Ex parte Garland

CourtUnited States Supreme Court
Writing for the CourtIn same case, in Supreme Court, where the opinion was delivered by Spencer
Citation18 L.Ed. 366,4 Wall. 333,71 U.S. 333
PartiesEX PARTE GARLAND
Decision Date01 December 1866

71 U.S. 333
18 L.Ed. 366
4 Wall. 333
EX PARTE GARLAND.
December Term, 1866

Page 334

ON the 2d of July, 1862, Congress, by 'An act to prescribe an oath of office, and for other purposes,'1 enacted:

'That hereafter every person elected or appointed to any office of honor or profit under the government of the United States, either in the civil, military, or naval departments of the public service, excepting the President of the United States, shall, before entering upon the duties of such office, take and subscribe the following oath or affirmation:

"I, A. B., do solemnly swear (or affirm) that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to

Page 335

persons engaged in armed hostility thereto; that I have neither sought nor accepted, not attempted to exercise the functions of any office whatever, under any authority or pretended authority in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power, or constitution with the United States, hostile or inimical thereto. And I do further swear (or affirm) that, to the best of my knowledge and ability, I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God;' &c.

'Any person who shall falsely take the said oath shall be guilty of perjury; and, on conviction, in addition to the penalties now prescribed for that offence, shall be deprived of his office, and rendered incapable forever after of holding any office or place under the United States.'

On the 24th of January, 1865,2 Congress passed a supplementary act extending these provisions so as to embrace attorneys and counsellors of the courts of the United States. It is as follows:

'No person, after the date of this act, shall be admitted to the bar of the Supreme Court of the United States, or at any time after the fourth of March next, shall be admitted to the bar of any Circuit or District Court of the United States, or of the Court of Claims, as an attorney or counsellor of such court, or shall be allowed to appear and be heard in any such court, by virtue of any previous admission, or any special power of attorney, unless he shall have first taken and subscribed the oath prescribed in 'An act to prescribe an oath of office and for other purposes,' approved July 2d, 1862. And any person who shall falsely take the said oath shall be guilty of perjury, and, on conviction,' &c.

By the Judiciary Act of 1789, the Supreme Court has power to make rules and decide upon the qualifications of attorneys.

At the December Term of 1860, A. H. Garland, Esquire, was admitted as an attorney and counsellor of the court, and took and subscribed the oath then required. The second rule, as it then existed, was as follows:-

Page 336

'It shall be requisite to the admission of attorneys and counsellors to practise in this court, that they shall have been such for three years past in the Supreme Courts of the States to which they respectively belong, and that their private and professional character shall appear to be fair.

'They shall respectively take the following oath or affirmation, viz.:

"I, A. B., do solemnly swear (or affirm, as the case may be) that I will demean myself as an attorney and counsellor of this court, uprightly, and according to law, and that I will support the Constitution of the United States."

There was then no other qualification for attorneys in this court than such as are named in this rule.

In March, 1865, this rule was changed by the addition of a clause requiring an oath, in conformity with the act of Congress.

At the same term at which he was admitted, Mr. Garland appeared, and presented printed argument in several cases in which he was counsel. His name continued on the roll of attorneys from then to the present time; but the late Rebellion intervened, and all business in which he was concerned at the time of his admission remained undisposed of. In some of the cases alluded to fees were paid, and in others they were partially paid. Having taken part in the Rebellion against the United States, by being in the Congress of the so-called Confederate States, from May, 1861, until the final surrender of the forces of such Confederate States first in the lower house, and afterwards in the Senate of that body, as the representative of the State of Arkansas, of which he was a citizen—Mr. Garland could not take the oath prescribed by the acts of Congress before mentioned, and the rule of the court of March, 1865.

The State, in May, 1861, passed an ordinance of secession, purporting to withdraw herself from the Union; and afterwards, in the same year, by another ordinance, attached herself to the so-called Confederate States.

In July, 1865, Mr. Garland received from the President

Page 337

a pardon, by which the chief magistrate, reciting that Mr. Garland, 'by taking part in the late Rebellion against the government, had made himself liable to heavy pains and penalties,' &c., did thereby

'Grant to the said A. H. Garland a FULL PRADON AND AMNESTY for all offences by him committed, arising from participation, direct or implied, in the said Rebellion, conditioned as follows: This pardon to begin and take effect from the day on which the said A. H. Garland shall take the oath prescribed in the proclamation of the President, dated May 29th, 1865; and to be void and of no effect if the said A. H. Garland shall hereafter at any time acquire any property whatever in slaves, or make use of slave labor; and that he first pay all costs which may have accrued in any proceedings hitherto instituted against his person or property. And upon the further condition that the said A. H. Garland shall notify the Secretary of State in writing that he has received and accepted the foregoing pardon.'

