Year: 1867




that he never did the act charged, he
should never hold Office Of honor or
profit. Suppose the minority should
get the control Of the State govern
ment, nothing could prevent them
from requiring that every person, as a
condition to holding office of honor,
profit or trust, should take an oath
that he never advocated, advised or
supported the imposition of the pres
ent expurgation.


Under this provision the most fla
grant violations of justice may be
committed and individuals deprived
OF their civil rights. A question rose
in New York in 1852 upon a statute of
the State which involved an expurga-
tory oath as a means Of punishment.
The subject was regarded so import
ant us to engage the attention of emil
nent lawyers and distinguished states
men of the time. Alexander Hamil-
ton demonstrated that il was in viola
tion ofthe Constitution, which secured
the rights and liberties Of the people
as the result Of the revolution. 1t was
wis, axiom that every man is be-
lieved to be innocent until he is prov ed
guilty. The reversing of this was to
hold out n bribe to perjury IL de-
prived the citizen of the advantage of
leaving the burden of proof on his
prosecutor. Let us not forget that
the trial by jury should remain invio-
late forever, etc.


The same view was embraced by
the judiciary on analogous questions.
The court said, in conclusion, that the
judgment Of the Supreme Court OF the
State of Missouri must be reversed,
with directions to enter Judgment to
reverse the Judgment of the Circuit
Court of Pike county, and also with
directions to said Circuit Court to
enter an order discharging the defend
ant from imprisonment and permit
ting him to 90 without delay.


Associate Justice Field then said he
was also instructed to deliver the
opinion Of the court in the matter of
the petition er pdrte of A. II. Garland.
On the goth of July, 1862, Congress
passed an act prescribing the form of
an oath to be taken by officers elected
under the Constitution of the United
States, with the exception of the Pres
ident. On the oath of July, 1865,
Congress passed supplementary act
embracing attorneys and counsellors.


1t provides that no person shall be
admitted to the bar OF the Supreme
Court of the United States or at any
time after the 4th of March next, be
admitted to the bar of any Circuit
or District Court of the United States,
or the Court of Claims as an attor-
ney or counsellor, or be allowed to APP
pear by virtue of any previous admis-
sion TO any special powers of attor-
ney, unless he first takes and sub /
scribes to the oath prescribed in the
act to prescribe an oath of office, ap-
proved July 2, 1862, which said oath,
so taken and subcribed, shall be pre-
served among the files of such court,
and that any person who shall falsely |
take said oath shall be guilty of pcr-
jury, and on conviction shall be liable |
to the pains and penalties of perjury
and the additional pains and penalties
prescribed in said act.


Al the December term in 1860, the
petitioner was admitted as an attor-
ncy of this court, and subscribed TO |
the oath required. BY the rule the
attorney, as a condition of being ad- |
mitted to the bar, must have practic-
ed in the highest court of the State
in which he lives, and his public and
private character must be fair. In
1861 the State of Arkansas of which |
Mr. Garland was a citizen, attached |
itself to the so-called Confederate
States.


The petitioner followed the for
tunes of that State, and was one of
the representativcsin in the lower House,
and was in the Senate of the Con
federacy at the time of the surrender
of the Confederate forces. In July, |
1865, he received full pardon OF all OF. |
fenses committed by him, and he now
produces his pardon ano asks permits
sion to continue practice as nm attor-
ney without taking the oath, which
he is unable to take by reason of the
Office he once held in the Confederate
government


He says the act of July, 1865, is sun
constitutional and void, but If legal,
that he is relieved by the pardon of
the President. The court proceeded
to examine the character of the oath
in question, saying, as it cannot be
taken by all attorneys, it operates as
a perpetual declaration of exclusion
from one of the professions and advo-
cations of life, aud therefore must be
regarded as a punishment for an Of
fensc which may not have been pun
ishable at the time the offense was
committed and is thus brought into
the character of an cr post fdcto law,
as in the Missouri case just decided.


The Office of attorney or counsellor
is not like an office created by Con-
gress and which may be burdencd by
Attorneys arc not officers
of the United States they are officers
of the court, and are admitted ms such
by the court on the ground of their
legal learning and good private char
actcr The admission TO the bar is a
endorsement


From the 'ime Of entering upon
the practice they become officers of
the court and hold Office during good
behavior, and can be deprived of it
only by the court, their admission and
exclusion is mere ministerial power.