The workingman's advocate. [volume] (Chicago [Ill.]) 1864-1877, 1872-03-23

domestic, and the eountry in undivided
into military aepartmsnts for mere con-
venisnce, the eommander of one OF them
can, IL he chousess within his limits. on the
plea Of nscessity, with tha approval of the
Exscutive, sahsfitute hiktmy force for and
to the sxdlaioh Of the lA3a and paniah
all persons % he thinks right and proper
without fixed OF certain rules.
The statement OF this proposition
shows its Importance for, If trne, rspubli-
can goveRnmsmssiH ~ fAiiure, and there IN an
end OF liberty regulated by law. Martial
law established ON such u basis DESTROYS
every guarantee Of the Constitution. and
effectually renders the military indepen-
dent OF and superior to the civil power,
the attempt 10 do which by the King of
Great Britain was deemed by our fathers
such an offence that they assigned il to the
world ~ one Of the causes which impelled
them TO declare their Independence. Civil
liberty and thin kind Of martial law cannot
endure together: the antagonism is irrecon-
cilable, and in the conflict one or the other
must perish.
This nation, az experience has proved,
cannot always remain ct peace, and has no
right to expect that NJ will always have wise
and humane rulers, sincerely attached TO
the principles Of the Constitution. Wicked
men, ambitious Of power, with hatred of
liberty AND contempt Of law, may fill the
place once occupied by Washington and
Lincoln and If this right ID conceded, and
the calamities Of war again befan us, the
dangers to human liberty are frightful to
contemplate. II our fathers had failed to
provide for just such contingency, they
would have been false to the trust reposed
in them. They knew-the history Of the
world told them-the nation they were
founding, be its existence short or long,
would be involved in war-how often or how
long continued human foresight could not
tell-and that unlimited power, wherever
lodged at such time, was especially hax-
ardous 10 freemen. For this and other
equally weighty reasons, they secured the
inheritance they had fought to maintain
by Incorporating in q written COnstitu-
tion the safeguards which time had proved
were essential to it's preservation. Not
one of these safeguards can the President,
or Congress, or the Judiciary disturb,
except the one concerning the writ Of habeas
corpus"
At the December term 1866 two cases, ex-
citing much interest, came up from Mis-
sour, involving the constitutionality of
what was known al the test oath, imposed
by the constitution of that State, adopted
in 1855, which declares every person inca
pable of holding an Office, or certain kinds
Of property, or to practice a. an attorney
or counsellor ut Law, or to be bishop,
priest, deacon, elder, or teacher in that
State, unless he takes an oath that he has
never been in armed hostility to the
United States, or manifested his adherence
TO the cause of the enemies Of the United
States, foreign or domestic, or sympathized
with those engaged in rebellion, or indi-
Gated in any terms his disaffection to the
government Of the United States in its
contest with the rebellion. Fine and i'm
prisonment are prescribed a. a punishment
for holding any of the Offices, or exercising
any of the functions before mentioned,
without having taken this oath. After the
adoption of this constitution the Reverend
Mr.. Cummings, a priest Of the Roman
Catholic Church, was indicted and convict
ed in the Circuit Court of Pike County, in
that State, of the crime of teaching and
preaching as priest, without having taken
this oath. He was sentenced to pay fine
OF $500, and to be committed to jail until
said fine and costs of suit were paid. On
appeal to the Supreme Court of the State
of Missouri, the Judgment was affirmed,
and thecase wasthen carried to the Supreme
Federal Court at Washington. At about
the same time the case Of Mr.. Garland
came up to Washington from Missouri He
in 1850, was admitted an attorney and
counsellor of the Supreme Court of the
United States, complying with all the then
rules and requirements of that court. In
1866 there was new rule OF the court,
made in conformity Of the act Of Congress
providing that nobody, after its date, shall
be allowed to appear and be heard in any
such court unless he shall have taken and
subscribed TO what u known a. the ''Iron-
clad" oath. Garland had taken part in
the rebellion a. . member Of the Confed-
crate Congress from May, 1861, until the
final surrender Of the rebellion, and there
fore could not take the oath but in July,
1866, he received from the President full
pardon and amnesty for all offences by him
committed. Presenting this pardon to the
Supreme Court at Washington, and offer
ing to make oath that he would thence
forth support the Constitution, he asked
permission to continue to practise in the
court With taking the previous oath of
1865. He insisted that the act of Congress
imposing the ironclad oath, 90 far a. It af-
fected his status in court, was unconstitu-
tional, and that If it were constitutional he
was released by the pardon of the Presi-
dent. A majority Of the court, consisting
Of Wayne, Nelson, Grier, Clifford, and
Ur r Ii R-Ah =:
petitioner priest and lawyer rsspec-
lively. The minority, consisting Of Chase,
Swayne, Miller, and Davis, disseuted. In
respect 10 the priest the majority held that
the constitution Of Misoun was, in its ap-
plicsticn TO him, q violation Of the Federal
Constellation, which prohibited the States
from passing nm cx post facto law and In
respect 10 the lawyer the Get Of CoARreas,
the court. said, paFsock u the naturs Of .
bin Of xttainder, or was an ex post fActo
Ixw, both OF which were proAibited by the
Constitution. The minority, includinR. a.
we have said, Judge, Davis, could mot as-
sent to these views.
Another important case, involving .
question Of constitutional law, in which
Judge Davis individually and prominently
sppsaxs, il that of Brosm w. Rhoass, In
1S68, which involyed IN inquiry whether .
bond given in Decsmbsr, 1881, for payment
Of o certain sum in gold and silver coin,
could be discharged By tender Of green
backs The court decided i'm the negative,
No one but Millsr dissenting. Judge Davis,
however, delivered briefly his views, fore
shadowing what his action would be when
ever the qnsstim of ths constitutiormlity
% tho Iegaktender oct came before the
court. He mid: