The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1867-02-16
RATE OF SUBSCRIPTIONS.
RATES OF ADVERTISING.
THE NEwTEsr OATH DECISION.
The Decision of Ihs U. s. Supreme
Court NOT Mandatory. q

F" "AS64NSION, feDs Il, 1867.
" In the Supreme Court of the District
OF Columbia. in Banco, Chief Justice
Carter. for himself and associates
Wiley, Olin and Fisher, delivered the
opinion on the application of Colonel
Magruder to be admitted to its bar, and
on the motion that the rule which re-
quired subscribing to the test oath as
preliminary of admission be rescin d.
edI the Court first proceeded To consider
whether the applicant, aud others SINH
larly situated, should be admitted,
saying Colonel Magruder, in 1855, took
an oath, on being admitted to the bar
OF the Circuit Court, to support the Con-
stitution of the United States, and that
he did not owe allegiance TO the King
or Queen of Great Britain, andI that he
believed in the Christian religion. At
the inauguration of the rebellion he
transferred himself to Virginia, where
he became an officer in the rebel army.
thus binding himself to do all in his
power to destroy the Government
which he had sworn TO uphold. In ex-
tenuation of the breaking of the oath.
the applicant urged that he acted as he
did in taking up arms, because he con-
scientiously believed he owed fealty
first to his native State, and next to the
Federal Government, a kind of dual al
legiance.
This of itself would make 1t fmpossi-
BILE tor his admission to the bar of this
Court. It was an absuriity for the ap-
plicant to take the position that a State
in conflict with the United States is
greater than the latter. 1t was an hal
lucination, after four years of bloody
war, and the sacrifice of million men,
TO preserve the Union.
The Court reported that, in view of
the circumstances stated, even if the
test oath in question did not exist, it
would be impossible to grant the appli-
cation. AS TO the oath of March %.
1868, the Court entertained no doubt as
cessity. The only doubt has been
raised by the majority of the Supreme
Court of the United States deciding
against the act, in opposition to what
had been said-namely, that it was an
ex post facto law.
before this Court were different from
those before the Supreme Court of the
United States. ~.
The question was respecting the origi-
nal admission of the petitioner to the
barr one was privilege in the present,
and the other was privilege In pros
pectiVe; one was to exclude a member
from, the other to admit member to
the bar.
The opinion of the Supreme Court of
the United States was not analogous or
applicable to this case. 1t is by COM
mon law rule that the Courts shall de-
termine who may become members of
the bar. II WAS an inherent right for
them to regulate their rules of practice.
Congress had not only affirmed the
common law power, but made it the
duty of the Courts TO enforce il.
The majority of the Supreme Court
OF the United States condemned the
rules, while the minority, one only, less
than the majority counselled its sup
port-leaving the court of this dis
trict to form its own opinion; in fact
the judgment of the Supreme Court of
the United States Is reduced to the opin-
ion of the Justice.
The question was so involved in po-
litical controversy that it should be re-
ferred TO the political power of the ma
ton. 1t was a question of legislation
and not for adjudication. The motion
for admission and the resembling of the
rule was, therefore, denied.
Justice Wiley, concuIring with the
majority, read his views expressed in
his own language. The opinion of the
Supreme Court of the United States fell,
he said, far short of compelling the
Circuit Court of the District to alter its
rules He referred to the fact that Col.
Magruder had sworn to support the
Constitution OF the United States, but
had violated his oath, and if he were
now admitted TO this bar, he would be
again compelled to support the Consti-
tuition as the supreme law of the land.
Magruder, in taking up arms against
the Federal alGovernment, had declared
he acted conscientiously, and had not
repented of his act, nor changed
his mind; that he owed allegiance first
to Virginia and next to the United
States-a duul fealty. To admit him
would be a needless farce.