The tri-weekly news. (Winnsboro, S.C.) 1865-1876, May 26, 1866, Image 1
yrTE TNREEKLY NEV.1
By ~ al.ard D esots&C. WINNSBsORO, S. C., SATURDAY, MCPRNING, MfAY 6, 1866. [VOL. III.-NO. >0.
711 TilI-EEKLY NEI
The Test Oa .
1ut it may be said that larg- numn.
Iere of porson, aintd am1onig tim many
lawyers, have boven ginilhy of reason, or
of elcouraging rebieliol a1gainlst the
Government of the United States; and
that Congress has adopteil this mole of
compelng each to discover under oath
whethewr lie is one of' the mnber ; and
if lie refuses to Iak4 Ithe discovery, t,hat
lie shall be presuied to be guilty, and
the confiscation of his property in his
profession shall be the pteall.v. Trulv,
this is what Congress has attempted to
do, but 11poln What principle, and by
what right ? If hie has been guilty of' a
crim, it. is the right of tle Goveri.
Inlt. to have him prosecuted, colnviced
and pmiiished by tie judgwimei. of his
pemrs, or the law of the lauid; but with.
out such convictioin, the infliction of
cor poreal punishmeniit upon him, or the
conlfisc:ltion of his estate, or any part
thereof, is tinauthorizvd tyranny ; nor
las the Goverinment any right to co.
peA liml) to appeai and' give testitony
againt himself, to aid it it procnrin'g
such conviction. Nemo tenebatur pro.
dt're so 1))SIut is the well established
rule of tho coniion Iaw, and is thius
expo,inded by a verv able and accurae
Aterican anthor: That when the an.
swer will have a tenidincy to expose the
witness to a penal liabilt,y, or to any
kind of punislitmet, or to a criminal
civrge, or to a forfeiture of his estatw,
the wi-ness is not bound to aniiswer.
And if the fact to which le is interro
gated formus but one link in the chain of
14st.1111niv which is to convict hint, Ito is
protected. A nd if tie witiess declines
answeriing, no iterference of the truth
oif the fact is perititfed to be drawn
fr.uin tht Circumstance. [I Greeil.
EV*.. See. 551 -4153.]
''he Constitittion of the United
States, as originally formed, contained
na provision guaraiteeing ,to thu citi
en protection agailnst. the violation by
Congre-s of this great fit principle.
But this protection is carefully provided
inl thie fifth article of ihe amnedmtents,
propoit:. at the first seion of the first
Cown0gr4e4, IhicL was adoptei inl these
wvorls
No person shall be held to answer for
a capital or othierwise infanous criime,
unless on a presentment, or indicttmot of
a grand jiiry, except iii cases arising in
the land li naval forces, or in tie militia
whni in acIuMl service in time of war
or piublic danger ; nor shall any person
be siubiject for thi satn. offence to be
twice put. t, jeovarly of lifo or limb; nor
shall Ie be compelled in any criminal
case to be a witness against hiiinself, or
be deprived cf life, liberty, or prOpert,y
,without. duo process of law ; nor shaill
privatoti property be taken for public use
without just com1pensationl.
This is the fnItdamentall law of this
land, and aniy act of Congress in viola
tioni of, it is iloperttive, nu11ll and void
and it is the solemtl diuty of the courts so
to decla ro it. And 1 beg your Honor
to bear in raind, that this article of the
Constitution not only denies to Congress
the power to compel aiiy one to be a
wittness to criminate himself, but it do
clares plainly and positively. thIt io
oine sh'all be deprived of life, liberty or
property without duo process of law,
giving property precisely the samo pro
tection which it gives to life or liberty.
- -as an attorney it law a property in
hi's profession ? If so, the Consatitution
.of tho Umited States, as well as .Magna
O/haro, duplarea that he shall ngQt be de
prived of it withont due process of' law.
, .An.attorney at law ,is an omcer be.
Joingiiog to the courts of justico, [I
Bacon'si Abr. 474.j An offcer is one
whlo is lawfully imvested with ani offce.
7 Bacon's Abt. 279.] Offces which
arei i rightt to exercise a public or a prn
vate emp;oiont, anid to take the fees
aund emolu'ments thereto belonginig, are
aliso incorporeal liereditamnits, wheithier
public, is those of magistrates, or pni
vate, as of b)aliffs, receivers aad thte lik'e,
.lfor.a man may have an estate in them,
e'iuher to hinrtself andi his heirs, or for
life, or for a (,erm of years, or for uduring
j)leasnro only." [Bflackston'st Coi. #9.J
By thiese quotations, it appears that a
mian may have an estate in an office.
WV hat is' the. meauning of the word estate?
