Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1867-01-19
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DECISION ON TEST -zOATHS.
,DIssenlIng Opinions.

.f-'J ,DissentIng Opinion. ,a..T
Mr.. JUSTICE MILLER-I dissentfrom both
the opinions the Court just announced. It
may be hoped that the exceptional circum-
stances which give present Importance to
these cases will soon pass away, and that
those who make the laws, both State and
National, will find in the conduct of the
persons affected by the legislation Just de-
clared to be void, sufficient reason to re-
peal or essentially modify it. For the
speedy return of that better spirit which
shall leave no cause for such laws all good
men look with anxiety, and with q hope,
trust, not altogether unfounded But the
question involved, relating as 1t does to the
right Of the Legislatures of the nation
aud the State to exclude from offices and
places Of high public trust, the admins
tration Of whose functions are essential to
the very existence of the Government, those
OF its own citizens who engaged in the re-
cent, effort, to destroy that Government
by force, can never cease to be one Of pro-
found interest. 1t is at all times the exer-
else of an extremely delicate power for this
Court to declare that the Congress of the
nation or the legislative body of State
has assumed an authority not belonging to
1t, and by violating the Constitution has
ICuuCICu NOlu Ibo dJbcIllDb dJ lSldIlOUs
the case of an act of Congress, which eX-
presses the sense of the members of a
coordinate department OF the Government,
as much bound by their oath of Office as
we are to respect that Constitution, and
whose duty it is, as much as it is ours, to
be careful that no statute be passed in vio-
lation Of it, the incompatibillty of the act
with the Constitution should be so clear as
to leave no reason for doubt before we pro-
nounce it to be invalid. Unable to see this
incotnpatibility, either Ia the act of Con-
gress, or in the provision of the Constitli-
tiOn Of Missouri upon which the Court has
just passed, but entertaining strong con-
viction that both were within the compe-
tency of tire bodies which enacted them, it
seems to me an occasion which demands
that my dissent from the judgment of the
Court, and the reasons for that dissent
should be1placed on its records. In the
comments which ! have to make on these
cases, ] shall speak of principles equally
applicable to both, although shall refer
more directly to that which involves the
oath required of attorneys by the act of
Congress. reserving till the close some re-
marks more especially applicable to the
oath prescribed by the Constitution OF the
State of Missouri. .5 .. t..,-....... ,r
The Constitution of the United States
makes ample provision for the establish
ment of Courts of justice to administer its
laws and to protect and enforce the rights
of its citizens. Article three, section one
of that Instrument says that the judicial
power of the United States shall be vested
In one Supreme Court and such other in
ferior Courts as Congress may from time to
time ordain and establish. Section eight
article one, closes its enumeration of the
powers conferred ON Congress by the
broad declaration that it shall have author
ity to make all laws which shall be neces-
sary and proper for carrying into execu-
tion the foregoing powers, and all other
powers vested by this Constitution In the
Government Of the United States, or in any
department thereof. Under these provis-
ions Congress has ordained and established
Circuit Courts, District Courts aud Terri
torial Courts, and has by various statutes
fixed the number of the Judges of the
Supreme Court, 1t has limited and defined
the jurisdiction of all these, and determin-
ed the salaries of the Judges who hold
them. 1t has provided for their necessary
officers, as marshals, clerks, prosecuting
attorneys, 0bailiffs, commissioners, Jurors.
And by the act of 1889, commonly called
the Judiciary act, passed by the first Con-
gress assembled under the Constitution, it
Is, among other things, enacted "that in all
the Courts of the United States parties may
plead and manage their causes personally,
or by the assistance of such counsel or at
torneys at law as by the rules of the said
Courts respectively shall be permitted to
manage and conduct causes therein" 1t is
believed that, civilized nation of modern
times has been without class of men in
timately connected with the Courts and
with the administration of Justice called
Yariously attorneys, counselors, solicitors,
proetors, or terms of similar. import.
The enactment which we have lust
cited recognizes this body of men and their
utility in the judicial systemo of the United
States, and imposes upon the Courts the
duty of providing rules byrwhich persons
entitled to become members of this class
may be permitted to exercise the privilege
of managing and conducting causes in
those Courts. They are as essential to the
successful working of the Courts as clerks,
sheriffs and marshals, and, perhaps, as the
Judges themselves, since no instance lis
known of Court of law without bar,
The right to practice law in the Courts as
a profession is privilege, granted by the
law under such limitations or conditions In
each State or Government as the law-mak-
ing power may prescribe. 1t is a privilege,
and not an absolute right The distinctiGrl
may be illustrated by the difference be-
tween the right of party to a, suit in
Court to defend his own cause and the right
Of another party to appear and defend FOR
him. The one, like the right oflife, liberty
and theopursuit oflhappiness--is inalien-
able; the, other is the, privilege conferred
by law on person who complies With the
prescribed conditions. Every State In the
Union and every civilized Government has
laws by which the right to practice in,its
Courts NAV be granted. and makes that