We are then told with admirable composure, that our clients are not punished for the acts mentioned in the oath, or even for the refusal to take it, but for continuing the practice of their professions without the proper qualification. This is something like the argument of the man in the "Antiquary," to prove that there was no arrest for debt in Scotland; it was only an arrest for contempt of the king's supposed command to pay the debt. Really the argument, if it may be called such, can deceive nobody. The State does indeed punish the party for continuing the practice of his profession without a certain qualification; but that qualification is proof, by his own oath, of his innocence of some other thing, which other thing was not punishable when it took place. This amounts to punishing for the latter, and that too without a trial; and brings us back against both the constitutional prohibitions. Observe the process. An act is performed to-day, not forbidden by the laws; to-morrow it is convenient to punish it, but, to make the punishment sure, it must be effected without a trial. That is easy enough; the trial is avoided by assuming guilt, if not denied on oath, and the innocent act is punished, not by declaring its punishment in terms, but by declaring that it shall be a disqualification for something else, necessary or important to be done, and punishing for the latter. You can thus always reach every act, good or bad, which any man may have committed during his whole life, by debarring him from something necessary to his happiness, unless he does, what he can not do, swear that he has not committed it. By carrying out the theory to all its possible consequences, you may even take life; you have but to cut a man off from water or food, or something else essential to his existence, unless he first qualifies himself by an oath. If you can make a declaration of innocence the necessary qualification for the enjoyment of any of the rights or privileges of society, you need not resort to the slow and uncertain process of judicial trial; and if you can make this declaration of innocence reach acts legal as well as illegal, you can punish anybody for anything past, forbidden or not forbidden. To such an absurdity does the reasoning of our learned friends on the other side inevitably tend.

And here, if the Court please, I leave the cases of my clients.

THE MISSOURI TEST-OATH.

117

These are important cases to them, and not to them only, but to the whole people of Missouri. That State was born in conflict. The dispute about her admission into the Union seemed likely to divide the Union. Slavery, which she then warmed in her bosom, stung her, viper that it was. The poison entered her vitals, and she has been purified from it only by blood and fire. An avenging Nemesis decreed that her deliverance should be effected through suffering, proportionate to her error.

She is now free. This oath, so vindictive and repulsive, is her last deformity. Let her be rid of that, and she will stand erect as well as free.

My clients, defeated at their own firesides, seek here protection. They know that to this chamber they can come for shelter, as fugitives of old sought refuge beside the altar. You stand the ultimate arbiters of constitutional rights; immovable, however tumultuous passions may surge and beat around you, the one stable and permanent element in the government of the country. Presidents appear and disappear like shadows. Senators and Representatives enter the doors of their chambers, and go out again, no one knows whither. You remain the ornament and defense of the Constitution-decus et tutamen.

CONSTITUTIONALITY OF THE RECONSTRUCTION

ACTS.

THE MOCARDLE CASE.

1868.

On the 12th of November, 1867, a writ of habeas corpus was issued from the Circuit Court of the United States for Mississippi, requiring the production of William H. McCardle, who was detained by the general commanding the District of Mississippi for trial by a military commission, under the alleged authority of the Reconstruction Acts, upon charges of "disturbance of the public peace; inciting to insurrection, disorder, and violence; libel; and impeding reconstruction." The Circuit Court adjudged that McCardle be remanded to the custody of the military authorities, and, pending his appeal to the United States Supreme Court, he was admitted to bail. One question before the Supreme Court was whether the appeal could be maintained under the Act of Congress of February 5, 1867, which provided that “from the final decision of any judge, justice, or court inferior to the Circuit Court an appeal may be taken to the Circuit Court of the United States for the district in which said cause is heard, and from the judgment of said Circuit Court to the Supreme Court of the United States." Before the case was finally decided the Act of 1867 was repealed, and the Supreme Court dismissed the appeal, although the case had been argued upon the merits.

