Ex parte Garland
Annotate this Case
71 U.S. 333 (1866)
U.S. Supreme Court
Ex parte Garland, 71 U.S. 4 Wall. 333 333 (1866)
Ex parte Garland
71 U.S. (4 Wall.) 333
1. The act of Congress of January 24th, 1865, providing that, after its passage, no person shall be admitted as an attorney and counselor to the bar of the Supreme Court, and, after March 4th, 1865, to the bar of any Circuit or District Court of the United States, or Court of Claims, or be allowed to appear and be heard by virtue of any previous admission, or any special power of attorney, unless he shall have first taken and subscribed to the oath prescribed in the act of July 2d, 1862 -- which latter act requires the affiant to swear or affirm that he has never voluntarily borne arms against the United States since he has been a citizen thereof, that he has voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto, that he has 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, and that he has not yielded a voluntary support to any pretended government, authority, power, or constitution within the United States hostile or inimical thereto -- operates as a legislative decree excluding from the practice of the law in the courts of the United States all parties who have offended in any of the particulars enumerated.
2. Exclusion from the practice of the law in the Federal courts, or from any of the ordinary avocations of life for past conduct is 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.
3. The act being of this character partakes of the nature of a bills of pains and penalties, and is subject to the constitutional inhibition against the passage of bills of attainder, under which general designation bills of pains and penalties are included.
4. In the exclusion which the act 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 within the inhibition of the Constitution against the passage of an ex post facto law.
5. Attorneys and counselors are not officers of the United States; they are officers of the court, admitted as such by its order upon evidence of their possessing sufficient legal learning and fair private character.
6. The order of admission is the judgment of the court that the parties possess the requisite qualifications and are entitled to appear as attorneys and counselors 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 and their exclusion are the exercise of judicial power.
7. The right of an attorney and counselor, acquired by his admission, to appear for suitors and to argue causes, is not a mere indulgence -- a matter of grace and favor -- revocable at the pleasure of the court, or at the command of the legislature. It is a right of which he can only be deprived by the judgment of the court, for moral or professional delinquency.
8. The admitted power of Congress to prescribe qualifications for the office of attorney and counselor in the Federal courts cannot be exercised as a means for the infliction of punishment for the past conduct of such officers, against the inhibition of the Constitution.
9. The power of pardon conferred by the Constitution upon the President is unlimited except in cases of impeachment. 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. The power is not subject to legislative control.
10. A pardon reaches the punishment prescribed for an offence and the guilt of the offender. 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 gives him a new credit and capacity. There is only this limitation to its operation: it does not restore offices forfeited, or property of interests vested in others in consequence of the conviction and judgment.
11. The petitioner in this case, having received a full pardon for all offences committed by his participation, direct or implied, in the Rebellion, is relieved from all penalties and disabilities attached to the offence of treason, committed by such participation. For that offence, he is beyond the reach of punishment of any kind. He cannot, therefore, be excluded by reason of that offence from continuing in the enjoyment of a previously acquired right to appear as an attorney and counselor in the Federal courts.
On the 2d of July, 1862, Congress, by "An act to prescribe an oath of office, and for other purposes," [Footnote 1] 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;"
"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, [Footnote 2] 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,"
By the Judiciary Act of 1789, the Supreme Court has power to make rules and decide upon the qualifications of attorneys.
At the December Term of 1860, A. H. Garland, Esquire, was admitted as an attorney and counselor of the court, and took and subscribed the oath then required. The second rule, as it then existed, was as follows:
"It shall be requisite to the admission of attorneys and counselors to practise in this court that they shall have been such for three years past in the Supreme Courts of the States to which they respectively belong, and that their private and professional character shall appear to be fair."
"They shall respectively take the following oath or affirmation, viz.:"
"I, A. B., do solemnly swear (or affirm, as the case may be) that I will demean myself as an attorney and counselor of this court, uprightly, and according to law, and that I will support the Constitution of the United States."
There was then no other qualification for attorneys in this court than such as are named in this rule.
In March, 1865, this rule was changed by the addition of a clause requiring an oath, in conformity with the act of Congress.
At the same term at which he was admitted, Mr. Garland appeared, and presented printed argument in several cases in which he was counsel. His name continued on the roll of attorneys from then to the present time. but the late Rebellion intervened, and all business in which he was concerned at the time of his admission remained undisposed of. In some of the cases alluded to, fees were paid, and in others, they were partially paid. Having taken part in the Rebellion against the United States by being in the Congress of the so-called Confederate States from May, 1861, until the final surrender of the forces of such Confederate States -- first in the lower house and afterwards in the Senate of that body as the representative of the State of Arkansas, of which he was a citizen -- Mr. Garland could not take the oath prescribed by the acts of Congress before mentioned and the rule of the court of March, 1865.
The State, in May, 1861, passed an ordinance of secession, purporting to withdraw herself from the Union, and afterwards, in the same year, by another ordinance, attached herself to the so-called Confederate States.
In July, 1865, Mr. Garland received from the President
a pardon, by which the chief magistrate, reciting that Mr. Garland, "by taking part in the late Rebellion against the government, had made himself liable to heavy pains and penalties," &c., did thereby
"Grant to the said A. H. Garland a FULL PARDON AND AMNESTY for all offences by him committed, arising from participation, direct or implied, in the said Rebellion, conditioned as follows: this pardon to begin and take effect from the day on which the said A. H. Garland shall take the oath prescribed in the proclamation of the President, dated May 29th, 1865, and to be void and of no effect if the said A. H. Garland shall hereafter at any time acquire any property whatever in slaves, or make use of slave labor, and that he first pay all costs which may have accrued in any proceedings hitherto instituted against his person or property. And upon the further condition that the said A. H. Garland shall notify the Secretary of State in writing that he has received and accepted the foregoing pardon."
The oath required was taken by Mr. Garland and annexed to the pardon. It was to the purport that he would thenceforth
"faithfully support, protect, and defend the Constitution of the United States and the union of the States thereunder, and that he would in like manner abide by and faithfully support all laws and proclamations which had been made during the existing Rebellion with reference to the emancipation of slaves."
Mr. Garland now produced this pardon, and, by petition filed in court, asked permission to continue to practise as an attorney and counselor of the court, without taking the oath required by the act of January 24th, 1865, and the rule of the court. He rested his application principally upon two grounds:
1st. That the act of January 24th, 1865, so far as it affected his status in the court, was unconstitutional and void, and,
2d. That, if the act were constitutional, he was released from compliance with its provisions by the pardon of the President.
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