The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1867-01-15

proceeded 10 II arm also instructed by the Court 10
deliver It's opinion in the matter OF the petition OF H.
Garland On the % OF july 1852, Congress passed an
prescribing an oath to be taken by every person
elected appointed any Office Of honor profit under
the government of the United States either in the CIVIL
military naval departments of the public service,
cept the President of the United States before entering
upon the duties OF his Office, and before being entitled
its salary or other emoluments. On the oath OF Jan.
nary, 1855 Congress passed supplementary act, ex-
tending its provisions to embrace attorneys and
counseors Of the courts OF the United States, which
provides that after its passage no person shall
he admitted attorney counsellor 20 the bar OF
the Supreme Court and after the 4th OF March, 1885, 10
the bar OF any Circuit or District Court Of the United
States OF the Court of Claims be allowed 10 appear
and be heard by virtue of any previous admission or
special OF attorney unless he shall have first taken
and subscribed the oath prescribed in the act OF July
1867 The act also provides that the oath shall be
served among the files OF the court aud If any person
take il falsely he shall be guilty of perjury. and upon
conviction shall be subject 10 the pains and penalties
OF that offence At The December term Of 1860 the pc
tltioner was admitted as an attorney and counsellor
Of this court, and took and subscribed the
oath then required by the second rule, as it then
existed II was only requisite to the admission OF
attorneys and counseors of this court that they
should have been such officers for the three previous
years in the highest of the States TO which they
respectively belonged and that their private and pro-
fessiona character should appear TO be far In March,
lsoo hs RUE was changed oy me addition OF clause
with the act of Congress In May, 1861, the State OF
Arkansas, Of which the petitioner citizen, passed
ordinance Of secessioD which purported TO withdraw
the state from the Union, and aferward, In the
year by another ordinance, aached'herse to the so.
called Confederate States and by of the Congress of
that confcderacy she received ms one OF its men,
bers. The petitioner followed the State and
OF her representatives first IN the lower House
and aferward IN the Senate Of the Congress
Of that confederacy, and was member OF the
Senate at the time OF the surrender Of the Confederate
forces 10 the armies Of the United States In July 1885,
he received from the President of the United States
full pardon for all offences committed by him by par
ticipaton direct or implied, In the rebellion He
produces this pardon and asks permission to continue to
practice attorney and counsellor OF the with
out taking the oath required by act of January a. 1885,
and the rule of this court which he is unable to ako by
reason Of the Offices he held under the Confederate
ernment He rests his application principally upon two
grounds-frs that the act of January a. 1865. far
affects bis status in the court Is unconstitutional
and void second that IL the act be constitutional he
is released from compliance with Its provisions by the
pardon of the President The oath prescribed by the
act is as follows-Frst that the deponcpt has never
voluntarily borne arms against the United States since
he has been citizen thereof second that he has not
voluntarily given aid, countenance, counsel
agement to persons engaged ia armed hostility thereto
third that he has sought accepted attempted
10 exercise the functions Of any Office whatsoever under
any authority Or pretended authority in hostility to the
United States fourth that he has not yielded yolun-
tary support TO any pretended government, authority
power constitution within the United hostile or
the constitution Of the United States against ali
enemies, foreign md domestic, and will bear true
faith ana allegiance TO the same. This last clause
Is promissory only and requires no consideration.
