The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1868-02-24

I0c Dtdtc VI IuiooOuIi ia uOi SouobieuS'NH
and the Congress of U. S. had each pre-
scribed test oath for attorneys similar
to that prescribed by the Legislature OF
West Virginia by the act in question OF
l4th of February, 1866, except that OF
Missouri, was more comprehensive, than
either of the others. In two cases, one
from the Missouri, known as the Cnm-
mings' case (it being one Of Catholic
priest) and the other arising under the
law of Congress, on the petition of A.
H. Cortland, to be permitted to practice
in the Supreme Court of L. S. with
cut taking the oath, commonly
called the "test oath,n the Supreme
Court of U. S. has decided the
laws prescribing the "test oath" uncon-
stitutional. In the case last above refer
red to, the following language is used
by the Court, in delivering its opinion.
"All enactments of this kind, partake
of the nature of bills of pains and pen
alties, are subject to the constitutional
inhibition against the passage of bills
of attainder, under which general desig-
nation they are included. In the ex-
clusi.n which the statute adjudges, it
imposes punishment for some OF the
acts specified which were not punish
able, or may not have been punishable
at the time they were committed; and for
all the acts, it adds a new punishment
to that then prescribed, aud il is thus
brought within tho further inhibition
of the Constitution against the passage
of an er post tacto law. In the case OF
Cummings rs. the State of Missouri,
Just decided, we had occasion to consid.
or at length the meaning of bill Of at
tainder and an er pest facto law in the
clause of the Constitution forbidding
their passage by the States, and it il
unnecessary to repeat here what We
then said; like prohibition is contain
ed in the Constitution against enact.
ments of this kind by Congress, and the
argument presented in that case against
certain clauses of the Constitution OF
Missouri, is equally applicable to the
act of Congress, under consideration III
his case"
Hence the Supreme Court of U. S. has
decided that the act of Congress, (oi
which the act of West Virginia, now
under consideration, is nearly a copy
and in substance the same), and the law
of the State of Missouri, are er post factC
laws, and Of the nature of bills of pains
and penalties, coming within the inhi.
bitions of the Constitution, as con-
tanned in Art. l, secs. 9 and ~, lst and
Sd clauses, mo bill of attainder or eI
post .factO law shall be passed" "No
State shall pass any bill of attainder
er post facto lap, or law impairing the
obligation of contracts" 1t will be
seen that the first inhibition applies ia
Congress, and the second to States.
Therefore it would seem that the theo.
ry of this case is as follows: The Consti.
the land, and all laws of Congress-
State Constitutions and acts prepared
by the Legislature in conflict Herewith
are void ab initio. This Constitution
has provided a Supreme Court whose
proper function is to settle all questions
of doubt arising on any of its provisions
and the Constitution goes further and
provides that the Judges in every State
are bound thereby.
But desiring to investigate this ques-
tion fully the Court requested James II.
Ferguson, Esq, to participate in the
discussion, which he has done with his
usual ability, against the motion of the
applicant. He has read some authority,
and stated to the Court that he could
produce others, upon tho questions
argued by him before the Court. On
this statement, and being both q young
man, and still younger judge, and fol-
lowing the precedent of the Court of
Appeals of West Virginia, and of Judge
jackson of the District Court of the Uni
ted States for West Virginia, when
they respectively had this question
under consideration, the Court will
withhold it's final decision for the pres
ent, but in the meantime permit the ap-
plicaut, who heretofore practiced in the
Circuit of this county, to qualify, on his
motion. Ii is therefore ordered that the
applicant be admitted to practice as an
attorney in his Court, on his taking the
oath to support the Constitution of the
United States, the Constitution Of West
Virginia and the ordinary oath of at
torneys. w. l.. HTNDMAN.