Delaware State journal and statesman., 1867-02-15
THE TnsT oXTH CASE.

On Tuesday in the Supreme Court Of the
District of Columbia, in banc, Chief Justice
Carter, for himself, and associates Wiley,
DIN and Fisher, delivered the opinion on
the application OF Colonel Magruder to be
admitted to it's bar, and on the motion that
the rule which requires a subscribing to the
test oath as preliminary admission be re-
scinded.
The Court first proceeded to consider
whether the applicant, and others similarly
situated should be admitted, saying that
Colonel Magruder, in 1868, took an oath, on
being admitted IL the bar Of the Circuit
Court, to support the Constitution of the
United States, and that he did not owe allie
glance to the King or Queen ofGreat Britain
and that he believed In tho Christian re-
ligion.
At the Inauguration of the rebellion he
transferred himself 10 Virginia, where he
became an officer in the rebel army, thus
binding himself TO do all in his power to de-
stroy the government which he had sworn
| 10 uphold In extenuation of the breaking
of the oath, the applicant urged that he act
ed as he did in taking up arms because he
conscientiously believed that he owed tealty
first to his native State, and next to the
Federal governmental kind of dual allegi-
ance. This, of itself, would make 1t impossi-
BILE tor his admission 10 the Bar of the Court.
1t was an absurdity for the applicant to take
the position that State in conflict with the
United States is greater than the latter. II
was a hallucination, after four years of bloody
war and the sacrifice Of a million of men Ia
preserve the Union. The Court repeated
that, In view of the circumstances stated
then, if the test oath in question did no
! exist, IL would be impossible to grant thu
application.
As to the oath of March Esd, 1869, THU
Court entertained no doubt Of its constitu
tionalty, propriety or necessity. The onll
: doubt has been caused by the majority o
the Supreme Court of the United States de
Gliding against it. But in opposition to wha
. had been said, namely, that 1t was an ca poi
facto law, and that the opinion OF the Cour
7 was mandatory, Judge Carter said the CUES
lions before that and this Court were diitel
= ent. In the case before the Supreme Cour
{ of the United States the question was as I
L an existing member of the bar, but tn
y case before this Court the question was q
to the original admission to the bar. On
8 case was privilege in the present, the othe
privilege in prospective. One was to e.
) clude member from the bar, the other
y admit member to the bars The opinion
~ the Supreme Court of the United States We
not analogous or applicable TO this case
= is common law rule that the courts sha
d. determine who may become members of III
" bar. II was an inherent right for them
= regulate their rules of practice. Congre
y had not only affirmed the common la
!; power, but made It the duty OF the courts
~ ~ enforce it. The majority of the Supren
is Court of the United States condemned Il
:. rule, while the minority or only one 10
~ ss than the majority, counselled its suppol
~ leaving the Court Of this District to form
~ own opinion. In fact, the Judgment of Il
Supreme Court of the United States is I
~ duced to the opinion of one Justice. II
y question was SO involved in political contr
70 versy that il should be referred to the poll
~ cal power Of the nation. II was queBu
OF legislation and not for adjudication.
on The motion for admission and the rescin
ST. ing Of the rule was therefore denied.
Justice Wiley, concurrlng with the maj
Gu ity, read his views expressed in his oN
'ly language. The opinion Of the Suprel
OF Court Of the United States fell, he said,
ne short of compelling the Circuit Court OF Il
o" district to alter its rules. He referred to
fact that Colonel Magruder had sworn
hh support the Constitution Of the United Sta
but had violated his oath, and il he W,
es- admitted to this bar he would be again CO
PEELED to swear to support the Constitutl
s., vas as the supreme law of the land. Col.
'ne gruder, in taking up arms against the Fe
raj government, had declared he acted c.
as scientiously, and had not rapented Of I
ue' act nor changed his mind; that he owed
legiance first to Virginia and next to
ad United States-a dual fealty. To admit |
the would be needless farce.