35 Ga. 285 | Ga. | 1866
The facts will be sufficiently stated in the opinion of the Court as delivered by—
William Law, Esquire, produced in Court satisfactory proof that in the year 1811, he was, by the Circuit and District Courts of the United States for the District of Georgia, duly admitted to practice as an attorney, proctor, solicitor, advocate and counsellor at the bar of said Courts, respectively; that he has been, since the year 1859, hitherto, attorney or proctor of record in the case of Finigan et. al. vs. The Ship Parliament — a cause now depending on the
Upon these proofs, Mr. Law asked to be allowed to appear and be heard in behalf of his clients in said cause, without being first required to take and subscribe the oath prescribed by the Act of Congress, approved January 21, 1865.
The petitioner was informed by the Court that this law of Congress was imperative, and could not be pretermitted. Thereupon, he submitted to the Court, that the statute was repugnant to the Constitution of the United States, and requested permission to show cause against it. This was granted, and during the early part of this term the case was fully and ably argued by the Petitioner, propria persona, by Ex-Gov. Joseph E. Brown, of the Northern District, and Thomas E. Lloyd, Esquire, of Savannah. The reply on behalf of the Government by LLenry 8. Fitch, Esquwe, United States Attorney, to the arguments of these learned counsel, was replete with legal scholarship.
Prefatory to entering upon the examination of the various questions regularly discussed, so much of the original Act of Congress of July 2, 1862, and its supplement of January 2i, 1865, as is thought essential to an easier comprehending of the grave and important inquiries now before the Court, may be cited. The original Act is entitled “ An Act to prescribe an oath of office, and for other purposes.” It declares 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,
“ I, A. 33., do solemnly swear (or affirm) lliafc 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 persons engaged in armed hostility thereto; that X have neither sought nor accepted, nor 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 within 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 hue 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.”
And tlio supplementary Act provides: “ That no person after the date of this Act shall be admitted!» the bar of the SupreiHT'Qmirt 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 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 2, 1862,’ according to the form and in the manner in said Act provided,” etc.
The point having been made, whether an attorney, oij> counsellor at law, as such, holds a public office or place, or is to be regarded as a mere officer of the Court, — and there being a diversity of opinion among learned judges on this point, — it is proper that the views of this Court should be expressed. In Lord Coke’s time, and prior thereto, an attorney — but not so a counsellor — was, it seems, considered a public officer; for he says : “ That in an action of debt by an attorney for his fees, the defendant shall not wage his law, because he is compellable to be his attorney.” Co. Litt. 295 a. Afterwards, however, Lord Holt (1 Sal., 87) held, that he was not compellable to appear for any one, unless he takes his fee, or backs the warrant; and so the law has con
Having collated and well considered these State authorities, I am of the opinion that the law is with the negative of the question. Nor do I think that Congress — and it is the intention of the National Legislature, as found in the statute, that guides this Court — considered them public officers. In article one, section six, cl. turn of the Constitution, it is declared, that “ no person holding any office under the United States shall be a member of either house during his continuance in office.” Has it ever been seriously questioned that practicing as an attorney or counsellor in the Eederal Courts, is inconsistent with holding, at the same time, the office of Senator or Representative in Congress ? Neither was there any statutory prohibition to practicing in any of the Eederal Courts until the passage of the Act of Congress, approved March 3, 1863 ; and the inhibition is confined to the Court of Claims. 12 Stats, at Large, 165. See Amendment to Rule II. of Supreme Court United States, 2 Wall vii.
