Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-02-02

Its salary OF OLutf NIuOlunChAos VII tAic
oath Of January, 1865, congress passed
, supplementary act, extending It's pro-
visions so as to embrace attorneys and
counseIlOrs of the courts of the United
States, which provide that after its pas
sage no person shall he admitted as an
! attorney or counsellor 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, or be allowed TO ap-
pear and be heard by virtue of any pre-
Vious admission or 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 pre-
served among the files of the court and
if any person shall take it falsely he
shall be guilty of perjury, and, upon
conviction, shall be subject TO the pains
and penalties of that Offensen
At the December Germ of 1860, the pc
titioner RRs admitted as an attorney and
counsellor of this court, and took and
subscribed the oath then required. By
the second rule as il then existed, it was
only requisite to the admission OF attOr-
news and counsellOrs of this court that
they should have been such officers for
the three previous years in the highest
courts of the state to which they respect
lively belonged, and that their private
and professional character should appear
to be fair. In March, 1865, this rule was
changed by the addition of clause re-
duiring the administration of the oath
in conformity with the act of congress.
In May, 1861, the state of Arkansas, of
which the petitioner was a citizen, passed
an ordinance of secession which pur-
ported to withdraw the state from the
union, and afterward, in the same year,
by another ordinance, attached herself
to the sO-called Confederate States, and
by act of the congress of that COnfede-
racy, she was received as one of its men,
bers. The petitioner followed the state
and was one of her representatives, first
in the lower house, and Rfterward in the
senate of the congress of that Confede-
racy, and was a member of the senate at
the time Of the surrender of the Cenfed-
crate forces to the armies of the United
States.
In July, 1865, he received from the
president of the United States full par
don for all offenses committed by him
by participation, direct or implied, in
the rebellion, He now produces this
pardon, and asks permission TO continue
10 practice as an attorney and counsellor
Of this court, without taking the oath re-
uuired by the act Of January "a, 1868,
and the rule of this court, which he is
unable to take by reason Of the offices
he held under the Confederate govern
ment.
He rests his application principally
upon two grounds First, that the
act of January, "A, 1865, SO far as 1t
affects his status in the court, is uncOn-
stitutional an void second, that If the
act be constitutional, he is released from
compliance with its provisions by the
pardon of the president. The oath pre-
scribed by the act is as follows /. Ihat
the depOnent has never voluntarily
horne arms against the United States
since he has been citizen thereof. 2.
That he has not voluntarily given aid,
countenance, counsel or encouragement
to persons 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 government,
authority, power, or constitution within
the United States hostile or inimical
thereto. 5. 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.
~ y
, requires no consideration. The ques-
| tions presented for our determination
Z arise from the other clauses. These ali
: relate to past acts. Some of these acts
constituted, when they were committed,
2 ofTenses against the criminal laws of the
! country, and some of them may or may
r not have been Offenses, according to the
circumstances under which they were
committed and the motives Of the par
= ties. The first clause covers one form Ol
p the crime of treason, and the ailiant must
5 declare that he has not been guilty Oi
this crime, not only during the war OF
/ rebellion, but during any portion of his
. life since he has been citizen. The
0 second clause goes beyond the limits Of
e treason, aud embraces not only the CIV
{ ing of aid and encouragement of trea'
). sonabIe nature to a public enemy, but
also the giving of assistance of any kind
e to persons engaged in armed hostility tC
{ the United States. The third clause ap-
' plies to the seeking. acceptance, or eXer'
: else, not only of offices created for the
a purpose of more effeetually carrying on
q | hostilities, but also of any of those offices
v which are required in every community
2 whether in peace or war, for the admin
+, istration of Justice and the preservation
s of order. The fourth clause not only
r. includes those who gave a cordial anC
e active support TO the hostile government
d but also those who yielded a reluctan
= obedience to the existing order estab
n lished without their cooperation,
The statute is directed against parties
who have offended in any Of the particu
lars embraced by these clauses, and it.
/ object is to exclude them from the pro
fession of the law, or at least from it
J. practiee in the courts of the United
, States. AS the oath prescribed canno
Il be taken by these parties, the act a
10 against them operates as a legislative de
cree of perpetual exclusion. An eXclu
!! sion from any of the professions or an.
D. of the ordinary avOcatiOns Of life fOr pas
conduct can be regarded in no other ligh
rI than az a punishment for such conduct
ed The exactlon of the oath is the med
-, provided for ascertaining the parties upol
III whom the act is intended to operate, an
OF instead Of lessening, increases its objeC
tionable character. All enaetments G
I'd this kind partake OF the nature Of bills q
l. pains and penalties, an1 are subject +
~ the constitutional inhibitiQn against tn
passage OF bills Of attainder, under Whio
general designation they are included
In the eXelnsian which the statute ad
e iudges, il imposes q punishment for som
Of the acts specified, which are not pun
a. ishable, or may not have been punisha
ole at the time they were committed
III and for all the acts it adds a new punish
ment to that then prescribed, and it
ne thps brought within the fourth inhiA
tion " tine constitution against the pas
sage Of an ex post faetO Law.
In the case of Cummings vs. the Stat
Of Missouri, just decided, we had occi
ou sion tc consider at length the meanin
3 Of bill of attainder and an ex post fact
III law in the clause of the constitution fol
bidding their passage by the states, ep
mi it is HnnePess9Fy Il reHe9s here what Y
nc tanned in the constitution against enac
n ments of this kind by congress, aud Il
argument presented ln that CASE again
o. certain clauses Of the constitution
Missouri is equally applicable to the a
70 q of congress under consideration in tn
~ case.
The profession of an attorney and coul
eS sellor is not like an Office created ly /
- act OF congress, WHICH depends for
vi continuance, its powers, aud its emol
ments on the viii Of its creator, and Il
=, possession of which may be burden,
ri with any conditions not prohibited
oII the constitution. Attorneys and eOa
Gu sellors ara not officers of the Unit
- I states. lutg dIe uOb titOlcu VI u lpOiuO'
'h- in the manner prescribed by the const
tuition for the election or appointment
M such officers. They are officers of Il
un court, admitted as such by its order unC
hg evidence Of theiE possessing sufticie
lul legal learning and fair character. Sin
* tie statute Of 4th Henry ". it has be,
ne the practice in England, and it has !
wavs been the practice in this coWntr
er- TO obtain this eYideppe by an examin
tIen OF the parties. Ia this court the IA
~ the admission of such officers in d
oil highest court of the states 70 which tn
Ia respectively belong for three years II
he ceding their application Is regarded
at snffieient evidence of the possession
20 the requisite legal learning, and u
of statement of counsel moving their a
A. mission sufficient evidence that thl
o nrivate and professional character is IA
Ne The order of admission is the judgme
he Of the court that the parties possess {
he reouisite qualifications as attorneys a
,;s- COUNSELLOR, and are entitled to appear
''rs sneh and conduct causes therein. Ere
me its entry the parties become officers
me the court, and are responsible to it
- nrofessional misconduct.
a -