The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1867-02-13
THE TEST OATH.
Supreme Court o. the Dist fict
OF Columbia.
Desisiou Of Justice Cartier ia the '.Ssc VI Allen
B. Kasruder and Others.

and Fisher in the OF motson by Allen g. Nsgruier
and Others resond rule OF the Supreme Court of the
District Columbia requiring applicants for admission
~ practice in Court tase subscribe tho
4sash:-
This is motion On the application OF Mr. Alien B.
MagrudeS for sxmsion the bar connected
with notion rescnd the rule which provides that
each applcan. for admission tho bar SHALL before be-
ing admitted take and subscribe the following OATH:
-, do soiemnly - that have voluntarily
borne against United sta.es since have been
or e engaged N
sept nor attempted to exerae furons 81 any Once
Se Ind I at ss yssS +
e ANY % ns, y %
6aiei thereto And DO further shas. the best Of
y psS s as dena thu
snl do@es,,e thai VII bear rns aih ana allegiance to
mental reservation purpose q evasion; that wh
which / ana about 10 So help dod.
The consideration of the subject In the OF the
application suggests the inquiry whether the applicant
Is eligible 10 admission, irrespective OF the His
history in this connection rendered by himself makes
hm c,z OF the District OF Columbia. Immediately
antecedent 70 the outbreak OF the rebellion, and
Der the bar of the forrner circuit
attorney under the obligation Of the foowine oaih
whch he took and subscribed The 18th of December,
1851
do soernnly that win support the constitution of
Ne limited sles: that do not hold myself "a aileg anee
and truly BEHAVE and demsan myself IN The ohcn Of ai
sssreo % he best o. nv sSi and assns So help me
Col And declare that believe in the Christian sop.
II also appears from his that about the
tme OF the Inauguration OF the rebellion and before the
secession Of Virginia, he transferred himself from ihis
jurisdiction to that State where he became officer
tue rebel army. doubtless such binding himself under
cath % do all In his power To destroy this government.
The he assigns for the violation VI his oath 10 sup
ror the constitution OF the United states attorney
ef the former Circuit Court understand him, is that
he vas native Of Virginia and owed 70 Virg MIA para
mount fealiy The mere statement of his given
by himself, would seem 10 make Impossible Tor any
federal court to incorporate him among IT'S officers
The assumption of state severe gniy and Tho
paramount duty of the citizen the stale Is old
pretence in justification for federal
shorty, having been chiefly used TO that ends
bat honest conviction or intelligent ud sment
has been entertained by but few The proposition
part s greater than the WHOLE and that The govern.
OF the United Safes only existed at the will Of one
Of one Of is members il incapable OF belief and simply
argues that the OF the United States never
existed; or it had OK 1871 ence had not vitality for self
preservation The disqualification Of the applicant for ad
1Is,pcIiration and failure 10 saw that il, taking
the oath 10 support the constitution OF the United States
n contemplation o. adm ssion 70 the bar o. this court
IN paramount duty TO this government The essential
Absurdity Of the position that state conflict with the
federal power Is greater than the nation, and duty
the State greater than duty the nation winch put
fosth prior 70 the rebellion chiefly a. q speculative
sesms still 10 aiict him, notwithstanding 1t has been
persuaded and whipped out OF nearly body else OF
che sacrifice Of about million or men IL will be per-
eeved from this view OF hrs case that " the
inpossble for the Court TO gve the appcar. ADMISSION
- Ihe bar This leads the considers OF the
March g. 1863 In order that the several parties
in she motion may be admitted members OF the bar
without first taking the oath prescribed by that rule.
understand tho motion to be based substantially upon
the assumption that the oath unconstitutiona that
~ unconstitu.ionaty has been determined by SUI
prone Court and that that discrimination is mandatory
upon the judgment OF this Court That 1t Is un-
constitutional because it is e. post fat, and
On the nature Of a penalty. IL Is fundamental rule
tona the fault OF the law should be clear and It's vio
lAlion Of tho constitution unembarassed by doubt.