Two questions — each of importance in the investigation of this case — -spring from the preceding conclusion : Whether this Court, in admitting Mr. Law to its bar, acted judicially or ministerially ? And whether, if his admission was a ju
The Constitution ordains that “ the judicial power of the United States shall be vested in one Supreme Court, and in such inferior Courts as Congress may from time to time ordain and establish.” Art. iii, sect. i. Accordingly, at the first session of Congress, an Act was passed “to establish the judicial Courts of the United States.” The additional courts established by it are the Circuit and District Courts ; and notwithstanding these Courts are denominated inferior Courts, they are not so considered in the technical use of that term. 4 Dall., 11; 5 Cranch, 135; 8 How., 586. The District Courts of the United States, under their own proper powers, are Courts of law and admiralty. The distinctive grades in the legal profession which prevail in England, and to a limited extent in some of the courts of this country, have no substantial recognition in the Circuit or District Courts of the United States; in these the offices of attorney, proctor, advocate and counsellor are usually combined in one person. The 35th section of the judiciary Act of 1789 declares “ that in all the Courts of the United States, the parties may plead and manage their own causes personally, or by the assistance of such counsel or attorneys at law, as by the rules of said Courts respectively, shall be permitted to manage and conduct causes therein.”
Directly bearing upon the first of these questions is the case of The Commonwealth ex rel, etc., of Breckenridge v. The Judges of the Court of Common Pleas of Cumberland County, 1 S. & R., 187. A motion was was made for a mandamus to be directed to the Judges of that Court, commanding them to proceed to the examination of the relator, and • if found competent, to admit him to practice in that Court, as an attorney, etc. Tilghman, C. J., said, “ If it becomes a question whether the rules have been complied with, the Court must decide. Can this be a ministerial act?jor rather can anything be more decidedly j udicial ? The right of Mr. Breckenridge has been judicially decided; and if he is left
The case of McLaughlin v. The District Courts 5 W. & S. 272, was a motion for a rule to show cause why a mandamus should not issue to the district court, commanding it to restore the relator. Rogers, J., announcing the opinion of the court, said : “It is ruled in The Commonwealth ex rel., &c., v. The Judges of the Court of Common Pleas, 1 S. & R. 187, that the admission of an attorney by a court of common pleas is a judicial and not a ministerial act, and for that reason not the subject of a mandamus. That case is an authority directly adverse to the present application ; in principle there is no conceivable distinction between them. If the admission of an attorney to the bar be a judicial act, by parity of reasoning, his dismission must be judicial also.”
In the matter of the application of Henry Cooper, 8 Smith, 67, the first Head Note is in these words: “In the admission of attorneys and counsellors the Supreme Court acts judicially. The function is not of an executive character.” Seldon, J., in delivering the opinion of the court, referring to ex parte Secombe, 19, How. 13, and to other cases, said : “ If the removal or suspension of an attorney be, as was held in these cases, a judicial act, it is difficult to see how the admission of an attorney is any the less so ; especially when, as here, the court in the act of admission is required to pass, not only upon the sufficiency of the evidence of certain facts, but upon the constitutionality and validity of a statute, and thus to exercise the highest judicial functions ever entrusted to a court.”
The ease, of Secombewas briefly as follows: “ The supreme court of the Territory of Minnesota was empowered by a Territorial statute to remove any attorrney for wilful mis
The authorities from which these quotations are taken, are in themselves sufficient and conclusive to show, not only that the admission of an attorney, or counsellor, but likewise his suspension, or disbarment, is a judicial act or judgment. The admission of an attorney, or counsellor, where no fraud lias been practiced on the Court, gives him the office for life. This privilege, franchise, or right to practice in the Court, has annexed to it the condition that his character shall continue fair, and that he will not abuse his office by criminal or immoral conduct. As an attorney, or counsellor, in my judgment, does not hold a public office or place, there is no forfeiture for nonuser: — for if he chooses to practice his profession, he may do so; if not, not; he may withdraw from the practice and resume it at pleasure; he may be raised to the Bench, as was the petitioner himself, — and' where, from 1829 to 1835, in our highest State judicial tribunal, he presided with great learning and honor — and return to the bar again. Vide. In the matter of Dormenon, 1 Mar. 129. Carthew, 478.
