Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1868-08-29
TEET-OATHS AND THE FRANCHISE
LAW IN TENNESSEE.

mo. 81
II the case of Garland, Mr.. Speed foI
the United States argued that TO practice
law in the court was not q right but q
privilege. We had always supposed that
6 franchise or privilege, once vested,
was q right, or at least conferred rights
that could not be arbitrarily Invested.
But the Speeds, Chipmans and Bing-
hama are commissioned to make new
law.
Mr., Speed argued that a member OF
the bar must not only have been tt to be
al attorney Of the Court, when admit
ted, but must continue to be 50; and that
II he becomes unfit, by the commission
Of any criminal or disgrsceful act, or il
he wss unfit when admitted, for such 8
cause be may be disbarTed.
This, be said, is no penalty, but only q
disqualification. 1.-The were guilty when
admitted, he was disqualified. II he
commits the criminal act afterwards, he
becomes unfit, it is true but, also, to
disbsr him is q penalty; and his unfit
ness must be sscertainedin some judicial
mode.
Undoubtedly, as Mr.. Speed said, the
Court might require every attorney at
the bsr, by P new rule, to submit again
his pr~etensions on the score Of profess
sional qualification. Undoubtedly it
could say that no person should continue
TO be an attorney of its bar, who hsd,
after admission, embezzled the public
funds or committed perjury or been gull
" Of treason. The only question is
whether the Court could, upon making
that rule, put an attorney to his oath
that he was not 8 felon.
From the fact that the Constitution
provides that 20 religious test shall
ever be required q q Oualifica-
ton to any office, Mr.. Speed ar
gued that other osths might be
exaeted. That is to carry q very
long way the maxim, often falIacious
and unsafe, that the expression or in
clusion Of one thing excludes another.
Applied TO q particular case, the srgu-
ment Is, The Court has a right to ex-
clude from the bar q person guilty Of
murder or adultery. the Constitution
forbids only the requiring a religious
test therefore the Court or Congress
may require Of every one sn oath that
he has never been guilty Of that
crime.
OF course the logic is execrable. From
the prohibition OF a religious test there
can be inference Of To kind. In q criminal
matter, or in regard To- criminal charge,
no man can be made to bear witness
against himself. No law can compel a
man TO elect Whistler he will confess
himself guilty OF a crime, by refusing to
swear hat he is innocent OF It, or to
oJmmit perjury, the penalty OF the re-
fusal to swear, being the deprivation of
. right or privilege.
nno punishment, in the legal sense,
were involved, the law would be none
the less invalid. The imputstion OF
crime and still more the confession Of it,
whether express OF tacit, involves dis
grace and dishOnor, loss Of public and
private respect, perhaps loss Of employ
ment, perhaps domestic misery; and
these consequences csnnot be entailed
on any one by law, except by conviction
upon due trial. Moreover, this tacit
confession may lead to Investigations
that will make known testimony on
which the party may be convicted.
Chief Justice Marshall, it il true. said,
in AcOtalooh Us. the State Of Maryland,
that the man would be insane who
should say that Congress had not the
power TO require any other oath of office
than the one mentioned In the Constitu-
ton. But he g v said that it could re-
quire q man TO swear that he had not
been guilty Of = crime.
It must be remembered that MIR.
Speeds argument was based on the pro-
position that 8 court may exclude an at
tOrney from the bar for any unworthi-
ness. If it can do go by means Of an
oath which the party cannot take, it may
require him to swea that he has not
been guilty Of any crime or misdemeanor
whatever, or ofa particular felony, or
shameful or ~scandalous action. This
would be like the Justice administered by
the ilquisitioD.
Another reason why no such oath can
be required is, that there ls no presump'