The evening Argus. [volume] (Rock Island, Ill.) 1861-1871, 1867-01-21
Decisions by the United
States Supreme Court.
The Missouri Test Oath, and the
Test Oath Imposed by Con
gress Upon Lawyers, De-
clared UncOnStitu-
tiOnal. rs
Synopsis Of the Opinions OF the
Court as Delivered by Justice
@ Field.
-
tConcluded.l
EOUfCIUtIGV.J
THE LAWYERS TEST OATH CASE.

Mr.. Justice Field having delivered the
opinion of the court in the case OF Cummins
Us. The state of Missouri, proceeded to
say: am also instructed by the courts to
deliver its opinion in the matter of the petit
ton of A. II. Garland. On the I'd of July,
1862, congress passed an act prescribing an
oath to be taken by every person elected or
appointed to any Office of honor or profit I'M
der the government of the United States,
either in the civil, military or naval depart
ments of the public service, except the presi
dent ofthe United States, before entering
upon the duties of his Office, and before She
ing entitled to its salary or other enolu-
ments. On the oath of January, 1865, CON
~gress passed supplementary act, extending
its provisions SO asto embrace attorneys and
counselers of the United States, which pro-
vides that after its passage no person shall
be admitted as an attorney or counselor 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 appear and
be heard by virtue of any previous 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
preserved among the files of the court, and
if any person take it falsely he shall be gull
ty of perjury, and upon conviction shall be
subject to the pains and penalties Of that Of
fence. At the December term of 1860 the
petitioner was admitted as an attorney and
counselor Of this court, and took and sub
scribed the oath then required by the second
rule, as it then existed. 1t was only requis-
tie to the admission of attorneys and counsel
ors of this court that they should have been
such officers for the three previous 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. 1868, this rule was
changed by the addition OF clause requir
ing the administration of the oath IN con-
formity with the act of congress. In May
1861. the state of Arkansas, of which the
petitioner was citizen, passed an ordinance
of secession, which purported to withdraw
the state from the Union, and afterwards, in
the same year. by another ordinance. attach
ed herself to the so-called confederate states,
and by act Of congress of that confederacy
she was received as one of It's members
The petitioner followed the state and was one
of her representatives, first in the lower
house and afterward in the senate of the con-
gress of that confederacy, and was q member
of the senate at the time of the surrender of
the confederate forces to the armies of the
United States. In july, 1865, he received
from the President of rhe United States a
full pardon for all offences committed ny him
By participation, direct or implied, in the
rebellion. lie now produces this pardon
and asks permission to continue to practise
as an attorney and counselor Of the court
without taking the oath required by act of
Jan. "a. 1865, 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 erounds-frst, that the act of Jan.
81, S6J. so far as it affects his status i'll the
court is unconstitutional and void: second,
that if the act he constitutional, he IS released
from compliance with its provisions by the
pardon Of the President. The oath prescrib
ed by the act is as follows: First, that the
deponent has never voluntarily borne arms
against the United States since ne has been
a citizen thereof: second, that he has not
voluntarily given aid, countenace, counsel or
encouragement TO persons engaged IN armed
hostility thereto: third, that he has never
sought. accepted or exercised the functions of
any Office whatsoever, under any authority
or pretended authority, in hostility to the
United States; fourth, that he has not yield
ed a voluntary support TO any pretended
government, authority. power or constitution
within the United States hostile or immical
thereto; fifth, that he will support and de-
fend the constitution of the United States
against all enemies, foreign and domestic,
and will bear true faith and allegiance to the
same. This last clause Is promissory only
and requires no consideration. The ques-
lions presented for our determination arise
from the other clauses. These all relate to
past acts Some OF these acts constituted,
when they were committed, offences against
the criminal laws of the country, and some
of them may or may not have been offences
according TO 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 afiant 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 encouragement of a trea
sonabIe nature to public enemy, but 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. ac
ceptance or exercise, not only of offices Great
ed for the purpose OF more effectually carry
fees which are required in every community
whether in peace or war, for the adminstra
ton of Justice and preservation of order. The
fourth clause not only includes those who
gave cordial and active support to the hos
tile government, but also to those who Weld
ed reluctant obedience to the existing or
der established without their corporation
The statute is directed against parties who
have offended in any of the particulars EN-
braced by these clauses, and It's object is tc
exclude them from the profession of the law
or at least from its practice in the courts Of
z The Onitsd States. As the oath prescribed
cannot be taken by these parties, the act as
against them operates as a Legislative decree
OF perpetual exclusion. An exclusion from
any OF the professions or any of the ordinary
d avoeations of life for mast oondnct ca,,- he 70
saruec III no other light than as q punish.
ua'h is tne mooe provided for ascertainine
the PARTIES upon "hom the act is intended te
operate, ana instead OF lesseninc, increases
ITS Objectionable character. All enactmeuts
OF tins kind partake Of the nature of Hills -
- pains and penalties, and are subject tn tbf
constitutional inhibition against the nassa -
offbills OF attainder, under which general dc
lgnatlon they are included. In the exclus;o,
which the statute adjudges, it imposes 8. MN
ishment for some of the acts specified which
were not punishable, or NAV not have nee,
punishable at the time when they were com
united and for all the acts it adds a ney
punishment to that then prescribed, and it i