Ex parte Garland

Petitioner
Augustus H. Garland
Respondent
United States
Petitioner's Claim
That the act of Congress of 24 January 1865, which required all lawyers who practiced before a federal court to swear that they had no sympathy toward theConfederacy, was unconstitutional.
Chief Lawyers for Petitioner
Matthew H. Carpenter, Reverdy Johnson
Chief Lawyers for Respondent
Henry Stanbery, U.S. Attorney General; James Speed
Justices for the Court
Nathan Clifford, Stephen Johnson Field (writing for the Court), Robert CooperGrier, Samuel Nelson, James Moore Wayne
Justices Dissenting
Salmon Portland Chase, David Davis, Samuel Freeman Miller, Noah Haynes Swayne
Place
Washington, D.C.
Date of Decision
14 January 1867
Decision
Federal and state governments may not require loyalty oaths.
Significance
Two important precedents were re-established. First, the president has full power to pardon anyone of all crimes, either before, during or after persecution and that the pardon clears the individuals of any consequences that may have arisen from the action from which they were to be punished. Second, laws may not be established that would punish someone, in the broadest sense of theword, ex post facto.
During the December term of 1860, the petitioner, Garland, was admitted as anattorney and counselor of the Supreme Court, and took and subscribed the oath then required. In March of 1865, this rule was changed by the addition of aclause requiring administration of the oath, in conformity with the acts ofCongress of 2 July 1862, and 24 January 1865. The act of 2 July 1862, required that every person hereafter "elected or appointed to any office of honor orprofit under the government of the United States . . . shall subscribe the following oath: I do solemnly swear that I have never voluntarily borne arms against the United States since I have been a citizen thereof, etc . . . " This act was extended to attorneys in the United States after 24 January 1865, and stated that no person should be permitted to practice in the Supreme Courtor other courts unless they took the oath set forth in the act of 2 July 1862.
On 15 July 1865, Garland was pardoned by President Andrew Johnson for takingpart in the Civil War. He then produced this pardon for the Supreme Court andasked permission to continue to practice as an attorney and counselor of theCourt, without taking the above oath. He rested his application upon two grounds: first, the act of 24 January 1865, so far as it affects its status in the Court, is unconstitutional and void; second, that if the act was constitutional, he is released from compliance with its provisions by the pardon of the president.
Justice Field delivered the opinion of the Court, for the petitioner, with Justices Wayne, Nelson, Grier and Clifford concurring. The judgment was declared on the following three grounds:
1) A pardon reached the punishment prescribed for an offense and the guilt ofthe offender. If granted before conviction it prevents any of the penaltiesand disabilities consequent upon conviction from attaching; if granted afterconviction it removes the penalties and disabilities and restores him to allhis civil rights. The petitioner in this case having received a full pardon for all offenses committed by his participation, direct or implied, in the Rebellion, is relieved from all penalties and disabilities attached to the offense of treason, committed by such participation. For that offense he is beyondthe reach of punishment of any kind. He cannot, therefore, be excluded by reason of that offense from continuing in the enjoyment of a previously acquired right to appear as an attorney and counselor in the Federal courts.
2) The act of Congress of 24 January 1865 operates as a legislative decree excluding from the practice of law in the courts of the United States all parties who have offended in any of the particulars enumerated. Exclusion from thepractice of law in the federal courts, or from any other avocations of lifefor past conduct is punishment for such conduct. In the exclusion which the act adjudges it imposes a punishment for some of the acts specified which werenot punishable at the time they were committed, and for other of the acts itadds new punishment to that before prescribed, and it is thus within the inhibition of the Constitution against the passage of an ex post facto law.
3) Attorneys and counselors hold their offices during good behavior, and canonly be deprived of it for misconduct ascertained and declared by the judgment of the court after opportunity to be heard has been afforded. Their admission and their exclusion are the exercise of judicial power only. The admittedpower of Congress to prescribe qualifications for the office of attorney andcounselor in the federal courts cannot be exercised as a means for inflictionof punishment for the past conduct of such officers, against the inhibitionof the Constitution.
It was thus ordered that the prayer of the petitioner be granted and the amendment of the second rule of the court, which requires the oath prescribed inthe act of 24 January 1865, to be taken by attorneys and counselors, having been unadvisedly adopted, be rescinded.
Justice Miller dissented with Justices Chase, Swayne, and Davis. Miller stated that it is at all times the exercise of delicate power of the Supreme Courtto declare that the Congress of the nation has assumed an authority not belonging to it and, by violating the Constitution, has rendered void its attemptat legislation. Unable to see this incompatibility in the act of Congress, but entertaining a strong conviction that the act is within the competency ofthe Congress, he dissented.
Related Cases

• Cummings v. Missouri, 4 Wall. 277 (1867).
  
• In re North, 62 F.3d 1434 (1994).
  
• In re Abrams, 689 A.2d 6 (1997).