The oath required was taken by Mr. Garland and annexed to the pardon. It was to the purport that he would thenceforth 'faithfully support, protect, and defend the Constitution of the United States and the union of the States thereunder; and that he would in like manner abide by and faithfully support all laws and proclamations which had been made during the existing Rebellion with reference to the emancipation of slaves.'

Mr. Garland now produced this pardon, and by petition filed in court asked permission to continue to practise as an attorney and counsellor of the court, without taking the oath required by the act of January 24th, 1865, and the rule of the court. He rested his application principally upon two grounds:

1st. That the act of January 24th, 1865, so far as it affected his status in the court, was unconstitutional and void; and,

2d. That, if the act were constitutional, he was released from compliance with its provisions by the pardon of the President.

Page 338

Messrs. Reverdy Johnson and M. H. Carpenter, for the petitioner, Mr. Garland, who had filed a brief of his own presenting fully his case.

I. In discussing the constitutionality of any law of Congress, the real question is, would the act accomplish a result which the Constitution forbids? If so, no matter what may be the form of the act, it is unconstitutional.

This court, in Green v. Biddle,3 McCracken v. Hayward,5 has held, that although the States may legislate at pleasure upon remedies merely, yet if the practical effect of such legislation, in a given case, be to burden the right of a creditor unreasonably, or withdraw the debtor's property from the reach of the creditor, then such law is unconstitutional, as impairing the obligations of the contract. In Bronson v. Kinzie, C. J. Taney says:

'Whatever belongs merely to the remedy may be altered according to the will of the State, provided the alteration does not impair the obligation of the contract. But if that effect is produced, it is immaterial whether it is done by acting on the remedy, or directly on the contract itself. In either case it is prohibited by the Constitution.'

Again he says:

'And no one, we presume, would say that there is any substantial difference between a retrospective law declaring a particular contract or class of contracts to be abrogated and void, and one which took away all remedy to enforce them, or incumbered it with conditions that render it useless or impracticable to pursue it.'

In the Passenger Cases,6 this court held that State laws, nominally mere health or police laws, were unconstitutional, because, in their effect, they amounted to a regulation of commerce; and, therefore, were an exercise of power vested exclusively in the Federal government.

Page 339

The judges of this court hold office during good behavior. An act of Congress passed to-day, requiring them to take an oath that they were not above forty years of age, and providing, as the act in question does in relation to attorneys, that, 'after the 4th March next, no justice of this court should be admitted to his seat, unless he should take such oath, even if he were previously a justice of said court,' would be a palpable violation of the Constitution, because it would amount to a disqualification to any man above forty years of age, and be equivalent to providing that no justice of this court should remain in office beyond that age; while the Constitution provides that the judges shall hold during good behavior.

The Constitution provides,7 that 'no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.' Now, an act of Congress, or of a State, declaring that before any heir should...

