Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-01-19


any circuit or district court Of the United
States, or Of the Court Of Claims. or be
allowed TO appear aud be heard by virtue
of any previous admission or hny special
power Of attorney, unless he shall have
first taken and subscribed the oath pre-
seribed in the act Of July 2, 1862 The act
also provides that the cath shall be pre-
served among the files Of the coEft J, and if
any person take it falsely he shall be guilty
of perjury, and. upon conviction, snall be
subject to the pains and penalties Of that
efenEe.
| At the December term of 1860, the pc
htioner was admitted as an attorney and
! counselor Sof this court, and took and sub
scribed the oath then required By the
| second rule ss it then existed, it was only
/ requisite to the admission of attorneys and
eounselors sof this court that they should
have been such officers for the three preyi-
Gus years in 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, 1866
this rule was changed by the addition Of a
claus sequiring the administration Of the
oath conformity with the act Of Con-
gress.
In May, 1861, the State of Arkansas, of
which the petitioner was a citizen, passed
an ordinance of secession which purported
10 withdraw the State from the Union. and
afterwards, in the same year, by another
ordinance, attached herself to the so-called
Confederacy, she was received a. one of its
members. The petitioner followed the
State and was one Of her representatives.
first in the lower house, and afterwards in
the Senate Of the Congress of that Confede-
raey, and was a member Of the Senate at
the time of the surrender Of the Confede-
rate forces to the armies Of the United
States.
In July, 1865, he received from the
President of the United States full pardon
for all ofenses committed BY him by par
ticipation, direct or implied, in the rebel
lion. He now produces this pardon, and
asks permission to continue to practice as
an attorney and counselor Of the court,
without taking the oath required by the
act of January "a, 1865, and the rule of
this court which he is unable 10 take by
| reason Of the Offices he held under the Com
tederate government.
He rests his application principally upon
| two grounds First that the act of jan
uary "a, 1865, so far as it affects his status
| IN the court, is unconstitutional and void
| second, that if the act be constitutional, he
| is released from compliance with its provi-
sions by the pardon of the President. The
oath prescribed by the act Is as follows: /.
! That the deponent has never voluntarily
/ borne arms against the United States since
| he has been a citizen thereof. 2. That he
has not voluntarily given aid, counte-
nance, counsel, or encouragement to per.
sons engaged in armed hostility thereto.
/ 3. 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. A. That he has not yielded
| q voluntary support TO any pretended gov
| ernment, authority, power, or constitution
within the United States hostile or inimieal
! thereto. 5. That ne will support and
defend the constitution Of the United States
against all enemies, foreign and domestic
and viii 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 ofIenses against the
| criminal laws Of the country, and some Of
them may or may not have been ofenses,
| 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 affiant
lnust declare that he has not been guilty Of
this crime, not only during the war Of re-
helliOn, but during any period OF niS life
| since he has been a citizen. The second
clause goes beyond the limits of treason,
sud embraces not only the giving OF aid
and encouragement of a reasonable nature
to s public enemy, bat 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 efectually
carrying on hestilities, 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 pre-
servation 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 ODE
dience to the existing order established
without their cooperation.
The statute is directed against parties
who have offended in any of the particu-
lars embraced by these clauses, and its OBJ
ject 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
asa legislative decree of perpetual exclu-
sion. An exclusion from any of the pro-
fessions or any of the ordinary avocations
Of life for past conduct can be regarded in
no other light than as a punishment for
such conduct. The exactiOn of the oath is
the mode provided for ascertaining the par
ties upon whom the act is intended to ope-
rate, 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 pas
sage of bills of attaindcr, under which gen
eral designation they are included. In the
exelusiSh which the statute adiudges. II
imposes a punishment for some Of the acts
| specified, which were not punishable OF
may not have been punishable at the time
they were committed and for all the acts
it adds a new punishment to that then pre-
scribed, and it is thus brought within the
fourth inhibition of the constitution against
the passage Of an sr post faeto law.
In the case ofCummings vs. the State of
Missouri, Just decided, we had occasion to
consider at length the meaning Of bill Of
attainder and an er post fqcf0 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
prohibitioa is contained in the constitution
against enactnents of this kind BY Con
gress, and the argument presented in that
case against certain clauses of the constitu-
ton Of Missouri is equally applicable to the
act Of Congress under consideration in this
case.
The profession Of an attorney and coun-
selor is not like an Office created by an act
Of Congress, which depends for its continu-
anee, its powers, and its emoiuments or the
will Of its creator, and the posseisinn Of
which may be burdened with any eoBdi-
tions not prohibited by the constitution
Attorneys and couuselors are not officers
of the United State They are not elected
or appointed in the manner prescribed BY
the constitution for the election or appoint
ment Of such officers. They are officers Of
the court, admitted as such by its order up
on evidence Of their possessing sufficient
legal learning and fair character. Since
the statute OF 4th Henry ", it has been
the practice in England, and it has always
been the practice in thiacountry, to obtain
this evidence by an examination Of the par
ties. 10 this court the faCt of the admins
sion Of such officers to the highest court Of