The second question is, whether the petitioner, by virtue
In the matter of John Baxter, decided at the May Term, 1865, of the Circuit Court of the United States for the Eastern District of Tennessee, Trigg, J., construing the Act of Congress of Januaay 24, 1865, said: “ For if he” [the attorney] “neglects or refuses to take the prescribed oath, he is as effectually deprived of his office and the fees and emoluments thereof, as he could be by a forfeiture of the same upon a regular trial and conviction by due process of law, for the of-fences mentioned. These fees and emoluments,” continues the judge, “ are as much the property of the attorney as any choses in action can, in law, be the property of any other citizen ; and, being property, the law in question, to the extent mentioned, punishes the attorney by & forfeiture of his property.” Opinion of the Honorable Connally F. Trigg, Pamph. p. 10. Memphis, Tenn., 1865. This case and Cohen v. Wright, are the only reported cases that I have seen, in which this question came regularly before a court. In Cohen v. Wright, the Court, Crocker, J., delivering the opinion— in which Norton, J., specially concurred — said : “ The right
Comparing the ruling of the United States Circuit Court, on this point, with that of the supreme court of California, it will be seen that the views of these Courts are opposed; at least, there is some diversity of opinion. The former Court shows that an illegal result follows, by reason of the Act of Congress depriving the attorney of his office. In other words, if the attorney will not, or cannot take the oath, the statute itself deprives him of the fees and emoluments becoming due to him while in possession of his office under the sanction of the Court. The latter Court^-if my interpretation is not erroneous — holds that no unlawful consequence follows, because the attorney has no property in his office, in the constitutional sense of that term.
That an attorney, or counsellor has a property in his fees and emoluments by the common law, or by contract expressed or implied with his client, and legal modes^of recovering the same, is well established. 1 Bac. Ab. Attorney (F.) 2 Gr. on Ev. sec. 139: 14 Geo. 87.
The first division of the last clause of the fifth article of
Whether, when an attorney or counseller is, by the Court, regularly licensed and admitted to practice law, this bestows upon him a property in his profession or office, is a question so interwoven with nice distinctions, that it is far from being easily resolved; but the present inclination of my mind is that it is not property, in the sense and import of that word or term as used in the Constitution; still, it is a right, privilege, or species of franchise under the immediate sanction and protection of the Court. I do not, however, entertain the remotest doubt of the power of Congress, acting within the limits of its Constitutional authority, to prescribe by law who may be attorneys or counsellors of the national Courts, their qualifications, mode of admission, suspension and disbarment.
Seldon, J., in Waynehamer v. The People, 3 Ker., 433, gave the following definition of property: “ Property is the
The petitioner having brought into Court a charter of full pardon and amnesty, granted to him by the President of the United States, and filed with the Clerk an authenticated copy of his acceptance of the same, urged that this act of Executive clemency relieves him from being required, before he can appear and be heard as an attorney or counsellor in this Court, to take and subscribe the oath prescribed by the Act of January 23,1865, because, as he says, this pardon and amnesty has restored him to all the rights subject to forfeiture by reason of his having “voluntarily participated in the rebellion.” The Constitution (Art. ii., sec, ii, cl. 1), affirmatively vests in the President of the United States the sole power to grant reprieves and pardons, except in cases of impeachment. And the very nature and necessity of such an authority in every government, arises from the infirmities incident to the administration of human justice.
In ex parte Wells, 18 How., 307, Mr. Justice Wayne, in delivering the opinion of the Supreme Court of the United States, made use of the following language: “Withoutsuch a power of clemency, to. be exercised by some department or functionary of a government, it would be most imperfect and deficient in its political morality, and in- the attributes of Deity, whose j udgments are always tempered with mercy.” Mr. Speed, Attorney-General of the United States, in his Opinion of May 1,1865, elucidates in a masterly manner, the Constitutional power of the President to grant pardon and
I will not venture to illustrate or expand these citations, or to discuss this subject at length, but will bring tny remarks to a close in a very few words. Tiie language of the Act is explicit; and although it applies to a single order of pei’sons only, it is gratuitous to say that it was the intention of Congress to limit the oath to any particular individual or class of this order; the plain words of the Act are, that it shall comprehend every attorney or counsellor upon his admission to the bar of a national Court, or who had been admitted previous to the 4th of March, 1865. Yet the effect of the statute is, that while of force, neither pardon nor amnesty avail the petitioner, so as to make him a “ new man.” 4 Bla. Com. 402.
