who practise in it, and their respective rights and duties, are regulated by the common law; and it has been well settled by the common rules and practice of the common law courts that it rests exclusively with the court to determine who is qualified to become one of its officers as an attorney and counsellor, and for what cause he ought to be removed." After these repeated decisions this question may be said to be res judicata. JUDGE WYLIE'S OPINION. Matter of the application of Allen B. Magru der to be admitted to the bar of the supremo court of the District of Columbia. Also, motion made by Mr. Bradley, that said court rescind its rule requiring applicants for admission to the bar to take the oath commonly called the test-oath, prescribed and adopted 23d March, 1863. The inherent right of each court to regulate its own rules of practice, including the terms of admission of attorneys to and dismissions from the bar, has come down to us unquestioned through the long life of the common law. With regard to this court, and its inherent power of making its rules of admission to and dismission from the bar, Congress, the law-maker of this court, has not only confirmed the common law power of the court, hitherto deemed almost necessary to the existence of the court, but made it the duty of the court, in the organic act of its creation, to exercise that power, leaving the court in its discretion the sole tribunal to pass upon the question, subject only to the penalty of impeachment for the abuse of the power. These considerations are conclusive of the as- At the first meeting of the new court, held on sumption that the opinion referred to is author- the 23d of March, 1863, it was ordered that all ity with this court. While we deny to this de-applicants for admission to the bar should take cision of the Supreme Court the office of such and subscribe, as a condition of their admission, authority, we acknowledge the potency of that the oath, which the judges had themselves voluntribunal as the instructor of judgment, and if tarily taken, prescribed by the act of Congress it had united its great wisdom in the pronuncia- approved July 2, 1862. tion of opinion invalidating the rule in controversy we should feel disposed to bow to it. This application and this motion, though in some respects distinct subjects, have been argued together. I shall first proceed to consider the motion to rescind our rule. By the act of the 3d March, 1863, the late circuit court and the late criminal court of this District were abolished, and their powers and jurisdiction transferred to the supreme court of the District of Columbia, which was established by the same act. That act also conferred upon this court full power to make all rules which it might think proper relating to the practice of the court. But it comes to us as advisory, and we must receive it upon the conditions upon which it is sent. These conditions in the way of advice are that a majority of one of that Court counsels the condemnation of the rule, while a minority of one less than the majority counsels its support, leaving this court to form its own opinion without any substantial aid from the decision. If we were to adopt the conclusion of the majority, it would be at the expense of condemning a law of Congress in defiance of the rule of judgment already referred to, and substantially upon the opinion of a single justice of the Supreme Court, for the judgmant, after all, weighed in the balance, is reduced to the opinion of one justice, a result, however binding, not very impressive of wisdom when applied to the condemnation of a law. In January term, 1835, the Supreme Court, through Chief Justice Marshall, refused to take up the cases of the Mayor of New York vs. George Miln and George Bricer vs. the Commonwealth's Bank of Kentucky (9 Peters, 85) because the Court was "not full," in consequence of the resignation of Justice Duvall. This controversy of judicial opinion, largely attributable to political excitement, demonstrates to our judgment that the question in controversy is so involved with political considerations as to render it eminently proper that it should be referred back to the political power of the nation, and the law-making power which created it be consulted in its modification or repeal. Without suggesting what would be our judgment as to the modification of the rule, .or whether any, let it be sufficient to say that it is a question for legislation, and not for adjudication. The motions are denied. That act is in the following words: "That hereafter every person elected or appointed to any office of honor or profit under the Government of the United States, either in the civil, military, or naval department of the public service, excepting the President of the United States, shall, before entering upon the duties of such office, and before being entitled to any of the salary or other emoluments thereof, take and subscribe the following oath or affirmation: I, A B. do solemnly swear (or affirm) that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel,or encouragement to persons engaged in armed hostility thereto; that I have neither sought nor accepted nor attempted to exercise the functions of any office whatever, under any authority or pretended authority, in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power, or constitution within the United States hostile or inimical thereto; and I do further ability, I will support and defend the Constitution of the swear (or affirm) that, to the best of my knowledge and United States against all enemies, foreign or domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter; so help me God." This oath has been taken and subscribed by every one who has since been admitted to the bar of this court. The act, however, was not of itself obligatory upon the court or any of its officers, but only upon persons in the civil, military, or naval departments of the public service. But we were in the midst of a terrible civil war; surrounded by a large population, many of whom were, in sentiment at