Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1867-01-24
IMPORTANT DECISION,
The Test-DatI, Pronounced Demonstrations
al ny the Supreme Court.


| Mr.. Justice Field (having delivered the
opinion of the court in the case Of Cum
mipgs rs The State of Missouri proceeded
to say
am also instructed 10y the court TO de
liver the opinion in the matter Of the pet
ton of A. II. Garland.
On the second of July, 1862. Congress
passed an act prescribing an oath to be ia
ken by every person elected or appointed
to any Office of honor OF profit under the
Government of the United States, either III
the civil, military, OF naval departments Of
the public service, except the PRESIDENT OF
the United States, before entering upon
the duties of his office, and before entitled
to its salary or other cmolumerts. On the
oath of JANUARY, 1860, Congress passed a
supplementary act, cxteniing its provisions
so as to embrace attorneys and counsellors
Of the courts of the United States, which
provides that after its passage no person
shall be admitted as IN attorney Or cOUn-
sellor to the bar OF the Supreme Court
and after the 4th Of March, 1865, to the bar
of any circuit or district court of the United
States, or of the Court Of Claims, OF be al
lowed to appear and be heard by virtue Of
any previous admission any special power
of attorney, unless he shall have first taken
and subscribed the oath prescribed in the
act of July 2, 1862. The act also provides
that the oath shall be preserved among the
flies of the court and if any person take
it falsely he shall he guilty OF perjury, and,
upon conviction, shall he subject to the
pains and penalties of that offence.
| At the December term Of 1860, the pcti-
| toner WAS admitted us an attorney and
counsellor of this court, and took and sub
scrihCd the oath then required. BY the
second rule as ID then existed, it was only
requisite to the admission Of attorneys and
counsellors of this court that they should
! have been such officers for the three pre-
vious years i'll the highest courts of the
States to which they respectively belonged,
and that their private and professional
character should appear to be fair In
March, 1860, this rule WAS changed by the
addition Of Il clause requiring the adminis-
! tration of the oath III conformity with the
act Of Congress.
In May, 1861, the State OF Arkansas, of
which the petitioner was II citizen, passed
an ordinance Of secession which purpOrted
/ to withdraw the State from the Union, and
afterwards, IN the same year, by another
ordinance, attached herself to the so-called
Confederate States, and by act of the Con-
gross of that Confcderacy, she was received
us one of its members. The petitioner fol
lowed the State and WAS one of her repre-
isentativCs, first in the lower House, and af-
forwards in the Senate of the Congress of
| that COnlederacy, ami WIS IL member of the
Senate at the time Of the surrender of the
| Confederate forces to the armies Of the
| United States.
In July, 1865, lie received from the Pre-
sident of the United States Il full pardon
for all offences committed by him by par
! ticipatiOn, direct or implied, i'll the rebel
lion. He now produces this pardon, and
asks permission to continue to practise us
an attorney and counsellor Of the court,
without taking the oath required by the
act of January, "a, 1865, and the rale of
this court, which he is unable to take by
reason of the Offices he held under the Con
| federate Government.
| lie rests his application principally upon
two grounds: First, that the act of january
81, 1865, SO far as it affects his status in the
court is unconstitutional and void second
that if the act be constitutional, he is re-
leased from compliance with its provisions
by the pardon Of the President. The oath
prescribed by the act is ts follows: |. That
the deponent has never voluntarily borne
arms against the United States since he has
been citizen thereof =. That he has not
voluntarily given aid, countenance, counsel,
or encouragement to persons engaged III
armed hostility thereto. .. That he has
never sought, accepted, OF attempted to
exercise the functions of any Office whatso-
ever under any authority OF pretended au-
thorty in hostility to the United States. 4.
That he has not yielded voluntary sup
port to any pretended government, author
ity, power, or constitution within the Uni
ted States hostile or inimical thereto. 5.
That he will support and defend the Con
stitution of the United States against all
Ienemies, 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
other clauses These all relate 10 past acts
Some of these acts constituted, when they
were committed, offences against the Grim
lnal laws of the country, and some of them
may or may not have been offences, accord
ing to the circumstances under which they
were committed and the motives of the par
ties. The first clause covers one form OF
the crime of treason, and the affiant must
declare that he has not been guilty of this
crime, not only during the war of 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 encourage
ment of u reasonable nature to public
enemy. but also the giving of assistance OF
any kind 10 persons engaged in armed hos
tility to the United States. The third clause
lapplles to the seeking, acceptance, or exer
lclse, not only of offices created for the pur
lpose of more effectually carrying on hos
tilities, bat also of any of those Offices
(which are required in every community
whether in peace or war, for the admins
tration of justice and the preservation O
order The fourth clause not only include.
those who gave cordial and active supper
to the hostile government, but also those
who yielded a reluctant obedience to the
existing order established without their co
operation.
The statute is directed against partie,
who have offended in any of the particular
embraced by these clauses, and its objec
is to exclude them from the profession O
! the law, or at least from its practice in the
courts of the United States. As the oath
prescribed cannot be taken by these par