The questions presented for determination
arse from the other cnuses. These all relate
when they commtted, offences against the crmi-
nal laws Of the country and Of them may or may
not have been offences according circumstances I'M
der which they were committed and the motives Of the
parties The first clause form Of the crime Of
treason, and the aiant must declare that he has not
been guilty OF this crime not only during the Of
rebellion, but during period Of his life since he has
been citizen. The second clause goes beyond the
limits OF treason ana embraces not only the giving o. aid
and encouragement OF reasonable nature 70 public
enemy but also ihe giving Of assistance OF any kind
persons engaged In armed hostility 10 the United States
The third clause applies TO the seeking acceptance
exercise not only OF Offices created for the purpose Of
more enectualy carrying hostilities but also of
any OF those Offices which are required in every com
munity whether IN peace for the administration
Of justice and the preservation Of order. The fourth
clause not only includes those who gave cord al and
active support To the hostile government, but also those
who yielded reluctant obedience the existing
established without their cooperation The statute is
directed ngains! parties who have offended any of the
particulars embraced by these clauses and its object
exclude them from the profession OF the law, at least
from s practice IN the courts OF the United States As
The oath prescribed cannot be taken by these parties the
act as sganst them operates as legislative decree Of
perpetual exclusion An exclusion from any of the pro-
LESSONS or any OF the ordinary avocations OF life
for past conduct be regarded in no ether
light than as punishment for such conduct Tho
action oil The oath Is the mode provided for ascertanng
the parties upon whom the act intended 10 operate,
and instead OF ossenng, increases It's Objectionable
Character All enactnents OF this kind parake OF the
nature OF bills of pains and penalties and subject
10 the constitutional Inhibition against the passage OF
bills OF atsnder under which general designation they
are included. In the exclusion which the statute ad-
Judges, it imposes punishment for OF the
specified which were not punishable or NAV not have
been punishable at the time they were committed ard
for all the acts IL adds punishment 10 that
men prescribed, aud y Is thus brought within
The further Inhibition OF the constitution against the
passage OF an post tucto law. In the If Cum
mings the State OF Missouri, just decided We had
occasion TO consider at length the meaning OF hill Of
attainder and an pos co law In the clause OF the
constitution forbddng their passage by the Steie and
ike prohibition ia contained in the Constitution against
snactmens OF this kind by Congress- and the argument
presented in that against certain clauses Of the
sttuton OF Missouri Is equally applicable 10 the act OF
CONGRESS under consideration this The profess
sion OF an attorney and counsellor Is not like Office
continuance its powers and is emoluments on the will
Of ~ creator, ard the possession OF which may be
burdened with any conditions not prohibited by the
constitution Attorneys and counseIlors arc not
officers OF the United States. They are not elected
or appointed In the manner prescribed bv tho
oncefs They officers Of the court admitted as such
BY lie order upon evidence Of their possessing sufficient
statute Of Heary w Il has been she practice in Eng
land and Il has always been the practice In this
Try, 70 obtain this evidence by an examination OF the
partes In This the fact OF the admission Of such
oocs In the highest court Of the states 70 which they
respectively belong for three years preceding their APP
The possession OF the requisite legal learning,
and the statement OF counsel moving their ad.
mission is suficient evidence that their pri.
private and professional character Is fair The order
OF admission the Judgment Of the court that the par
ties possess the requisite qualifications AZ attorneys
conduct causes thereon From s entry the parties be-
come officers OF the court and responsible TO II for
professional misconduct They hold their Office during
good behavior, and can only be deprived Of for mis-
conduct acertsincd and declared by the Judgment of
the court after opportunity 10 he heard has been afforded
Their admission and their exclusion not the exercise
OF q mere ministerial power The court Is not In this
respect the register Of the edcts Of any other body II
s tho exercise OF judicial power and has been held In
numerous cases II so held by the Court of Appeals
Of New York In the matter o. the application Of Cooper
for admission. Attorneys and counsellors said that
whose duties relate almost exclusively proceedings
Of Judicial nature and hence their appointment may
with proprety be entrusted 10 the courts. And the
latter in performing this duty. may very Justly be
sdered engaged In the exercise Of their appropriate
judicial functions In pare Sccomb tnandarnus
the Supreme Court OF the Territory Of Minnesota 10
vacae an order removing an attorney and counsellor
was denied by this court on the ground that the
removal was q judicial act We are not aware Of any
case, said the court whore mandamus was issued
10 an injector tribunal commanding u TO reverse
snnul s decision where the decision was in its nature
judicial act aud within the scope Of its jurisdc-
ton and discretion. And In the same case the court
observed that IL has been we'll settled by the rules
H. a~el,.