Year: 1865

Some time ago we gave the points of interesting
decision delivered by judge Trgg in the circuit court
Of the United States for the eastern district Of Tenn
about the st OF June last in the matters touching the
right OF John Baxter, Esq, to practice law in that
court So many applications have been made to for
the decision that we present herewith, nearly full


In order to properly understand the nature of the
question presented for the consideration and determi
nation of the court it will be well to state the facts
they exist John Baxter having a number of years
ago obtained license in the usual form to practice
law admitted attorney and counselor Of this
court some eight nine years since upon his comply
ing with the rules of the court prescribing the terms
upon which attorneys might be admitted to practice
therein More recently and since the restoration of
the authority Of the United States government within
this district, (Which authority had for long time been
suspended, in consequence of the then existing rebel
ion at the sitting of the first court thereafter in the
month OF May, 1854 rule made by the court to
the effect that no person should be admitted
age and conduct therein until he should first
have taken the oath to support the constitution of the
United States, and, if he applying for the first
time to be admitted also the usual oath of attorney
This rule complied with by the said Baxter and
he again admitted to all the privileges of attor
ney of the court, and has been exercising them from
that time until the present.


On the 24th day Of January last an act was passed
by the congress Of the United States entitled An act
supplementary to act entitled AN act to prescribe
an oath of office, and for other purposes approved
July 2, 1862" The actis as follows:


That no person. after the date of this act shall be
admitted to the bar of the supreme court of the IT, S.
or at any time after the fourth of March next shall
be admitted to the bar of any circuit or district court
of the United States, of the court of claims,
attorney or counselor of such court shall be allowed
to appear and be heard in anyguch court by virtue
of any previous admission, any special power OF at
torney, unless he shall have first taken and subscribed
the oath prescribed in 'an act prescribe oath of
office, and for other purposes, approved July ., 1852
according to the forms and in the in the said
act provided which oath taken and subscribed shall
be preserved among the files of such court, and any
person who Shall falsely take said oath shall be guilty
of perjury, and on conviction, shall be liable to the
pains and penalties of perjury, and the additional pains
and penalties in the said act provided"


The oath prescribed in said act is in the words fol-
lowing;


| 81, A. b. do solemnly swear that have never vol
UNFAIRLY taken up against the United States since
have been citizen thereof; that have voluntarily
given neither countenance counsel nor encouragement
to persons engaged in armed hostility thereto; that
have not sought nor accepted, nor attempted to exer
else the functions of any office whatever under any
authority pretended authority in hostility to the
United States; that have not yielded voluntary sup
port to any pretended government authority power
or constitution within the United States, hostile
inimcal thereto. And do further that, the
best Of my knowledge and ability, will support and
defend the constitution of the United States against all
enemies foreign and domestic; that l will bear true
faith and allegiance to the same that take this obl
cation freely without mental reservation or purpose of
evasion So help me God"


| On former day of the term, the said John Baxter
addressed the court from the bar and asked perms-
sion to file plea for of his clients when he was
informed by the court that motion from him could
be entertained until he first complied with the act of
congress Of 24th day Of January 1865 by taking and
subscribing the oath therein prescribed and which is
the above set forth. And thereupon said Baxter OBJ
ected to said oath upon the ground that the act of
congress imposing the same unconstitutional and
void and that the court had right require him to
take it. before he should be further heard as an attor
ney Of the court


The question then for this court to decide is whether
the said act of congress of January, 1865, requiring
attorneys to take the oath aforesaid before being adj
mitted to practice in the courts of the United States
is valid law not. For il the act in question is
repugnan to the constitution of the United States this
court has alternative but to require the prescribed
oath to be taken by all attorneys proposing conduct
causes therein, and, their refusal take the same,
exclude them from the privileges of attorney in
| the court.


The question has been very ably and claborately
argued by Mr. Baxter, the obiector, and Mr.. Thomas
A. r. Nelson against and by Mr.. Horace Maynard in
favor Of the constitutonaty of the law. 1t is ques
ton of very great interest," and it might be added OF
the highest consequence those members Of the pro-
fession who, from various causes, have remained,
throughout the war; within the limits Of the rebel lines,
and very many Of whom have availed themselves, in
good faith of the benefits Of the proclamation of the
late president Of the United States Of the 8th day Of
December. 1862 rendering pardon and amnesty to
certain persons engaged in the rebellion. And while
the question presented is which involves only the
constitutonaty of the law, without any reference to
the policy or expcdiency Of its enactment, yet the
constructions .above stated contribute in small de-
gree to the very great embarrassment which certainly
feel in arriving at what should be deemed just and
proper determination of it.


1t has been strenuousy urged that the act under
sideration is q law which impairs the obligation OF
contract and for that reason is in violation Of the
stitution of the United Staes and consequently null
and void This position is assumed upon the idea that
under the laws of the State of Tennessee land it is
presumed that the other States of the Union have
laws in relation to the subject no person is per-
mtted to practice attorney until he shall first
undergo an examination by two more judges of the
State courts and if he shall be found possess the
requisite qualifications, to be by them licensed to prac
tce in the courts of the State and to receive the fees
and emouments of his profession.


The license thus obtained, it is argued, vests in the
attorney right to prosecute his profession and to take
and receive the profits Of it. and is much contract
the part CT the State that he shall be permitted to do
so as would be license to merchant or charter to
an incorporated company to engage in the particular
business which they might be authorised to pursue
And when attorney thus licensed presents himself
before court of the United States and he is admitted
to practice therein upon his complying with the rules
Of the court, the rights it is maintained attach
to him in the last named courts those which spring
from his license and Qualification in the State courts
In other words that there is contract with the attor
ney, that as long as he demeans himself well in his
profession, he shall be permitted to prosecute it and
derive whatever of emolument profit that may at
tach to it. And that this contract is such as
under the constitution Of the United States be
impaired by congressional legislation.


Assuming that there exists such contract as that
contended for, not aware that the question here
presented submitted to- or adudcated by the
supreme court of the United States. The tenth sec
ton of article first in the constitution limiting the
powers Of the States, among other things provides


that State shall pass any bill Of attander post
tccto law, apajriag Tie obligation, Of contracts"


This clause in the constitution has reference alone to
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