Was this result — this impossibility — foreknown to Congress ?
Admit that this statute is of the character contemplated by Sir William Blackstone. “But where,” says that author, “ some collateral matter arises out of the general words and happens to be unreasonable, there the judges are, in decency, to conclude that this consequence was not fore
Chancellor Kent. (1 Com., 448,) says: “ If there be no constitutional objections to a statute, it is with us as absolute and uncontrollable as laws flowing from the sovereign power under any other form of government.” Here we have a written Constitution, forming the paramount and fundamental law of the nation, wherein is designated the powers and duties of the national Legislature, as well as of the other departments of the government; therefore, it must follow as a consequence, that none of the co-ordinate branches can infringe the power of any of the others — each division, legislative, executive, and judicial, must remain confined within its own Constitutional limits.
It was ingeniously argued by one of the learned counsel, ex-Gov. Joseph E. Brown, that this Act imposes a penalty which cannot be remitted, and inflicts a punishment beyond the reach of Executive clemency. Whether this statute really passes the Constitutional boundary, and is subversive of the pardoning power of the President, is a question of so nice and delicate a nature, that the solution of it would demand the most profound consideration; but, as the case before the Court does not absolutely require this question to be resolved, it will not he attempted. See Story on the Constitution, sec. 1498.
On the part of the petioner it was contended that the Act of January 24,1865 — (in which the oath of office of July 2,
Rills of attainder are statutes enacted by the supreme legislative power, pro re nata, inflicting capital penalties, ex post facto, without conviction in the regular course of administration through courts of justice.
Rut it has been contended in argument that the person or persons to be affected must be named in the bill, otherwise it is not a statute of this character. Dr. Wooddeson in his Vinerian Lectures, 13 Law, Lib. 510, lends a general substantiation to this position. He says : “ It has been usual in times of domestic rebellion to pass acts of parliament inflicting the penalties of attainder on those by name, who liad levied war against the king, and had fed from justice, provided they should not surrender by a day prefixed.” Acts of attainder were generally framed in accordance with the foregoing extract, but not always so; for there are in the statute-books, both of England and of Ireland, many statutes of attainder wherein whole classes of people, in bulk, were attainted, adjudged and convicted of high treason, without being named or otherwise legally designated ; and without being called, arraigned, or tried. But a distant allusion alone to these hills of attainder, — and which, in several material respects, differ from those mentioned by Wooddeson, and other writers, — is not sufficient to an understanding of the grave question under immediate examination; therefore, so much of such of them as may direct to a legitimate legal conclusion, may not inaptly, I think, he transcribed. At a Parliament held at Westminster, the statute of 26 Hen., viii., c 25, 3 Stats, of the Realm, 529, was passed. It is entitled “ An Act concerning the Attainder of Thomas Fittzgaralde, Erie of G-ildare.” It attaints first the Earl of high treason and deprives him of his estate, title, ¿te. Sec. II declares, “ That all such persons which be or heretofore have been comforters, partakers, abettors, confederates, and adherents unto the said Erie in his said false and traitorous acts and purposes, shall, in likewise stand and he attainted, adjudged
This boon is denied in the next bill of attainder against Kildare, his uncles, and adherents. It will, therefore, be cited to show the terrible severity of some of the attainders.
