Year: 1867

Friday Morning, January %, 1867.


Quailncntions of Attorneys aud Counsel.
l0rs. .t


1t Is dllhcult to account for the extreme
obstinacy of the Congressional struggle oveI
Mr.. Boutwells bill providing that attorneys
and counsellors who have given aid, comfort
or encouragement to armed enemies of the
country shall be excluded from the courts OF
the United States. After night session and
an adjournment the bill passed the House by
decisive vote. 1t will very likely pass the
Senate, and be enacted in due time in spite OF
the Presidents veto. But the majority of the
Supreme Court will undoubtedly overrule the
law, in the very first case which comes before
! them. .i-
1t would seem, to be sure, that Congress has
a clear right to define the qualifications of at
tomeys who are to practice in United States
courts. In the States the custom is well set
tied. Our own LIE gislature has repeatedly
determined by statute the terms of admission
to the bar of State courts. Proof of good
character has always been one of the condi-
tions. Evidence of legal attainments has also
been required. We are not aware that these
conditions have been regarded as injurious to
those persons who were unable to comply
with them. If a candidate should present
himself for admission to the bar without ptop-
er evidence of his qualifications, he would GER
tainly be rejected. No court would venture
to adopt rules in conflict with the statute. ,.


1t would seem then that Congress has a
clear right to legislate ON this subject, and to
insist, for example, that persons acting as at
torneys in the courts of the United States
shall be citizens ofthe United States, or at
least that they shall not be enemies of the
United States. 1t would seem that rebellion
against the authority of the United States
ought to affect the rights and privileges ofciti-
zens, and that Congress at the close of pro-
tracted civil war might properly require per-
sons desirous of exercising these func. ions to
purge themselves Of completely with rebellion.
If Congress has not this power it ought to


The Supreme Court five out of nine
judges will not admit that this power is in
Congress. The law, as interpreted and as we
must for the present receive it, looks upon
such restrictions as punitory. 1t appears to
be an indefeasible right of Americans to read
protracted arguments before the nine respect
able gentlemen who on important questions
divide five to four, and would doubtless di-
vide more evenly if it were physically possible
Any limitation Of that right, any requirement
of qualifications, is al. injury to all unqualified
The law considers exclusion from the courts
as punishment, penalty for disqualifica-
ton; legislation which affixes such penalty
to ofenses already committed is er post facto
legislation, and as such distinctly prohibited
by the constitution. OF course the provision
OF the constitution which requires the Presi-
dent to be at least thirty-five years of age is
equally penal in its character, designed to pun
ish"the atrocious crime of being young man. .
and was at the time of its ADOPTION equally
ca post facto, many American citizens having
been under thrty-five for years before the
penalty" was declared.


We must take the law, however. as we find
it, and be thankful that it is no worse. Such
bills as MIR. BoutwelPs will amount, so far as
we can see, to nothing more than an express
sion OF the opinion of Congress, A resolu-
ton would answer that purpose quite as well.
The country expects more effective legislation
from Congress at this juncture. 1t is insuffer-
able that grave questions of public policy
should be subject to the decision of a bare
majority of the Supreme Court. 1t is outra-
geous that such decisions should be foisted
upon the country by judges going out of their
way 10 seek political questions, as in the Dred
Scott case and more recently liz the Indiana
conspiracy cases. There was no pretense that
Congress had authorized the sitting of the In
diana military commission, yet the majority
of the court took pains to declare that Con-
gress could not create such tribunal Such
was not the disposition or practice of the
court prior to 1857. Until that time the Judges
wisely avoided such controversies, as far as
possible. 1t is essentialto the preservation OF
the public respect for and confidence in the
Supreme Court, that the attempt to enlarge
its jurisdiction and travel out of its PROVING e
as supreme arbiter of definite issues. be
summarily checked. We believe Congress to
be entirely competent to forbid the court to
indulge any further in the dangerous practice
of pronouncing Obiter dictd, on pain of i'm.
peachment. Congress Furthermore has the
power to prescribe what number of Judges
shall constitute quorum, and what number
shall concur in an opinion. 1t has const:tut-
ed five quorum and decided that majority
shall concur. These regulations NAV be
changed, and we believe it would be wise to
require concurrence of two-thirds in any
opinion touching the constitutionality of the
acts Of Congress or the construction of treaties.
leaving less important cases as now, subject
to majority decisions. The present danger is
not that the nation will be baflled; no OBJ
struction can stay the mighty impulse which
bears us forward to grander development
than this generation dared hope for before
the war. The danger is that the Supreme
Court may suffer serious loss of its ancient
prestige, il tpersists in thrusting itself in the
way. 1t is the duty of Congress to protect
the court from that DANGER