This case attracted great attention throughout the country, and was argued with great ability. Judge Sharkey and Robert J. Walker, of Mississippi, Charles O'Conor, of New York, and Jeremiah S. Black, of Pennsylvania, appeared with Mr. Field for McCardle; and Matthew H. Carpenter, of Wisconsin, Lyman Trumbull, of Illinois, and Henry Stanberry, the Attorney-General, appeared for the other side. It is stated that, after the argument, it became known that the case would be decided in McCardle's favor, unless the Act of 1867 were repealed. A postponement of the final decision was determined upon, against the following protest of Justices Grier and Field:

"This case was fully argued in the beginning of this month. It is a case that involves the liberty and rights not only of the appellant, but of millions of our fellow-citizens. The country and the parties had a right to expect that it would receive the immediate and solemn attention of this Court. By the postponement

of the case, we shall subject ourselves, whether justly or unjustly, to the imputation that we have evaded the performance of a duty imposed upon us by the Constitution, and waited for legislation to interpose, to supersede our action and relieve us from responsibility. I am not willing to be a partaker, either of the eulogy or opprobrium that may follow, and can only say: 'Pudet hæc opprobria nobis, et dici potuisse; et non potuisse repelli.'"

No further attempt was made to procure the judgment of the Court upon the constitutionality of the reconstruction acts, but McCardle was discharged.

May it please the Court:

If I were ambitious to connect my name with a great event in the constitutional history of my country, I should desire no better opportunity than that which this case affords. What is here transacted will remain in the memory of men long after the feet which are treading the halls of this Capitol have made their last journey, and the voices now so loud are for ever silent. Although the part borne by the bar in this transaction is inferior to yours, yet even they assume a portion of the responsibility, while the words that are to fall from you will stand for ever in the jurisprudence of the land.

In approaching the argument of so great a cause, it is of the first importance to exclude from it every extraneous or disturbing element. We should be lifted, if we may, above the strifes and passions of the hour into a serener air, overlooking a wider horizon. With the struggle for office, with the rise or fall of parties, with the policy of President or Congress, we have nothing to do. Within the walls of this chamber of justice we look only to the law and to the Constitution. That, however, does not prevent our taking care that the independence of the bench and of the bar be not menaced; or, if that happen, that the menace be repelled. I say this the rather because one of the gentlemen who argued against us saw fit to declare that it was the duty of counsel to admonish the Court. Admonition of what? Of impeachment, because you differ from Congress upon a constitutional question; of packing the Court at some future time; of enactment that two thirds or three fourths of the whole shall be necessary to decide, or the exclusion of the Court from its chamber? Admonition from whom? We know that the President has none to give; he disclaims it. Admonition from Congress? I have the highest respect for the members who perform the function of legislation for this country;

but they are representatives, all of them, of States or districts; and when I reflect that from the great States of New York, New Jersey, Pennsylvania, Ohio, and California, they represent but a minority of the people, and that from ten States there are no representatives in either house; and when I reflect, further, that this legislative department for nearly two years submitted to the suspension of the habeas corpus by the Executive alone; that afterward, when it passed an act on the subject, it suffered the Secretaries of State and War to disregard and disobey its injunctions; that it enacted, besides, "that any order of the President, or under his authority, made at any time during the existence of the present rebellion, shall be a defense in all courts to any action or prosecution, civil or criminal, pending or to be commenced, for any search, seizure, arrest, or imprisonment, made, done, or committed, or acts omitted to be done, under and by virtue of such order," a law which has scarce a parallel in history, save that of Denmark two centuries ago, which made a formal surrender to the crown of all right and function of government; when I reflect on these things, the admonition, even were it otherwise proper, which it is not, appears to me shorn of all its force.

As a pendant to the admonition, we are told that this Court is not a coördinate department of the Government. Not a coordinate department? Is it meant that there is no department coördinate with Congress? This is the first time when it has been suggested here that the judicial department is not coördinate with either of the others. And certain I am, that in the great Convention, where sat the Conscript Fathers who made this Constitution, such an idea never entered. For I find that at the beginning, for the original plan, it was resolved, as the first resolution of the Convention, that "it is the opinion of this committee that a national government ought to be established, consisting of a supreme legislative, executive, and judiciary." Turning to the comments of the founders of the Government, I find in the "Federalist," the forty-eighth and fifty-first numbers, this remarkable exposition, by Mr. Madison, written as if in the spirit of prophecy :

"I shall undertake in the next place to show, that unless these departments be so far connected and blended as to give to each a constitutional