Difference to the debcrat and judgment Of tho law
making and ordinate branch OF the government not
only recommends this rule but Ioakes i imperative
Up the Of the publication OF the opinion
Of the majority Of the Supreme Court this court from
che time of the adoption OF he rule has entertained
and necessity The only doubt now existing in |
snis regard has been raised By the expression |
Il is said 70 be er pos fdcso and in the nature OF
penalty. Let u inquire The penalty for what actf
hw after what act Does propose TO nfict on addi-
leave the traitor where the treason left Hmm the
enjoyment OF all the ordinary and natural estates Of the
ciuzenf The r aJaao penalty contemplated by law is
. penalty prescribed for previous crime; a new
punishment for old transgression. Does this rule
do thatf II II does, 1t Is by withholding privilege
that the party never had and that does moi
pertain TO the estate Of ordinary citizenship.
The fact In the premises which is objected IL "a ,,
zac the Office Of attorney with is privileges aud
immuntes q member Of this bar-a fact which the
party never had and Is now for tho first time seeking
The condition 10 the enjoy ment OF the Office
Of here of being after The fact precodes H. and
Il really complained OF as an obstacle tHt The oath,
instead of being penalty, is simply among tho evil
dences of fitness for the enjoyment OF tne estate in
prospect which, among other esis this court has seen
nc impose for protection Of the morale of the bar
and the integrity Of the government This view OF the
and constitutional character OF this rule is
I'D even OF tho Acknowledged constitutional
power OF Congress to make retroactive lsss.
nent the effect OF the pardon, inasmuch Is not
part Of the ofcc Of pardon To create, in criminal
rights disconnected with his crime, and that he
ala NOT before pcssesa But il is insisted that the IN
consttutonality of this rule has been determined by
upon this court. In sscertalnna vhai the Supreme
Court has determined the first guide TO judgment the
consideration Of tns case thai the supreme Court had
before Thorn II the before them defines the limits
Of their opinion thai court has not decided the
oass before The case decided by the su-
Der OF their bar The case before IA is me case
of the application Of the parties for admission IN the
oar. The in the supreme Court was privilege in
possession The case before . privilege Ia pros
pect The decision In the supreme Court involved q
snroISe" adnsson % the bar Il may be said q the
In the Supreme Court that the pardon OF the res
dent 90 far the legal liabilities OF Garland were con-
cerned removed them IL cannot be said thar SINH
Ear pardon In the before would create the priv
logo II the law expounded by the majority Of the
had before them II is not analogous with the s
Oar, and Il may be well questioned whether IL would be
authority beyond the limits Of The legislative issue pre-
ssnied Outside Of the issue at most Il could only be
considered as the expression OF opinion ny eminent
The question remains TO be considered IN tns coDuec
tion concedlng the decision Of Srpremc Court DO
In point whether u II mandatory upon the Judgment OF
this court Tbs question Is 70 he dcertnined by the
legal relation of this tribunal to that, N make their do
csion mandatory upon the Judgment az this court In
The sirici definition OF their authority they must have
she power 10 execute upon tho deliberations OF this
court The only power they poEsess IN this behalf is
given by act OF Congress- aud regulated by the right Of
eppea, and conEessedy does extend 10 the subject
under consideration II there was any donbi upon
pths pout thal doubt has been removed by the
decsons Of tina eminent tribunal. In sk pere Burr
OH wheaton, $50, Chief Justice Marhal delivering the
opinion OF the court said -
On one hand the profession an sortay "a az sycat I'm
.gorssnce 70 a, adsidua and prosperity .. ~ whoia
Ire may deptnd on ia The fiant 4, exercise N
aght not e Dc sh,y o. csprcously akep from him On
Guilty Of the bar should be mantainsd ana ., 80
with the bench should be For these sss so
CONTROL power, discretion ought Ia s,aa IL ~
This discretion ought erervsed win crea, ~ VS.
GRAFTON and Judgment but bs ererr,asd sna -