least, disloyal to the Government; we were a court created by the United States, to stand if it stood, and be destroyed if it were overthrown; we were at the capital of the nation, and yet in sight of the armed forces of the rebellion. Treason walked our very streets defiantly, and encouraged its partisans amongst us with the promise of a speedy triumph of the rebellion. It was at a time like this that the court fel itself called upon to exert its whole power to the question of the constitutionality of our testexclude the traitors to their country from admis- rule, it is not my intention to discuss that subsion to the bar of one of that country's courts,ject on this occasion. I have as yet heard no arguments which have disturbed my original convictions on that point. and we ordained the rule which we now have under consideration. Its constitutionality was not then called in question, nor was its propriety doubted. The office of attorney at law is one known to the common law, and with us is regulated in part by that law, partly by several acts of the Assembly of Maryland yet in force in this District, and partly by the act of Congress of 3d March, 1863, creating this court. The English statutes relating to attorneys at law are not in force here. The recent decision of the Supreme Court of the United States in Garland's case has been made the occasion of the present motion, and has been cited as settling the question against the rule. But I do not so understand that decision. On the contrary, it seems to my apprehension plainly inapplicable to the case under consideration. In compliance with the act of Congress of January 24, 1865, the Supreme Court had adopted a rule to carry out the provisions At common law no one was allowed to prac- of that act, which were as follows: That no tice law in any court till after examination and person, after the date of this act, shall be admitadmission, and every court possessed the exclu-ted to the bar of the Supreme Court of the sive power of prescribing the qualifications and conditions for admission to its bar. Blackstone says: "No one can practice as an attorney in any of the courts of Westminster Hall but such as is admitted and sworn an attorney of that particular court; an attorney of the curt of king's bench cannot practice in the common pleas, nor vice versa." United States, or at any time after the 4th of March next shall be admitted to the bar of any circuit or district court of the United States, or of the Court of Claims, as an attorney or counsellor of such court, or shall be allowed to appear and be heard in any such court by virtue of any previous admission, or any special power The statute of Maryland of April, 1715 ch. of attorney, unless he shall have first taken the 41, sec. 2, conferred upon the courts of that State oath prescribed in an act to prescribe an oath of full powers to make "such rules and orders from office, and for other purposes, approved July 2, time to time for the well-governing and regu-1862, according to the forms and in the manner lating the said courts, and the officers and suitors thereof, as to the courts, in their discretion, shall seem meet." By another act of Maryland of the sarre year and month, ch. 48, sec. 12, the justices of the courts of that State were invested with authority to admit and to suspend attorneys at the bar without qualification or restriction, (salvo jure corona,) except that no court should admit any attorney to its bar without requiring of him the oath of allegiance prescribed by the act of Parliament, passed in the 6th of Queen Ann, entitled "An act for the security of her majesty's person and government, and of the succession to the crown of Great Britain in the Protestant line." These acts, though more than a hundred and fifty years old, are still the law of this District, except that the Government of the United States has succeeded to the allegiance which was formerly sworn to the queen of Great Britain; and our rule has furnished a fitting substitute for that oath, accommodated to the changes of govern ments which have taken place in this country since the reign of Queen Ann. Being thaз a court of the United States, vested with full power to establish our own rules for the admission of members to the bar, and for governing and regulating the court and the officers and suitors thereof, without accountability to any other court, it would seem that we should ourselves be the ultimate judges of all the law upon these subjects. And, in my judgment, this principle has been affirmed and settled by the Supreme Court of the United States in Secomb's case, 19 Howard R., 9. It is not to be inferred from this, however, that we are at liberty, in regard to these matters, to transgress against the Constitution of the United States at our pleasure. On the contrary, it is the sworn obligation and duty of the court faithfully to support that Constitution. As it regards in the said act prescribed." Garland had been admitted an attorney and counsellor of that Court at the December term, 1860. He subsequently committed treason against the United States by taking part in the late rebellion, but was pardoned by the President. He then presented his petition to the Court, asking permission to appear and continue to practice there under his admission of 1860 and the pardon of the President, without being required to make the oath prescribed by the act of January 24, 1865, and the rule of court made in pursuance of said act. The decision of the Court was that his application should be granted; and the grounds of this decision were, that the pardon granted by the President had blotted out the sins of his rebellion, as though they had never been committed, and that being thus innocent of all offence in the eye of the law, he could not be a proper subject for punishment, or of exclusion from the privileges of the court, which had formerly belonged to him. Mr. Justice Field, who delivered the opinion of the Court, says: "The effect of this pardon is to relieve the petitioner from all penalties and disabilities attached to