In its most exw'uSiVe senseC, it is applied
to signtify everything iii which .riches or,
fortuno may coi*ist, and includes person'
alh and( real property. [Bonuvior's Law
oe 510.] Accordinig to Judge Black'
StOne, herelitaments are a species of
estate, andl he declares an ofice, to be an
incorporeal hereditanint
IA attorney at law is then. according
to the athorilies9, an otficer of the
cirts, leigally vosted with nit oflice.
Th t. ollice is aII estate, which may he
for llf-, or for a term of years, or during
plea-ure. That estat is property. And
th, Constitlltion of the United States
says tio one shall bo deprived of proper.
ty without. due proce.s of' aw.
It miitt.rs not whetier it is att.empted
to he done by means of a test. oath, cQm.
pelling a party to criminate himself, or
in what imagiiiablo form, other than by
the lirocess of I;aw, it is alike void, what
ever may b the imvans resorted to for
its accoimplisb>n.nt. What pow then
has Congres to deprive an attorney of
his property in his prolession, siplV
eaIIte l refise to swear whether li
has or has not violated the crimmal law
of the land. when lie has neitier been
charg-ed with, indictd, or convicted of
any such violaion. I deny that it has
such a right Tiis attempt is i viola
tion of the fundani-ital law, as expound
ed by the highest, authorities, and s
absurd within itself; and I know of no
rules governiing icourts which could justi
fy yoIr Ilonor in the enforcement of
any such enactin-nt. Tie statute is a
nullity, an'I mn ut, in my opinion, be ,>
held whenever and wherever it is
broight in question before any intelli
gent court.
I furt.her invite your Iionor's rtteii.
tion to the fact, the office of Attorney
aiid Councellor is recognized as well by
the Coiistitili-ion and laws of the Umited
States as by the cominon law.
In the 6hli article of the amendments
to tilhe Conil;,ituhion, it is declared, flat
in all criminal prosecutions the accused
shall enjoy the right of a speedy and
public trial by an impartial jury of tho
State or district wherein the crimes shall
have bean committed; to be iuformed
of the nature and cause of the accusa
tion ; to be cilfrontd with the witness.
es agaiist. him ; to have compulsory pro
cess for obtaining witnesses in his favor,
and to have the assistance of counsel for
his defence.
The judicial act of 1789 provides
that inl the courts of the United States
the parties may plead and matiage their
own cases personally ; or by the assist
ance of such couinsel or attorney at law,
as by the rules of said courts respective
ly, shall be permitted to manage or con
duct causes thervinl.
Tile court will observe that the Con
gross of 1789 did not attempt to pre.
scribe the qualifications of the attorn1ey,
or to say who shall or shall not., prac.
tice in the courts, or for wh;t causo an
attorney shall be stricken.from the rolls.
That is left, .as it should be, to the
courts or principal officer, to which the
office of attorney is incident to bo do.
termilined by rule of courts.
'ITo office of attorney at law is clear
lv incident to that of a court, or of the
judgo or jndges of the court ; and the
incident o!icer is only amenable to the
primcipal officer, and smay be removed
by him. Congress has n;o such powers.
In 7 Bacon's Abr. 281, and the cases
thero cited, the law upon this subject is
laid down in the following vords.
Wherever an office is incident to an.
other, such incident office is regularly
grantiblo by Iim who hath the principal
office. Or. this foundation it hath been
held that the King's grant of the offico
Conity Clerk was void ; it beir.g insepa.
rably incident t.o the oflie of sharifl',
and conld not by any la w or contrivatice
be taken away from him,
If the Kinig's grant of 8such incident
office was void, an so hleld by his own
co.urts, and it could inot be taken' away
from theO principAl offce by any law er
conltrivance, it follows that the King
and Parliament together could not
rightfully do it. Where then does the
Cotngress of the Uniit.ed States, restrain,
edl by a written Constitultion, get power
to do thlat whih the Iting and ParHti.
ment together in Great Britain, *lt.host
such rest,raint, have tto power to do ?
The omie of county clerk in lVngland
whbich from ime iimemorial hats been
an incident of the offie of Shoriff; is
cottainly no more intsoparably connected
witht the sheriff's offoe thatn is the,omco
of attorney in this country with thab. of
the court,s,.an4 yet, the trendent pcg
or of the'. ing and P'arliamient .gannot,
without thed utter disregard of all prtnci.
ple and preedl, deprive the0 pri,nel.
pIe omie of this cotitrol of the incidefiL.