Some two years subsequent to the enactment of the preceding, the 28 Hen., viii, c 18, Id. 691, was passed. This statute is entitled, “ An Act concerning the Attainder of Thomas Fittzgaralde, and of his V Uncles.” First reciting the 26 Hen., viii, c 2o, it declares that, “ The said Thomas, late Erie of Gyldare, by whatsoever name or names he be called; James Fittzgaralde, Knight; John Fittzgaralde; Bichard [Fittzgaralde] ; Olyver Fittzgaralde; and Walter Fittzgaralde, be attainted, adjudged and convicted of high treason;” * * * * and that the said Thomas shall loose his title, dignity and estate of Earl of Gyldare. Seetion II, as in the preceding Act, attaints “ all such persons which be or heretofore have been comforters, abettors, partakers, confederates or adherents unto the said James Fittzgeralde, late Erie, or unto his said uncles, and every of them. Section III. “ And be it further enacted, by the authority aforesaid, that the same attainder, judgment, and conviction against the said comforters, abettors, partakers, confederates and adherents, shall be as strong and effectual in law against them, and every of them, as though they and every of them, had been specially, singularly and particularly named by their proper names and surnames in [the] said Act.” Sec
Shortly after the passing of this attainder — and without any trial whatever — the young Kildare and his five rebel uncles were hanged at Tyburn. Herbert's Life and Reign of Henry the Eighth. P. 491. Ed. of 1682.
In Bishop Burnet’s history of the Reformation, 1 — Part 2 — 243, ed. of 1825, is printed at length, Parliamentary Roll, Act 60, anno regni trricesimo secundo, Henry 8, and this statute enacts, inter alia, that Thomas, late Earl of Essex, “ shall bo and stand by authority of this present parliament, at-tainted and convicted of heresy and high treason, and shall be adjudged an abominable and detestable traitor, and shall have and suffer the pains of death.” lie was executed without more ado.
Tlie 24th Eliz., ch., 1 Irish Stats, at Large, 391, attainted and convicted James Eustace, late Viscount Baltinglas, and his brothers, Edmund, Thomas, Walter, and Richard, of high treason; and by sec. II., prescribed as follows: “ That as well the said James, and all others the said offenders and persons before named, as suck others who by actual rebellion, and other traitorous practices have committed like abominable and detestable treason and rebellion, and have died .and been slain in their said actual rebellion and treasons, or otherwise been, by martial law, executed for the same, and every of them, for said abominable and detestable treasons, by them and every of them, most abominably
Hero the living and the dead alike were attainted and convicted. Many other acts might be cited, in which deceased persons were attainted. Let one (and it is the last of the kind, I believe,) suffice : The 12 Oar., ii c. 30, attainted the rein ains of the great Lord Protector Ceomwell, and others who had satin judgment on Charles the First. And by order of the parliament they were taken out of their graves and hanged in their shrouds. 1 Pepys Diary, 149. Ed. 1854.
The foregoing citations are amply sufficient to show (among other matters pertinent to this subject) that to constitute a statute of attainder, it was not necessary to name the persons accused, nor to call upon them to appear and defend before judgment.
Other occasional acts of parliament of a kindred nature to bills of attainder — but which inflict a punishment milder than death — known as bills of pains and penalties, will be noticed. Treason itself has, in some instances, been punished by these statutes, as in the case of Lord Monson, Sir Arthur Haselrig and others, who had been members of the High Court of Justice. 12 Car., ii, c. 11, secs. 38 and 39. The 19 Car., ii., c. 10, adjudged tha Earl of Clarendon a banished man for life, if ho did not return to England within a certain period, and surrender himself for trial. The 9 Geo., 1, c. 18, 5 Stats, at Large, 4YJ, ordered Bishop Atterbury to depart the realm on, or before, a fixed day; sentenced him to perpetual exile, and made it felony in him to return; and deprived him of all his offices, dignities, etc. This bill was passed, on what was, at the time, a bare supposition, that he was conspiring to bring in the Pretender.