the offence of treason committed by his participation in the rebellion. So far as that offence is concerned, he is thus placed beyond the reach of punishment of any kind; but to exclude him, by reason of that offence, from continuing in the enjoyment of a previously acquired right, is to enforce a punishment for that offence notwithstanding the pardon." I can have no controversy with the Supreme Court as to that doctrine. It merely teaches that Garland, having been already admitted to the bar before the commencement of the war, and having received perfect absolution for his offences committed during the rebellion, he was not subject to the operation of either the act of Congress or the rule of the court any otherwise | bers of that bar to take the oath, under penalty than one who had been loyal to the Government of forfeiture of their "previously acquired right." throughout the war. Ours has no such operation The facts in Garland's case required the Court to go no farther than this, but the opinion does go farther, and pronounces, in effect, that Garland would have been entitled to continue to practice in that Court, even without having been pardoned by the President for his treason, on the ground that to deprive him of the right to pursue his profession in that Court would have been a penalty inflicted for his offence, to which he was not liable at the time of its commis sion. It is true that one branch of the rule of the Supreme Court applied, like ours, also to persons asking for admission to that bar, and wo are told that the rule has been wholly rescinded -no part of it preserved-in consequence of the decision in Garland's case. This may be true, but we have received no judicial evidence to convince our minds of the fact, and if it has been done, it must have been for other reasons than those furnished by the opinion of the court in that case. In respect to the application of Magruder, the case is this: He is a native of Virginia, but for several years previous to the rebellion was a citizen of the United States, having his domicile in this District, and was a member of the bar of the late circuit court of this District. In April or May, 1861, he left us, and entered into the rebellion on the call of Virginia, and continued until the close of the war in armed hostility to the United States. tice in the Supreme Court of the United States since the decision in Garland's case was made. whose continued enjoyment he might demand at the hands of the court, and is unable to take the oath required by our rule. Although there is one passage in this opinion which seems to go even beyond this, and to advance the doctrine that the Court had no right to debar a man from admission to the profession on account of crimes previously committed, yet I am not disposed to believe that the Court in tended to advance or to advocate, even obiter, a doctrine so extreme as that. If such, however, be the fair construction of the opinion, (and nothing short of such construction will answer the object of either of the motions now under our He has since received the pardon of the Presiconsideration,) I am constrained to avow my un-dent for his offence, and been admitted to prac willingness to obey the doctrine thus promulged. In the first place, the facts in the case of Garland called for no such decision; and, in the sec- But the fatal objection to his admission to our ond place, having the absolute right ourselves bar is that he is now only applying for admission to prescribe our own rules for admission to the for the first time, and cannot furnish the requibar, as has been already shown, we are not re-site evidence of a previously acquired right quired to do violence to our convictions, in following such an interpretation of the Constitution, when given even by the eminent justices who concurred in that opinion. The opinion, In his case, too, there is an additional reason, in that respect, not coming to us with mandatory of great force in our judgment, which forbids his authority, I must for myself be permitted to admission, and it is this: On being admitted look upon it only as the opinion of five gentle- to the bar of the late circuit court, he was sworn, men, learned in the law, weighed against the among other things, "to support the Constitucontrary opinion of the four other gentlemen, tion of the United States," and should he be adequally learned and able, and against the judg-mitted to practice in the bar of this court, would ment of the whole legislative branch of the Gov-be required to take the same oath again. This ernment, by which the law was enacted; and whilst I acknowledge the importance of the principle that res adjudicata pro veritate accipitur, yet in this matter I am at perfect liberty to test the opinion of these five gentlemen by the application of that other maxim of the law, testimonia ponderanda sunt, non numeranda. Tried by this test, it appears to me that the preponderance of authority is not on the side of the doctrine of the Court's opinion on this point. In Fletcher vs. Peck, 6 Cranch, 87, Chief Justice Marshall says: "The question whether a law be void for its repugnancy to the Constitution is at all times a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case." I am of the opinion, therefore, that the decision of the Supreme Court in Garland's case, even if received as authority and interpreted in its widest latitude, falls far short of requiring us to declare our rule void for unconstitutionality. Our rule applies only to persons not yet admitted to the bar, and who, therefore, possess no "previously acquired right" of which its enforcement can deprive them. oath has a meaning, and was prescribed for an object. We understand that it requires him who takes it to support the Constitution of the United States as the supreme law of the land, in all cases in which its provisions come into conflict with the constitution or laws of any of the States, and in this sense to require a primary and paramount allegiance to the Government of the United States. Mr. Magruder has told us that in taking