I do not dleny tltat. Congress may lay
down general rulps regulating. the pro.
ceedings of the courts, and the cond4ct
of attorneys ; but I do deny thiat it can,
without umilirpatioi, destroy thd cotasti
tuted cotirts, or d4prive thon of their
legitimate control over the ittorneya ;
or that it can deprive ti attorney of his
office when he has been convicted of
violating neithor tho lIsv of 'the land,
nor the rules of the cout.
But I may be asked, - if there exists
no power in the.Government to deprive
an attorney of his right to practice. I
reply. unhesitatingly, that thoro does not
unless he has forfeited it by his own
misconduct, in' the violation of the law
of the land, or the rules of the court, of
which he ui.ust have been convicted by
duo cQuIIrse of law. when the. court of
which he is an officer, and to which
alone he is atnenable, may sti-i4 eis
name from the rolls. As he ii admitted
by the court, as an officer of court, with.
out limitation as to time, or during good
bhIvavior, lie may hold the office for
life unless le forfeits it by misbehavior,
of which he can never be convicted
without trial, In Bacon's Abr.. Vol.
7, page 308, the law on this subject- is
laid down in the following claQnr strong
langage :
"If an office be granted to a man to
have and enjoy so long as he shall be
have himself well in it, the granted hath
an estate of freehold in the office ; for
since nothing but his misbehaviors can
determine his iiteresq, no m1an can fix
a shorter term thian his lire ; since it
uit be his own act which the law does
not presume to foLsee,) which only
can make his estatol of shorter contin
tianice thanl his life.".
This is the tenure: by which the law.
yer holdi his office. And it is preciselv
the same by which the English Judges
and Judges of the Courts of the United
Sr.ates hold thoit ofices. Who ever
iarl of a Judge of 'the United States
Courts having been dismissed from office
withtut previous ial and conviction of
misbehavior ?
I will now proceed to show, (while
the Imiode of trial is not the sae,) that
this is the rule apilied by courts to t.
torneys An attorney mny be struck
from tho rolls by any" ill pr(actice, 'at
tended with frtud ihid corruption, and
committed against tle obvious'rules of
justice and.' common honesty. [ Ba
con's Abr., 586.]
This is the general rule of law upon
the subject ; but as the following quota.
tions will show. he will be heard when
the charge laas been preferred, and must
be canvicte befqre lie will be deprived
of his offico.
When an attorney has been fraxdu-.
lently admitted, or convicted aftpr ad.
mission of felony or other offence,
which renders him unfit to be continued
as an attorney, he may be struck off the
rolls.
And if an attorney practices after he
has been convicted of forgery, perjury,
subordination of perju ry, ot Wommbn
baratry, lie is liable to be transported.
[Sano authority, page 508.]
An attorney will be struck front the
rolls when ie has been convicted. of
subornation of perjury. I t Mcodrd's
S. (. Reps. 879.]
But the Court will not proceed
against such attorney before conviction.
[2 lialsted, 192.]
An attorhey convicte of felony and
punished for it was struck ofr th'orolls,
[Exrte 'iownall owpr's Reps.
829.
Onl a mere allegation that. an ator.
ney has been 'guiley 'of larteny, his'nuanno
will niot be stricken off the rolls :ble
convictionz must prece4e, [B~acon's
Atir., 506.] .
These are the rules- whiblh' gvera in
eases whean it i* propaaed t0' gti1$ an'at.
tothoy from the rolls'* (dr violtiona of
public law, wvhich will only be done up
on his gon victlog of spcea viQlat,ps. As
lhe is an ofticer of thei Cpurt, and amena.
ble to theCourt, he may. -be struck for
a willfil vjohmttion of a 'nln of" Conrty
without a heanag, nor i thil: hu guilt' is
establishmed.. "I n ~ *
A heavy 'udgmienA h4 bnoobt#n.
ea iii the 11 nois' Sipsyrb e ourV by a
North Carolinia'hai 1857, intrust
ed a dnln of'mnoney ft# i'stnite't't a
Chicigod rut egat&' brok r, Tire boker
ttuned it to his own'nde 'dtarg thle 'ier
andinow 'claims that thfe Mafietih at
justified himn ini so doing. ILhFeurt'gine
heavy dam uge for thc plantift
The Editbtirgh Review mentions that
the whole' of Tennyson's "In Memori.
am" hAs been traislated into Latin
elegino v6tse, in a rilknh(t which the
reviewer considers woithy bt public nu
Lice. The work has been printed for
private circulatioh oWily, and the laure
ate has not consented to sanction its
publication, "because he nppear.to hIave
boniceived that, the translations would
interfere with his own copyright."
George Ward, the oldest Old Fellow
i the 0drAI, died recently at Preston,
gland. Ie was born in 1789, and
joined the order of Odd Fellows in 1815.
He was one of those who signed the
first "dispensation" whiah catno to
AmUrion.
