Ex Parte Garland

The citation for this case is 71 US (4 Wall.) 333.

Augustus Garland of Little Rock, Arkansas, was an attorney admitted to practice before the Supreme Court of the United States in December of 1860. In May of 1861, Arkansas claimed to have seceded from the United States and joined the confederacy. Garland became a confederate politician, serving in the confederate House of Representatives and later Senate. “On the 2d of July, 1862, Congress, by ‘An act to prescribe an oath of office, and for other purposes,’ enacted: ‘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 departments of the public service, excepting the President of the United States, shall, before entering upon the duties of such office, 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, not 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 with the United States, hostile or inimical thereto. And I do further swear (or affirm) that, to the best of my knowledge and ability, I will support and defend the Constitution of the United States against all enemies, foreign and 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;’ &c. ‘Any person who shall falsely take the said oath shall be guilty of perjury, and, on conviction, in addition to the penalties now prescribed for that offence, shall be deprived of his office, and rendered incapable forever after of holding any office or place under the United States.’

“On the 24th of January, 1865, Congress passed a supplementary act extending these provisions so as to embrace attorneys and counselors of the courts of the United States. I t is as follows:

” ‘No person, after the date of this act, shall be admitted to the bar of the Supreme Court of the United States, 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, or of the Court of Claims, as an attorney or counselor 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 of attorney, unless he shall have first taken and subscribed the oath prescribed in ‘An act to prescribe an oath of office and for other purposes,’ approved July 2d, 1862. And any person who shall falsely take the said oath shall be guilty of perjury, and, on conviction,’ &c.

“By the Judiciary Act of 1789, the Supreme Court has power to make rules and decide upon the qualifications of attorneys.” [71 US 333, 334-335]

On July 15, 1865, Andrew Johnson gave Garland a full pardon and amnesty, and Garland returned to his law practice in Little Rock, and as part of that practice he wanted to practice before the Supreme Court of the United States. “Garland resorted to the only alternative available to him. He petitioned the Supreme Court for permission to continue his practice before it without taking the oath required by the January 25, 1865 [sic] act. He explained to the court that he was unable to take the oath because he had held offices in the Confederate government. He rested his application upon two grounds: first, the Act of January 24, 1865, so far as it affected his status with the court, was unconstitutional and void; second, if this act were constitutional, he was released from compliance with its provisions by the pardon and amnesty granted him by President Johnson.” [Robert Bruce Murray, Legal Cases of the Civil War, p. 246] Garland didn’t have to file a case because the Supreme Court controlled who was able to practice before it. Justice Stephen J. Field delivered the Court’s opinion on January 14, 1867. It was a 5-4 decision.

Justice Field begins by discussing the legislation and the required oath. “The oath prescribed by the act is as follows:

“1st. That the deponent has never voluntarily borne arms against the United States since he has been a citizen thereof;

“2d. That he has not voluntarily given aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto;

“3d. That he has never sought, accepted, or attempted to exercise the functions of any office whatsoever, under any authority, or pretended authority, in hostility to the United States;

“4th. That he has not yielded a voluntary support to any pretended government, authority, power, or constitution, within the United States, hostile or inimical thereto; and,

“5th. That he will support and defend the Constitution of the United States against all enemies, foreign and domestic, and will bear true faith and allegiance to the same. This last clause is promissory only, and requires no consideration. The questions presented for our determination arise from the other clauses. These all relate to past acts. Some of these acts constituted, when they were committed, offences against the criminal laws of the country; others may or may not have been offences according to the circumstances under which they were committed and the motives of the parties. The first clause covers one form of the crime of treason, and the deponent must declare that he has not been guilty of this crime not only during the war of the Rebellion, but during any period of his life since he has been a citizen. The second clause goes beyond the limits of treason, and embraces not only the giving of aid and encouragement of a treasonable nature to a public enemy, but also the giving of assistance of any kind to persons engaged in armed hostility to the United States. The third clause applies to the seeking, acceptance, or exercise not only of offices created for the purpose of more effectually carrying on hostilities, but also of any of those offices which are required in every community, whether in peace or war, for the administration of justice and the preservation of order. The fourth clause not only includes those who gave a cordial and active support to the hostile government, but also those who yielded a reluctant obedience to the existing order, established without their co-operation.” [71 US 333, 376-377]