Of the nature of bills of pains and penalties, and also
In England a distinction is taken between bills of attainder, and bills of pains and penalties; but when carefully noted and compared they will be found akin, and in close fellowship ; and the following extract will prove the nearness of their identity. While the bill to inflict pains and penalties upon John Plunkett, was pending before the House of Jjords, it was ordered by that House, that the opinion of the judges be asked, “ Whether if John Plunkett shall, after the passing of this bill, be indicted for the treasons of which he stands charged in this bill, he can plead this act in bar of such indictment?” And the judges, through the Chief Justice, answered: “ That, if the said bill should pass into a law, he may plead the same in bar of such indictment.” 16 State Trials, 365. If the Act of Congress of January 24, 1865, or any part of it, be in the nature of a bill of attainder, and as such would effect the petitioner, it cannot be deemed any the less so because he is not named in it. And like reason would hold good, if it be technically, or in the nature of a bill of pains and penalties. Dube on the Constitutional Jurisprudence of the United States, Lect. xi. Mr. Justice Stoby says : “ But in the sense of the Constitution, it seems, that bills of attainder include bills of pains and penalties; for the Supreme Court have said “ A bill of attainder may affect the life of an individual, or conliscate his property, or may do both.” Story on the Constitution, sec., 1338, citing; Fletcher v. Peck, 6 Cranch., 138, and 1 Kent, Lect. xix.
Bestowing upon this particular question the utmost care and solicitude — and with unfeigned regret of my inability to discuss it in a manner answerable to its gravity — I cannot regard the retrospective part of this oath otherwise than as a bill of pains and penalties — possessing the characteristic attributes of a bill of attainder, except the death penalty. In the arbitrary, technical sense it may not be so called ; but when it is so plainly observable that by its own inherent force it effectuates the destruction of the rights of a large order of persons, and is substantially and in effect a bill of pains and penalties, I know no other term in our language adequate to express it. By operation of the legislative will alone, the petitioner is already adjudged — adjudged without due process of law; and, although forthcoming, not called to trial, according to the general laws of the land; the statute affecting his person as directly and accurately, as though he were named in its body — disenabling him from appearing or being heard, as an attorney or counsellor, at the bar of this Court, and thereby depriving him of the 'right to acquire and own property, by his professional skill and labor.
The following additional objections were presented: First, that the Act of Congress of January 24th, 1865, is a penal law. This may be disposed of at once. After a careful analysis of this statute, and perceiving, as I apprehend, the manner in which it necessarily affects the party now before this Court, it seems clear, on principal and on authority, that the several retrospective divisions of the oath are highly penal. The following cases are referred to, in support of this expression: Leigh’s case; Dorsey’s case; In the matter of Shorter et. al.; In the matter of Baxter. Agreeing with these authorities, this question may be considered settled, so far as this Court is concerned, until such time as the Supreme Court of the United States shall have decided it otherwise.
The second objection taken was, that the Act is in violation of so much of the ninth section of the first article of the Constitution as declares that no “ ex post faeto law shall be passed and also that it contravenes that clause of the fifth section of the first article of the amendments to the Constitution, which prohibits any person from being compelled, in any criminal case, to be a witness against himself, or being deprived of life, liberty and property without due process of law.
In the case of Leigh, supra, Mr. Leigh applied to the Supreme Court of Appeals of Yirginia for admission to its bar. But he was met by a statute of that State, requiring “ every person wdio shall be appointed to any office or place, civil or military, under the commonwealth, shall, in addition to' the oath now prescribed, take the following oath,” to-wit: “ That he hath not been engaged in a duel by sending or accepting a challenge to fight a duel, or by fighting a duel, or
In the matter of John Dorsey, supra. On the seventh of January, 1826, the Legislature of Alabama passed an Act, commanding all public officers, and attorneys and counsellors at law, before entering upon the duties of their offices or stations, to take the followin g oath, to-wit: “ I do solemnly swear that I have neither directly or indirectly, given, accepted, or knowingly carried a challenge in writing or otherwise, to any person or persons (being a citizen of this state) to fight in single combat, or otherwise, with any deadly weapon, either in, or out of the state, or aided or abetted in the same, since the first day of January, 1826 and that he will not hereafter give, accept, or knowingly carry a challenge, etc. “ And any attorney or counsellor at law, failing or refusing to take the said oath, shall not be permitted to practice, as such, in any court of this state.”