Mrs. Thos. Carlyle, whose sudden
demiso we have already mentioned, was
huriedat. Haddington, ier native p'ace,
on the 25th. In accordance with the
Scottish practice no service was rend,
but Mr. Carlyle throw a handful of earth
on the coflin after it had been deposited
in the'grave.
Capttin Ap Catesby Jones, who left
tho United States navy for that. of the
ConfederateS aed commanded the iron.
clad Virginia, has ,e1V appoi:ted Chief
of Ordnance of the Porvin inavy.
The Lafayette Herald says: "A
young lady of this city, who'has vng
been in the habit of eating arsonir; for
the purpose of beautifying her comlex
ion, yesterday took an overdoso of the
poisqn, which came near killint. hetr. A
physigian, was called in and succeeded in
an ving her life. She at first refused L to
tell whlat was tile matter wit her, but.
fearing that she was going to lio, o,wned
up. Tho habit of arsenic-eatin; is very
common anong young ladies who deire
to improve their complexion. The ex
perience' of this aspirant for beanty'
should. prove a warning to thei."
Robert Tayler writes to an Alnbann
paper-that Maury's 'stimate cf South.
ern losses durit,g tlte war at seven
thousand million is too high ; C'ie real
loss,not exceeding thirty-five hundred
iillions.. Tyler's estimate i as follows;
By emancipAtiont *),700,00,000; ex
pnse of tho war, $60;000,000,;' d.
struction of private property, $700,000,
006 ; additional Federal taxation, *4500,.
000,000; total, $3,500,000,000.
A Binont PVUR'r'FhiR. DAv13s's PRI
so4 LI 'mr.-NMr. Davis is supplied with every
thing in the shape ofo reature comforts; his
faro is as good as any first-class hotel could
offer (being supplied from tho table of Post
Surgeon Cooper.) He smokes the most fra
.grant liavanas, and has aeoss to the libra
ry of the fort. Mrs. Davis canl visit him'at
all hours during the day. and un restraint
is placed upon their interviews. He has his
regular walks ont the ramparts of the fortifi
cation, and in Iis perambulation he' is not'
even interrupted by idle curiosity-seekers'
who may perchance gain admittance inside
of the fortress, a recent order having beew'
issued prohibiting persons ascending tile
parapet while Mr. Davis is out walking.
Being well supplied with the dally jour
nals, hepays great attention to all they
contain. From this source he became no
quaintedl with the fact of his indictment by'
the grand Jury lately in session at Norfolk.
Instead of being downtast through this cir..
oumislance. he seems to- be elated at the
prospect of a speedy trial'. He has vegained
to a wonderfal extenir some- oA. his old-time'
oheerfulnesq an4 vivacity, and'does not even'
care to 'conceal'it. Setoredly tv day' passes
but some present flw Mrs Davir,. uefut for
her ostic- houseloldt arrives;'andijudg
int fro4 the- spnekle of her eye' when tie
artile-io opened, it must cause' her the
greatept pleapuTo- to know that she has so
man,y friend and admirrs.-C6orrespondent
of lAT Na York World.
' 1sAn1*W or' CoL. OaR.-Our citizens
will regrot o-learu that liis Excellency tile
Governor took ~Is departuro yesterday
maorning for his hme In' Anderson, whlere
he' ut'potes -resnaning 'fer several weeks.
'The onerous dutiea-whicoh: he hns been come
polledi to perferm' hoe in restoring the St ateo
t6eherold' peition, leave made' ft' necessary
that,be seodd attend to the recoperation of
his own 'liealth. He wills, htowever, combine
bitsiness *tEst 'pleiete.' tnd' visit the vari
ous' putbii'wees hin the npsr port,ion of.
the e,er at/ G'eenvllle ap eder Springs.
f6r' tte'ptalioe! of ntiakng hheself'familiar'
with the wanse,'and taking fich action as
may be requre4a tlhe premises, The
energ putfort Ilis- Escelleney since
lisdodlt tett bernator'ial chair has
wh4endeftin atQ *s*Ugdegree, to the bene
fit of South Carolinwi--. grlinian,.
Titx FanDn'AL DSAD---si' worli. of re
movng o Atiaon Ceptpry the (lead
boiso odeso h Army of the 'Foto
inae, wha died trota disease hdfd were killed
d~nrIng the perly years of the .war', w be:tbe
army was en oanlped In theq vioinity so this
eity; Ed'ferwdhis hke'been pomplet ed.
Tltsw weeld,678 odies dis5e6trond and
rem9od. Coptains 1 . lyes, A, Q. M.,
who'had chargo of' that work, has beon as
signedh on similar duty at It.ihmnnAd
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