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633 practice notes
  • Citizens for Equal Protection, Inc. v. Bruning, No. 4:03CV3155.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • May 12, 2005
    ...v. Missouri, 4 Wall. 277, 71 U.S. 277, 4 Wall. 277 (1866) (involving disqualification of priest from the clergy); and Ex Parte Garland, 4 Wall. 333, 71 U.S. 333, 18 L.Ed. 366 (1866) (involving lawyers barred from practice of One type of forbidden punishment is "`the doctrine of disqualifica......
  • Law Students Civil Rights Research Coun., Inc. v. Wadmond, 68 Civ. 2917
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 17, 1969
    ...between promissory oath and test oath of the kind here involved was recognized long ago. Ex parte Garland, 71 U.S. (4 Wall.) 333, 18 L.Ed. 366 (1866). The oaths involved here are not promissory oaths to support the Constitution of the State and the United States as in the case of the consti......
  • Ashwander v. Tennessee Valley Authority, Nos. 403
    • United States
    • United States Supreme Court
    • February 17, 1936
    ...$1,150,000. 2 See, also, Samuel v. Holladay, 21 Fed. Cas. pages 306, 311, 312, No. 12,288. 3 E.g., Miller, J., in Ex parte Garland, 4 Wall. 333, 382, 18 L.Ed. 366; Hepburn v. Griswold, 8 Wall. 603, 610, 19 L.Ed. 513; Adkins v. Children's Hospital, 261 U.S. 525, 544, 43 S.Ct. 394, 67 L.Ed. 7......
  • Schick v. Reed 8212 5677, No. 73
    • United States
    • United States Supreme Court
    • December 23, 1974
    ...Presidential pardon of a contempt of court against an argument that it violated the principle of separation of powers); Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366 (1867). Additionally, we note that Presidents throughout our history as a Nation have exercised the power to pardon or commute ......
  • Request a trial to view additional results
624 cases
  • Citizens for Equal Protection, Inc. v. Bruning, No. 4:03CV3155.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • May 12, 2005
    ...v. Missouri, 4 Wall. 277, 71 U.S. 277, 4 Wall. 277 (1866) (involving disqualification of priest from the clergy); and Ex Parte Garland, 4 Wall. 333, 71 U.S. 333, 18 L.Ed. 366 (1866) (involving lawyers barred from practice of One type of forbidden punishment is "`the doctrine of disqual......
  • Law Students Civil Rights Research Coun., Inc. v. Wadmond, 68 Civ. 2917
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 17, 1969
    ...between promissory oath and test oath of the kind here involved was recognized long ago. Ex parte Garland, 71 U.S. (4 Wall.) 333, 18 L.Ed. 366 (1866). The oaths involved here are not promissory oaths to support the Constitution of the State and the United States as in the case of the consti......
  • Ashwander v. Tennessee Valley Authority, Nos. 403
    • United States
    • United States Supreme Court
    • February 17, 1936
    ...$1,150,000. 2 See, also, Samuel v. Holladay, 21 Fed. Cas. pages 306, 311, 312, No. 12,288. 3 E.g., Miller, J., in Ex parte Garland, 4 Wall. 333, 382, 18 L.Ed. 366; Hepburn v. Griswold, 8 Wall. 603, 610, 19 L.Ed. 513; Adkins v. Children's Hospital, 261 U.S. 525, 544, 43 S.Ct. 394, 67 L.Ed. 7......
  • Schick v. Reed 8212 5677, No. 73
    • United States
    • United States Supreme Court
    • December 23, 1974
    ...Presidential pardon of a contempt of court against an argument that it violated the principle of separation of powers); Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366 (1867). Additionally, we note that Presidents throughout our history as a Nation have exercised the power to pardon or commute ......
  • Request a trial to view additional results
4 books & journal articles
  • The Separation-Of-Powers Counterrevolution.
    • United States
    • Yale Law Journal Vol. 131 Nbr. 7, May 2022
    • May 1, 2022
    ...are two possible exceptions in which the Court considered the relationship between presidential pardons and statutes: Ex parte Garland, 71 U.S. 333 (1866), and United States v. Klein, 80 U.S. 128 (1871). Both cases arose out of the presidential pardons of ex-Confederates. Yet their holdings......
  • The South Counterattacks: the Anti-Naacp Laws
    • United States
    • Political Research Quarterly Nbr. 12-2, June 1959
    • June 1, 1959
    ...persons of their liberty and property. As the Georgia supreme court has said,52 the right to make a 45 4 Wall. 277, 320 (1867).46 4 Wall. 333 328 U.S. 303, 315-316 (1946).48 McAulliffe v. New Bedford, 29 N.E. 517 (sup. jud’l ct. of Mass., 1892). 49 Commentaries on the Laws of England (From ......
  • Can a Presidential Pardon Trump an Article Iii Court’s Criminal Contempt Conviction? a Separation of Powers Analysis of President Trump’s Pardon of Sheriff Joe Arpaio
    • United States
    • The Georgetown Journal of Law & Public Policy Nbr. 18-1, January 2020
    • January 1, 2020
    ...the ‘judicial power of the United States’ would be a mere mockery.”). 71. Ex parte Grossman, 267 U.S. 87, 120–21 (1925); Ex parte Garland, 71 U.S. 333, 380 (1866). 72. Garland, 71 U.S. at 336–37. 2020] PRESIDENTIAL PARDONS AND CRIMINAL CONTEMPT 215 either before legal proceedings are taken,......
  • The Political Roots of Executive Clemency
    • United States
    • American Politics Research Nbr. 34-6, November 2006
    • November 1, 2006
    ...death”: The ideological paradox of criminal disenfranchisementlaw in the United States. Wisconsin Law Review,9, 1045-1137.Ex Parte Garland, 71 US 333 (1866).Federal Register of the National Archives and Records Administration of the United States.(2000). “Rules governing petitions for execu......

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