up arms against the United States he acted conscientiously, and indignantly repels the imputation that he had violated his oath to support the Constitution. He says that he regarded himself as under "duality of allegiance;" that his first and paramount allegiance was due to his native State, and his secondary and subordinate allegiance was due to the United States; and that it was in this belief, honestly entertained, he went into the rebellion, in obedience to the call of his State, although he was himself of the opinion that the rebellion was without any just cause. He acknowledges to have had no change of opinion on these points to the present hour. Were we now, with a full knowledge of these The rule of the Supreme Court was different facts, to admit him to take this oath, the cerefrom ours. It required persons already mem-mony would be a meaningless farce; we should swear him in one sense, whilst he would take the oath in another. It would be well, perhaps, that our rule on this subject should be so amended as to enable gentlemen whose native States may hereafter rush into rebellion without just cause to see at once the path of their duty, and so relieve their consciences from any embarrassments originating in fanciful theories about a "duality of allegiance." Opinion of the Supreme Court on the Mississippi Application for an Injunction against the President and other officers, April 15, 1867. Chief Justice CHASE delivered the opinion of the Court, as follows: A motion was made some days since on behalf of the State of Mississippi, for leave to file a bill in the name of the State, praying this Court perpetually to enjoin and restrain Andrew Johnson, President of the United States, and E. O. C. Ord, general commanding in the district of Mississipi and Arkansas, from executing or in any manner carrying out certain acts of Congress therein named. The acts referred to are those of March 2 and March 25, 1867, commonly called the reconstruction acts. The Attorney General objected to the leave asked for upon the ground that no bill which makes the President a defendant and seeks an injunction against him to restrain the perform ance of his duties as President, should be allowed to be filed in this Court. This point has been fully argued, and we will now dispose of it. We shall limit our inquiry to the question presented by the objection, without expressing any opinion on the broader issues discussed in argument, whether in any case the President of the United States may be required by the process of this Court to perform a purely ministerial act required by law, or may be held answerable, in any case, otherwise than by impeachment, for crime. The single point which requires consideration is this: Can the President be restrained from carrying into effect an act of Congress alleged to be unconstitutional? It is assumed by the counsel for the State of Mississippi that the President, in the execution of the reconstruction acts, is required to perform a mere ministerial duty. In this assumption there is, we think, a confounding of the terms "ministerial" and "executive," which are by Lo means equivalent in import. A ministerial duty, the performance of which may in proper cases be required of the head of a department by judicial process, is one in respect to which nothing is left to discretion. It is a simple, definite duty, arising under conditions admitted or proved to exist or imposed by law. The case of Marbury vs. Madison, Secretary of State, furnishes an illustration. A citizen had been nominated, confirmed, and appointed a justice of the peace for the District of Columbia, and his commission had been made out, signed, and sealed. Nothing remained to be done except delivery, and the duty of delivery was imposed by law on the Secretary of State. It was held that the performance of this duty might be enforced by mandamus issued from a court having jurisdiction. So in the case of Kendall, Postmaster General, vs. Stockton and Stokes, (12 Peters, 527.) An act of Congress had directed the Postmaster General to credit Stockton and Stokes with such sums as the Solicitor of the Treasury should find due to them, and that officer refused to credit them with certain sums so found due. It was held that the crediting of this money was a mere ministerial duty, the performance of which might be judicially enforced. In each of these cases nothing was left to discretion. There was no room for the exercise of judgment. The law required the performance of a single specific act; and that performance, it was held, might be required by mandamus. Very different is the duty of the President in the exercise of the power to see that the laws are faithfully executed, and among those laws the acts named in the bill. By the first of these acts he is required to assign generals to command in the several military districts, and to detail sufficient military force to enable such officers to discharge their duties under the law. By the supplementary act other duties are imposed on the several commanding generals, and their duties must necessarily be performed under the supervision of the President, as Commander-inChief. The duty thus imposed on the President is in no just sense ministerial. It is purely executive and political. An attempt on the part of the judicial department of the Government to enjoin the performance of such duties by the President might be justly characterized, in the language of Chief Justice Marshall, as an absurd and excessive extravagance." It is true that in the instance before us the interposition of the Court is not sought to enforce action by the Executive under constitutional legislation, but to restrain such action under legislation alleged to be unconstitutional. But we are unable to perceive that this circumstance takes the case out of the general principle which forbids judicial interference with the exercise of executive discretion. It was admitted in the argument that the application now made to us is without a precedent, and this is of much weight against it. Had it been supposed at the bar