Year: 1865

among the powers delegated to congress, and being
unable to perceive in what sense such law could be-
necessary and proper for for carrying into


ton the powers vested in the of the United
States, or in any department officer thereof am
impeled to the opinion that congress has not the
power to pass any law impairng the obligation of
tracts such right exists at all in congress, it can
only be because it is right which is inherent in the
legislature. But, by the constitutions all legislative
powers are not vested in congress- but only such as are
therein granted, and such as may be necessary and
proper for carrying them into execution.


Whether congress possesses the right, however, to
pass such law not, Is matter of but little conse
quence III this investigation for has been decided by
the supreme court in the case of Dartmouth College
vs. Woodward, VIII. 500, that the provision in the
constitution limiting the power Of the State "has never
been understood to embrace other contracts than those
which respect property or some object of value, and
confer rights which may be asserted in court of JUS
tee. And in the case of Butler vs. Pennsylvania, it
has been decided that an appointment to a salaried
Office is not contract, within the meaning of the cen
stitution.-10 How. 402.


The office of an attorney Is hota salered Office nor
is it an Office to which there is technically any dppo


meat, nor IS it in any sense public office. BY vrture
of the laws of State attorney may acquire vested
right privilege, or franchise which may import
contract which, under the constitutional Imitation the
StGe could make law to impair, but am unable to
perceive how the admission of attorney to manage
and conduct in the courts of the United States
uluGF b1C TuleS vi te Sdlu import SuCE a
contract would be obnoxious to the constitution of
the United States 1t is true that by the act of oath
September, 1889, "the parties may personally plead
and manage their in ALI the courts Of the
United States by the assistance of such counsel
attorney at law by the rules of said courts respect


velv shall be permitted to manage and conduct causes
therein" The terms of this law certainly acknowledge
the existence of this class ofA5roessona gentlemen
denominated counsel and attorneys at law and provides
fer their admission to manage and conduct causes in
the courts OF the United States But there is no con-
tract that can perceive between the government or
the courts and the attorney, but simply privilege
awarded to the attorney to carry out contract which
he may make with his client, to assist him in the
agement of his cause in the court And there being
no such contract in relation to the business or profess
sion of attorney falls within the constitutional
lmtation am Of opinion that the act of 9th January
1865 is not invalid upon the assumed ground that it
impaired the obligation of a contract.


1t is also insisted that the act of January o. 1865
is an &c post acto law and being such it srepugnant
to the constitution of the United States, and for that
reason is absolutely null and void. In the case of
Fletcher vs. Peck G Cranch, 331, it was said by that
eminent urst, chief justice Marshall that the ques-
ton whether a law be void for its repugnancy to the
constitutions at all times, question of much deicacy
which ought seldom il ever, to be decided in the arma
tive doubtful case The court when impeledby duty
to render such judgment, would be unworthy OF its
station could it be unmindul of the solemn obligations
WHICH tlat SJlLlOu IMPOSES DuI 1t Is
pcaton and vague conjecture that the legislature to
be pronounced to have transcribed its powers, and its
acts to be considered void The opposition between
the constitution and the law should be such that the
Judge feels clear and strong conviction of their in
compatibility with each other.n | feel sensibly the
force of these remarks and they add not little to the
embarrassment under which labor in approaching this
question. The question: however is presented to me
for adjudication, and there is no other alternative but
to meet and decide it,


In order that just and proper decision of the ques-
ton may be reached it will be necessary to consider
the oath prescribed to officers OF the government by
the act Of July 1862 being incorporated with and
constituting part of the act of January q, 1865. In
determining the point raised by the objection we are
considering, we must be careful not to c0ntound
Retrospective laws with such are technically known
as er post tacSo. There is distinction between them
and unless we are watchlu in making that distinction
likely to be mised; for every &c post facto law
is necessarily retrospective but every retrospective
law is not post acto law and it is the latter only
which is prohibited by the constitution.


Under that section Of the constitution which nhibits
a State from passing any post tacto law law i'm
pairing the obligation of contracts, the question has on
several occasions been before the supreme of the
United States and that court has pretty clearly defined
what post aoto law in the meaning of the con-
sttuton. No has yet arisen before the supreme
court of which | am aware, which involved the decis
ion of the question growing out Of the prohibition to
congress, in the constitution, to pass any such law
But the technical meaning which has been affixed by
the supreme court to laws of that character passed by
the State legislatures viii doubtless be applicable to any
er post facto law which might be passed by the con
gress of the United States.


Upon the question as to tile ricanhg OF an er bost
1ncto law, within the prohibition of the constitution
the result of the decisions would to be that ca
post fact0 laws relate to penal and criminal proceedings
which impose punishments forfeitures, and not to
crH proceedings, which effect private rights retro
spcctvely The subject was extensively discussed ir
the old case of Colder Bull and cannot do better
than quote from the opinion Of Mr.. justice Chase dc
livered in that case He says:


81 shall endeayor to show what law is to be consid
cred post tacto law, within the words and mean
ing of the prohibition in the Federal constitution The
prohibition, "that State shall pass an ex most factt
law, necessarily requires some explanation; for naked
and without explanation it is uninteigibe and mean;
nothing. Literally, it is only that law shall not be
passed. concerning and after the fact or thing done
or action committed. would ask, what fact of what
nature kind; and by whom done? That Charles |.
king of England, was beheaded that Oliver Cromwell
was protector of England; that Louis WI late king
of France gulotined all facts that have hap
pened but 1t would be nonsense to suppose that the
States we're prohibited from making any law after either
of these events and with reference thereto The pro
hilton in the letter is not to Fass any law concerning
and after the fact but the plain and obvious meaning
and intention of the prohibition is this that the egs
latures of the several States shall not pass laws after
fact done by subject, citizen, which shall have
relation to such fact and shall punish him for having
done it. The prohibition, considered in this light is
additional buwar in favor of the personal security
of the subject to protect his person from punishment
by legislative acts, having retrospective operation


do not think it inserted to secure the citizen in his
private rights, of either property contract. The
prohibition not to make any thing but gold and silver
coin tender in payment of debts and not to pass any
law impairng the obligation of contracts weronscrtet
to private rights; but the restriction not pas
any post facto law to secure the person of The
subject from injury or punishment in consequence
such law. If the prohibition against making er pos


qcto laws intended to secure personal rights from
being affected injured by such laws and the prohibi


ton is sufficiently extensive for that object the othe
restraints have enumerated were unnecessary ant


therefore improper for both of them retrospective


IL Il