Year: 1865

Ofuer TO determine Wnether G fallS Wtnl tla pfou4u
ton, and is is not law of the United States.
If the question submitted to the court were alone
one involving the construction of the act there could
be no difficulty in arriving at its true meaning, t
intention of the Legislature in passing it, The object
and purpose of are quite manifest But whether it
may be denominated in legal accepation penal pro-
vision, and regarded simply by the law which annexes
additional qualifications for persons elected appoint
ed to Office under the government presents question
of very great perpexity For fit can be viewed in
no other light than as test OF illness Tor olcla posi-
tion under the United States government, we might,
with great reason question the proprety and the policy
of the act but would find much difficulty in contesting
its legality.


In order however, to determine the true character
of the act the oath prescribed by it must be taken as
incorporated with it, and the particular facts embodied
in the oath must be regarded the acts for which the
privilege OF practieng attorney in the courts OF
the United States is to be denied In other words the
act must be taken though It had in the body of it,
declared in terms that person shall be admitted to
the bar of any of the courts cf the United States, as
an attorney counselor thereof shall be allowed to
appear and be heard in any such courts, by virtue of
any previous admission, who has been guilty of any of
those acts which, by the terms OF the prescribed OATH
ne is made to we're done orseommitted by
him It is equivalent to a positive enactment by
gres5 That person shall be admitted, be heard III
the courts of the United States by virtue of any prev
admission who has done any of those things which
enumerated in the prescribed OATH Some OF these





and by the laws of the United States, have been de-
clared to be very grave crimes, while others of them
not declared criminal by positive law, to sub
ect the offender to that corporal punishment Which is
usually annexed to the commission of crime; but yet
they have been treated offences under the recent
conscaton laws of the United States and the property
of the offender made liable to seizure and conscaton.
And with this view of it. and the here stated
in which are to consider it. the question then pre-
sents ITSELF is the act under consideration to be taken





for office under the government; or is to be regarded
as criui1Gi enactment, which infcts penalty upon
those who neglect refuse to comply with its terms


The act may be justly considered as applying alone
to the members of the legal professions for although,
BY the act of 9th September, l789 parties mag plead
and manage their own causes personally in the courts
of the United States yet, in practice know that
causes in those courts are generally, not universally
managed by the assistance of attorneys at law. Ii,
then attorneys at law can be regarded as officers of
the United States might feel little hesitation in de
carng that the whole extent and object Of the act was
simply to prescribe additional qualification for such
an office But if they not officers of the goperg-
me1t and forfeiture is incurred by their refusal to
comply with its terms, it would seem quite clear that
the act is penal in its consequences and in giving
effect to it, the court must regard it i'll the light OF
penal law.


All the officers of the United States become SUCH
either by election, the president and yicepresi
dent, by the appointment of the president by and
with the advice and consent of the senate except such
of the inferior officers congress may by law vest in
the president alone, in the courts of law, in the
heads Of de nents. Con. Art. II, See. 2. An at
torAe4eaaH although he is an officer and for very
long time has been denominated, he cannot be re-
garded officer Of the United States, because not
elected appointed in the manner prescribed by the
constitution. The very act in question, however,
would to have regarded them such officers for
it declares hat any person who shall falsely take the
said oath shall be guilty of perjury and conviction
shall be liable to the pains and penalties of perjury and
the additional pains and penalties in the said act July
3D. 1862 provided" And that act of July Cd, 1862,
declares that che shall be deprived of his Office, and
rendered incapable for after of holding any Office
place under the United States Unless an attorney
therefore, had been regarded as an officer of the gov
ernment, this provision to deprive him of his Office
would hardly have been inserted in the act of January
81, 1865 which we now considering. It is manifest
however, that attorney at law is not an officer OF
the United States, and so far as he is concerned,
cannot regard the law in question simply prescribing
additional qualifications for office. And if he be not
such an officer, and the act in question can have no
application to him. in the view we have been consider
ing it, we must advert to his actual relation to the
court in order to ascertain whether in its effects and
consequences as 20 the attorneys the act is penal.


By the first English statute, Weston C, 10, it was
enacted "That attorneys may be made to prosecute
defend any action in the absence of the parties to the
suit" These attorneys, says Blackstone, now
formed into regular corps they admitted to the
execution of their Office by the superior courts OF
Westminster Hall; and are i'll points officers of the res
pecvc courts to which they admitted; and as they
have many privileges account of their attendance
there they peculiarly ect to the censue and
animadverson of the judges And SO early as the
statute Of Henry " c, Is, it enacted that attor
neys should be examined by the judges, and none ad
mitted but such as were virtuous learned and sworn
to do their duty.3 Black. Com. 26.


Ever since this statute Of Henry w. it has been the
practice and in the States of the American Union il
prevails to this day not to admit attomeys-ataw unit
they shall have undergone an examination in the mode
prescribed by law and be found to possess the qualf
cations required by that old English statute The law
of the United States passed early the oath OF
| September, 1882 recognises attomeys-atlaw, and
under rules to be by the of the United
, States, admits them to conduct and manage cases
therein Of course when so admitted, attorneys arc
in all respects they have always been regarded il
England, and in this country, officers of the courts il
which they practice and are amenab@o them for the
: good conduct.


As such officers then when admitted under the rules
of the court, attorneys have right as conceive under
the laws Of the United States and so to continue unit
the court, upon good cause shall proper to strike
their names from the roll of attorneys in the court
The law is their profession; by it they make thc
living; and in the pursuit of their profession they
should be, and presume are as much protected by
the law any other citizens in their ordinary avoca
tions 1t is doubt within the power of congress tC
exclude lawyer from the practice of his profession II
the courts of the United States who has committed
crime and been couycted it but it does follow that
when act is done, and after the commission of it
person is admitted to the privileges of the courts that
congress has the power to declare the act nIat,
if lawful at the time it committed to change the
punishment annexed to it, and by that exclude
the attorney.


This according to the decisions before referred to-
would be e1 post tecto law and repugnant to the
constitution of the United States. And in this case
Mr.. Baxter admitted attorney IN this court
under recent rule of the court and btore the passage
of the act in question: and such, has continued tt
conduct causes in the court the time when he
/ REQUIRED to take the prescribed OATH


y Now, assuming that Mr. Baxter been guilty OF
some one or more Of the acts enumerated in the pre-
unr;lnd oath or rater in the law we are cnnsdeSinc