that this Court would in any case interpose to arrest the execution of an unconstitutional act of Congress, it can hardly be doubted that applications with that object would have been heretofore addressed to it. Occasions have not been infrequent. The constitutionality of the act for the annexation of Texas was vehemently denied. It made important and permanent changes in the relative importance of States and sections, and was by many supposed to be pregnant with disas trous results to large interests in particular States. But no one seems to have thought of an application for an injunction against the execution of the act by the President. And yet it is difficult to perceive upon what principle the application now before us can be allowed, and similar applications in that and other cases could have been denied. The fact that no such application was ever before made in any case indicates the general judgment of the profession that no such application should be entertained. It will hardly be contended that Congress can interpose, in any case, to restrain the enactment of an unconstitutional law, and yet how can the right to judicial interposition to prevent such an enactment, when the purpose is evident and the execution of that purpose certain, be distinguished in principle from the right to such interposition against the execution of such a law by the President? The Congress is the legislative department of the Government; the President is the executive department. Neither can be restrained in its action by the judicial department, though the acts of both, when performed, are in proper cases subject to its cognizance. The impropriety of such interference will be clearly seen upon consideration of its probable consequences. Suppose the bill filed and the injunction prayed for be allowed. If the President refuse obedience, it is needless to observe that the Court is without power to enforce its process. If, on the other hand, the President complies with the order of the Court, and refuses to execute the act of Congress, is it not clear that a collision may occur between the executive and legislative departments of the Government? May not the House of Representatives impeach the President for such refusal? And in that case could this Court interpose in behalf of the President, thus endangered by compliance with its mandate, and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would the strange spectacle be offered to the public wonder of an attempt by this Court to arrest proceedings in that court? These questions answer themselves. It is true that a State may file an original bill in this Court; and it may be true, in some cases, such a bill may be filed against the United States. But we are fully satisfied that this Court has no jurisdiction of a bill to enjoin the President in the performance of his official duties, and that no such bill ought to be received by us. It has been suggested that the bill contains a prayer that if the relief sought cannot be had against Andrew Johnson as President, it may be granted against Andrew Johnson as a citizen of Tennessee. But it is plain that relief against the execution of an act of Congs by Andrew Johnson is relief against its execution by the President. A bill praying an injunction against the execution of an act of Congress by the incumbent of the presidential office cannot be received, whether it describes him as President or simply as a citizen of a State. The motion for leave to file the bill is therefore denied. In the case of The State of Georgia against certain officers, the Attorney General makes no objection to the policy of the bill, and we will, therefore, grant leave to file that bill. Mr. Sharkey. If the Court please, the objec tion to the bill which I attempted to file seems to be that it is an effort to enjoin the President. The bill is not filed, and 1 can reform it to suit the views of the Court, and present it again. The Chief Justice. Leave to file the bill is refused. When another bill is presented it will be considered. Mr. Sharkey. Do I understand the Court to say that the application can be made on Thursday? The Chief Justice. On Thursday. This subpoena was issued in the case, April 16 ̧ 1867: The State of Georgia, complainant vs. Edwin M. Stanton, Ulysses S. Grant, and John Pope, defendants. In equity. The President of the United States to Edwin M. Stanton, Ulysses S. Grant, and John Pope, greeting: For certain causes offered before the Supreme Court of the United States, holding jurisdiction in equity, you are hereby commanded that, laying all other matters aside, and notwithstanding any excuse, you be and appear before the said Supreme Court, holding jurisdiction in equity, on the first Monday in December next, at the city of Washington, in the District of Columbia, being the present seat of the National Government of the United States, to answer unto the bill of complaint of the State of Georgia in the said Court exhibited against you. Hereof you are not to fail at your peril. Witness: The Honorable SALMON P. CHASE, Chief Justice of the said Supreme Court, at the city of Washington, the first Monday of December, in the year of our Lord one thousand eight hundred and sixty-six, and of the Independence of the United States of America the ninety-first. D. W. MIDDLETON, Clerk of the Supreme Court of the U. S. XXI. RESOLUTIONS OF NATIONAL AND STATE CONVENTIONS. Of the Philadelphia Fourteenth of August Con- | delegates from every State and Territory in the vention. They were reported August 17th, by Hon. Edgar Cowan, chairman of the committee on resolutions, and were unanimously adopted: DECLARATION OF PRINCIPLES. The National Union Convention, now assembled in the city of Philadelphia, composed of Union, admonished by the solemn lessons which, for the last five years, it has pleased the Supreme Ruler of the Universe to give to the American people; profoundly grateful for the return of peace; desirous, as are a large majority of their countrymen, in all sincerity, to forget and forgive the past; revering the Constitution as it |