He next discusses the purpose of the January 24 statute: “The statute is directed against parties who have offended in any of the particulars embraced by these clauses. And its object is to exclude them from the profession of the law, or at least from its practice in the courts of the United States. As the oath prescribed cannot be taken by these parties, the act, as against them, operates as a legislative decree of perpetual exclusion. And exclusion from any of the professions or any of the ordinary avocations of life for past conduct can be regarded in no other light than as punishment for such conduct. The exaction of the oath is the mode provided for ascertaining the parties upon whom the act is intended to operate, and, instead of lessening, increases its objectionable character. All enactments of this kind partake of the nature of bills of pains and penalties, and are subject to the constitutional inhibition against the passage of bills of attainder, under which general designation they are included.” [71 US 333, 377]

In considering the constitutionality of the statute, Justice Field wrote, “In the exclusion which the statute adjudges, it imposes a punishment for some of the acts specified which were not punishable at the time they were committed, and, for other of the acts, it adds a new punishment to that before prescribed, and it is thus brought within the further inhibition of the Constitution against the passage of an ex post facto law. In the case of Cummings against The State of Missouri, just decided, we have had occasion to consider at length the meaning of a bill of attainder and of an ex post facto law in the clause of the Constitution forbidding their passage by the States, and it is unnecessary to repeat here what we there said. A like prohibition is contained in the Constitution against enactments of this kind by Congress, and the argument presented in that case against certain clauses of the constitution of Missouri is equally applicable to the act of Congress under consideration in this case. The profession of an attorney and counselor is not like an office created by an act of Congress, which depends for its continuance, its powers, and its emoluments upon the will of its creator, and the possession of which may be burdened with any conditions not prohibited by the Constitution. Attorneys and counselors are not officers of the United States; they are not elected or appointed in the manner prescribed by the Constitution for the election and appointment of such officers. They are officers of the court, admitted as such by its order upon evidence of their possessing sufficient legal learning and fair private character. It has been the general practice in this country to obtain this evidence by an examination of the parties. In this court, the fact of the admission of such officers in the highest court of the States to which they respectively belong, for three years preceding their application, is regarded as sufficient evidence of the possession of the requisite legal learning, and the statement of counsel moving their admission sufficient evidence that their private and professional character is fair. The order of admission is the judgment of the court that the parties possess the requisite qualifications as attorneys and counselors, and are entitled to appear as such and conduct causes therein. From its entry, the parties become officers of the court, and are responsible to it for professional misconduct. They hold their office during good behavior, and can only be deprived of it for misconduct ascertained and declared by the judgment of the court after opportunity to be heard has been afforded. Their admission or their exclusion is not the exercise of a mere ministerial power. It is the exercise of judicial power, and has been so held in numerous cases. It was so held by the Court of Appeals of New York in the matter of the application of Cooper for admission.” [71 US 333, 377-379]

Justice Field affirms Congress has the power to prescribe qualifications for practicing law before the Court, but he also says in this case the restriction was being used as a punishment, which the Constitution didn’t allow.

He next considers Johnson’s pardon of Garland. “The Constitution provides that the President ‘shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.’ The power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions. Such being the case, the inquiry arises as to the effect and operation of a pardon, and on this point all the authorities concur. A pardon reaches both the punishment prescribed for the offence and the guilt of the offender, and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that, in the eye of the law, the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity. There is only this limitation to its operation: it does not restore offices forfeited or property or interests vested in others in consequence of the conviction and judgment. The pardon produced by the petitioner is a full pardon ‘for all offences by him committed, arising from participation, direct or implied, in the Rebellion,’ and is subject to certain conditions which have been complied with. 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. If such exclusion can be effected by the exaction of an expurgatory oath covering the offence, the pardon may be avoided, and that accomplished indirectly which cannot be reached by direct legislation. It is not within the constitutional power of Congress thus to inflict punishment beyond the reach of executive clemency. From the petitioner, therefore, the oath required by the act of January 24th, 1865, could not be exacted even if that act were not subject to any other objection than the one thus stated.” [71 US 333, 380-381]

Justice Field ordered Garland’s petition to be granted, “And the amendment of the second rule of the court, which requires the oath prescribed by the act of January 24th, 1865, to be taken by attorneys and counselors, having been unadvisedly adopted, must be rescinded.” [71 US 333, 381]

This case established the oath required was an unconstitutional punishment. Former confederates, then, were free to return to the Federal Judiciary. This also boded ill for the practice of requiring loyalty oaths for past conduct.


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