare the punishment Of treason at
tander Of treason shall work Of blood for
.eture except during the life Of the person at,anted
| He then explained at some length bis views
on this section showing that the trainers Of const
ing the passage Of or post jaro laws and bs Of attain
der with the exception which the constitution provided
rcmaned to be seen whether the law Of Congress and
the Missouri constitution brought within this class
Of BILLS II not claimed that tho works corruption
OF blood Therefore It Is not bill OF aainder; did
he see that contains conviction Of any designated
soma II 10 true that acts passed In Great Britain
against persons whose names unknown, but the
laws leave nothing but the Of the persons TO be
made out, and to prove their association with the
crime committed II not no IL would be b,rcm
len and punishment could be visited only by proof
OF the guilt No person vas polluted out nv the act Of
Congress either by name or description II Ia said that
the Law was made 70 apply to those engaged in the
beon but this is mistake. II is applicable TO ALL
The act does not declare coniscation does pro-
nounce sentence or n1ict any punishment II leaves
tho party himself 70 determine the act OF guilt
nounce and pronounce his sentence innocence
u dssignstes no name guilt and p5pnounccs
seDse be called bill Of attander As to being
post fdcto law and penal statute will be agreed u
cecdngs which affect private rights respectively Cases
were cited in support OF the argument and the
ment was continued TO show that the iaw imposed
mere oath OF Office. There nothing on its face TO
show M imposed additional punishment for any other
act He maintained that the purpose Of Congress
10 require loyalty az condition to practice in the
courts and not ne the majority maintain, punishment
for past offences. The President cannot BY pardon
otherwise dispense with the law The man guilty Of
countercting may he saved by the President from the
raows but lawyer cannot by him be readmitted 70
this bar II remains for the legislative power say TO
what extent relief shall be extended
As 20 the opinion in the Of Cummins pronounced
today Judge Miller quoted Justice story who said the
whole power to religion is eft 10 the States to be
acted on IN their own Judgment; and In opposition 70
the views OF the majority Of the Court quoted an ord
nance OF the First municipality OF New Orleans which
imposed penalty the priest Of the Obituary chapel
for performing service In the Church OF S. Augustine
The priest relied the constitution OF the United States
70 protect him. but the Court replied the constitution
makes provision 10 protect citizens OF State In their
religious liberties. That left 10 the state laws
and the case OF Pomeli was dismissed for the
want Of jurisdiction. The constitution OF Missouri
certain classes shall not their functions
unless they show their loyalty. This the majority holds
70 be unconstitutional because the constitution forbds
H. In this discussion he Justice Miller had said nothing
Of the great evils inflicted the country by the rebel
lion, nor Of the consequent hardshps much more
than any law. He had merely endeavored TO show
what the law u.s. and Chief Justice Chase and Associate