State v. Garesche
| Decision Date | 30 September 1865 |
| Parties | STATE OF MISSOURI, Plaintiff, v. ALEXANDER J. P. GARESCHE, Defendant. |
| Court | Missouri Supreme Court |
At the calling of the State ex rel. Conrad v. Bernoudy, appealed from the St. Louis Circuit Court, Mr. Garesche, as counsel for respondent, appeared prepared to argue the case. Upon inquiry from the court, whether he had complied with the rule adopted by the court and taken the oath of loyalty prescribed by the new Constitution, he replied that he had not. The court then refused to permit him to argue the cause. Mr. Garesche then filed his written motion for leave to appear in the cause as counsel for respondent, upon a retainer for his services, until the final decision of the case; as also upon his right so to do, as being already an attorney and counsellor in the Supreme Court.
( Motion to vacate order and judgment.)
And now comes said Garesche in propria persona, and moves the court to vacate the order and judgment so made distraining him as a practitioner; because it impairs the contract existing between him and his clients; because the order of the court is illegal, unjust, and oppressive; because the oath is one prohibited by the Federal Constitution, and therefore this court should not enforce it, and its rule made at opinion of court and its judgment against said Garesche is therefore illegal; because the order that said oath must be taken is otherwise illegal and unconstitutional, and in violation of the Constitution of the United States.
| (Signed,) |
ALEXANDER J. P. GARESCHE.
Alexander J. P. Garesche, in propria persona, files his motion to vacate the order of the court debarring him as a practitioner. It is not very clear on what precise grounds of law this motion is based. We gather, however, that the mover contends that he has some right to practise as an attorney and counsellor-at-law in this court, which is protected by the Constitution of the United States from the operation of the Constitution of this State. He asks that the rule of court (which prohibits attorneys and counsellors from practicing in this court withou having taken the oath of loyalty as required by the Constitution of this State), and also the decision or order made in pursuance thereof, refusing him permission to appear and be heard as counsel for the defendant in the case of State v. Bernoudy, should be vacated, for the reason that they are prohibited by the Federal Constitution as impairing the obligation of contracts. It appears to be claimed, also, that the requirement of this oath is unconstitutional, as being an ex post facto law.
Our attention is not called to any other specific clause in the Constitution of the United States, which is supposed to be violated. Nor does it very distinctly appear, in reference to the clause concerning the obligation of contracts, whether the party here rests his objection upon his license to practice generally, or upon his particular engagement as counsel in the case named, or upon both; but we are of opinion that neither the one nor the other is a contract within the meaning of the clause in question.
Originally, no person could appear in court by attorney; but under certain ancient statutes attorneys were admitted to practice by the courts, and were in all points officers of the courts, having many privileges. They had to be examined by the judges for admission, and none were admitted but “such as were virtuous, learned, and sworn to do their duty.” Counsellors (barristers or sergeants) were admitted as such only upon sixteen years' standing; were also bound by a solemn oath to do their duty, and were of that honorable state and degree that they practiced for honor merely; could maintain no action for fees, and accepted them, not as a salary or hire, but as an honorary gratuity; and if guilty of deceit, collusion or any misdemeanor in practice, they were liable to be stricken from the rolls, “and punished by imprisonment and perpetual silence in the cots.” (3 Black. Com. 25; 1 Bac. Abr. 423.)
In nearly all the States of the Union, the subject of attorneys and counsellors is regulated by statutes. which require in general an examination for admission, a good moral character, and a solemn oath to support the Constitution and laws of the country. and faithfully to perform their duties-- (1 Dane's Abr. 294); and under the statute of this State, no person can practice law as attorney and counsellor, in any court of record, without a license from a court or judge; nor be licensed without producing satisfactory testimonials of good moral character, undergoing a strict examination as to his qualincations, and taking an oath to support the Constitution of the United State, and of this State, and faithfully to demean himself in practice to the best of his knowledge and ability. (R. C. 1855, p. 278.)
The new Constitution now requires of all attorneys and counsellors (as well those already admitted as those hereafter to be admitted), that they shall take an additional oath of loyalty before being permitted to practice in the future. We are unable to discover where in this oath, required of the party here, anything more than he was legally and morally bound to have done by the obligation of the oath, which he took when admitted to practice. The acts referred to in the oath as specified in the 3d section (Art. II.), are such only as, if done, might amount to treason, or to evidence (more or less direct and conclusive) either of treason, or of disloyalty and disaffection to the Government. Can it be too much to say, that this party, by virtue of the oath he had taken, was under legal and moral obligations not to be guilty of either? It is true, any person who has been guilty of treason may be tried in due course of law as for the criminal offence; and any attorney may be prosecuted and disbarred, under the act regulating Attorneys, for any of the offences therein mentioned. The provisions of the Constitution concerning the oath of loyalty do not in any way modify these offences, nor change the punishment or the evidence required. Bills of attainder assume judicial magistracy and declare persons to be guilty of high crimes, punishable with death, attainder of inheritable blood, or confiscation of property, without judicial trial; or (as bi...
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State v. Honeycutt
...Indeed, Missouri had adopted the current definition of “retrospective laws” at least twelve years prior to Bethurum in State of Missouri v. Garesche, 36 Mo. 256 (Mo.1865), overruled in part on other grounds by Murphy & Glover Test–Oath Cases, 41 Mo. 339, 362 (1867). In that case this Court ......
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State, ex rel. Selleck v. Reynolds
...on this subject were merely regulative and did not create the power. Strother v. State, 1 Mo. 605; State v. Watkins, 3 Mo. 480; State v. Garesche, 36 Mo. 256; State ex rel. Laughlin, 73 Mo. 443; State ex rel. v. Mullins, 129 Mo. 236; State ex rel. v. Harber, 129 Mo. 293; State ex rel. v. Sm......
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State v. Honeycutt
...Indeed, Missouri had adopted the current definition of "retrospective laws" at least twelve years prior to Bethurum in State of Missouri v. Garesche, 36 Mo. 256 (Mo. 1865), overruled in part on other grounds by Murphy & Glover Test-Oath Cases, 41 Mo. 339, 362 (Mo. 1867). In that case this C......
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State v. Reynolds
...and are not the creation of it. This is also true of this state. Strother v. State, 1 Mo. 605; State v. Watkins, 3 Mo. 480; State v. Garesche, 36 Mo. 256; State ex rel. v. Laughlin, 73 Mo. 443; State ex rel. v. Mullins, 129 Mo. 231, loc. cit. 236, 237, 31 S. W. 744; State ex rel. v. Smith, ......