The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1867-01-17
ATTORNEYS, TEST OATH.
Dissenting Opinion, Delivered In the
Supreme Court of the United States,
on Monday last. '.t i3s

effect of the circumstances under which
the law was passed would soon cease,
in order that the statute might be re-
pealed or modified.
All good men looked for the return of
better feelings between all sections,
when the reasons for the law would
not exist; but the question now pre-
sented involved the exclusion from
offices of public trust those who en-
gagged to destroy the Government by
force. This could never cease to be one
of profound interest. 1t is always del
icate to say Congress exercised power
not confided to it.
In the act of Congress members are
as much bound by oath to support the
Constitution as are the Judges of the
Court. The Constitution makes ample
provision for courts ofjustice to admin
lister the laws and protect the rights of
the citizens. Article Sd, section l, says:
1.-THE Judicial power OF the United
States shall be vested in one Supreme
Court" &c. Power is vested in the
Constitution to fix the number of the
Judges of the Supreme Court, fix their
salaries, provide for all necessary Off :
GERS, such as marshals and prosecuting
attorneys, commissioners, jurors and
bailiffs. r
By the act of 1889, commonly called
the Judiciary act, it is enacted that par
ties may appear and manage their
causes personally, or, according to the
rules, it is believed there is no 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 are as essen
tiaI to the working of the Court as are
Marshals, Sheriffs, and other officers.
AS there is no instance of court
without bar, to practice is a privi-
9Doh ann1itjnnG tho 10
making'power may prescribe. 1t is Il
privilege, not an executive right. Eve
ry State in the Union, and every civil
lied government on earth have laws by
which the right to practice depends lon
professional skill and good moral char
acter. The continuance of the right is
made by law the continuance of these
qualities; attorneys are often deprived
of the privilege when it is discovered
they are of bad moral character. This
Is done by law, statutory or common,
which is equally the expression of pub
lie will.
Attorneys are subject to legislation
power to prescribe the qualifications of
attorneys, and to prescribe the oath.
The act just declared unconstitutional
is nothing more than law that attor-
neys shall take the same oath as other
officers in civil or military life. This
looks at their past and future conduct,
and all has reference to the overthrow
of the Government.
They are required to swear that they
are not guilty of treason in the past,
and will give their allegiance to the
Government in the future. That true
and loyal attachment to the Govern
ment is made the qualification of attor-
news seems to be plain. History shows
that members of the legal profession
are powerful in government as they are
moulders of public sentiment ana the
power of government. They aid in the
construction and enforcement of law,
as from among them Judges are elected.
To suffer reasonable sentiment un-
checked is to let the stream be poisoned
the past had rendered faithful allegi-
ance to the Government we should
have been spared the horrors of the
rebellion. Ifthis qualification is essen
tial to a lawyer, it cannot be denied
that the law was intended to secure
that position. The majority of the
Court, however, do not base their de-
cision on a mere absence of authority
to enact laws on the subject under con-
sideration, but insist that the Consti-
tuition prohibits the enactment of such
laws both by Congress and the States;
the present law is in the nature of an
&c post fdeto law, and that the proYi-
in conflict with the Constitution for the
same reason, and are therefore void.
In regard to bills of attainder, we
must recur to bills of attainder passed
by the British Parliament in order to
enable us to arrive at a conclusion as to
what was intended to be prohibited by
the Constitution. The word attained is
defined to be the corruption of the
blood of the criminal capitally con-
demned, which takes place by the COM
mon law in sentence of death. The
party attained lost all power to receive
or give by Inheritance. This attaint or
corruption of blood continued to be the
law of England at the time our Con-
stitution was formed, and may be the
day. Bills or acts of attainder declared
persons attained or blood-corrupted, SO
as to lose heritable qualities. -.
Section second of the Constitution de-
clares that Congress shall have power
to declare the punishment of treason,
but no attainder of treason shall work
corruption of blood or forfeiture, ex-
cept during the life of the person at
tanned.
He then explained at some length his
views on this section, showing that the
trainers of our Constitution struck
boldly at despotic machinery by pro-
hibiting the passage of ez post JGcto
laws anu DlIIS Ol dIJhluu0Es Will LA0eA-
ception which the Constitution provi-
ded.
Itremained to be seen whether the law
of Congress and the Missouri Constitu-
ton were brought within this class of
bills. 1t is not claimed that the act
works corruption of blood; therefore, it
is not bill of attainder, nor did he1 see
that it contains conviction of any desig-
mated persons. Is is true that acts were
passed in Great Britain againstpersons
whose names were unknown, but the
laws leave nothing but the name of the
persons to be made out, and to prove
their association with the crime COM
mitted. If not so, it would be mere
brutent JlLLnle1l, and punishment could
be visited only by proof of the guilt.
No person was pointed out by the act OF
Congress, either by name or description,
1t is said that the law was made to apply
to those engaged in the rebellion, but
this is mistake. It is applicable to all
The act does not declare confiscation,
nor does it pronounce sentence, or in
f1ict any punishment. 1t leaves the
party himself to determine the act OF
guilt, or announce and pronounce his
own innocence or sentence. 1t desig-
mates no name nor guilt, and pro-
nounces no sentence and inf1icts nc
punishment; therefore 1t cannot in any
sense be called a bill of attainder. AS
to its being an er post Jdcto law and q
penal statute, will agree it applies tC
criminal cases alone, and not to civil
proceedings, which affect private rights
respectively. stIE.t ..i il
Cases were cited in support of the ar.
gument, and the argument was CON
tinued to show that the law imposed q