The validity of this Act came regularly before the court, and a majority of the members decided the retroactive portion of the oath to be unconstitutional and void. Collier, O. J., dissented. Goldtiiwaite, J., in delivering the opinion,
The case of Cohen v. Wright, supra, arose on an Act, passed April 25, 1863, by the legislature of California, entitled “An act to exclude Traitors and Alien Enemies from the Courts of Justice in Civil Cases.” The 3d section of the Act reads: “No attorney at law shall be permitted to practice in any court in this state until he shall have taken, and filed in the office of the county clerk of the county in which the attorney shall reside, the oath prescribed in this act; and for every violation of the provisions of this section, the attorney so offending shall be considered guilty of a misdemeanor, and on conviction shall be fined in the sum of one thousand dollars.” The following is the form of oath to be taken by plaintiffs, defendants, and attorneys, to-wit: “ I [here insert the name of the plaintiff] do solemnly swear that I will support the Constitution of the United States, and the constitution of the state of California; that I will bear true faith and allegiance to the Government of the United States, any ordinance, resolution, or law of any state, or territory, or of any convention or legislature thereof, to
In the matter of Baxter, supra, Trigg, J., said: “Now, assuming that Mr. Baxter has been guilty of some one or
Busteed, J., in Shorter et. al., supra, declared the Act to be “highly penal in its general scope and effect.” The Judge also determined it to be ex post faeto ; and gave the following cogent illustration in support of his decision on this point: “ One of the clauses in the act of Congress of the 2d of July, 1862, and which is embraced in the oath required by the act of January 21, 1865, is as follows: ‘ That I have neither sought, nor accepted, nor attempted to exercise the functions of any office whatever, under any authority, or pretended authority, in hostility to the United States.’ This abjuration is not confined to any period. It covers the life
It was likewise the opinion of the Court that the statute compelled the party to be a witness against himself. “ It is unworthy of the great question,” observed the Judge, “ to say that a man is not obliged to put himself in the supposed dilemma; that all he has to do is not to attempt the practice of his profession in the National Courts, and he will not run the risk of testifying to his own guilt. This is the merest and the shallowest sophistry. If he keep silence, he is thereby deprived of a constitutional right; if he speak, he becomes a ‘ witness against himself.’ Judgment of condemnation instantly follows the coerced acknowledgment of guilt, and an act of the legislature is thus made to take the place and exercise the functions of the judicial office. Now, if Congress may bring about such a result to aman, is it not doing, by indirection, wha¿ it is expressly prohibited'from doing directly ? ”
Concurring in the decision of the United States Circuit Court in the case of Baxter, and that of the Hnited States District Court in Shorter et. al., it might seem unnecessary to offer further or other argument on subjects which have already been so satisfactorily treated; but as the same questions which arose before those tribunals were also discussed
In Fletcher v. Peck, 6 Cranch, 138, it was said by the Supreme Court of the United States that an ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed. “This definition,” says Kent, “is distinguished for its comprehensive brevity and precision, and it extends to laws passed after the act, and affecting a person by way of punishment of that act, either in his person or estate.” 1 Kent, 409. And the Supreme Judicial Court of Massachusetts, in Ross’ case, say: “Adding a new punishment, or increasing the old one for the same offence, would be ex post facto.” 2 Pick., 165. “ Ex post facto laws relátelo penal and criminal proceedings.” 1 Kent, 409. Carefully observing the foregoing definitions, it may be said that an ex post facto law is a retroactive penal or criminal law, and no other.
The design and object of a law is to regulate conduct, to prescribe and fix a rule or guide for it; and, therefore, a law attempting to regulate past conduct undoes itself, and involves an inconsistency, a contradiction, and an absurdity. The attaching of a now or cumulative consequence to a past transaction does not regulate it, for a by-gone act is beyond the reach of regulation. Sir William Buacicstoxe says that all laws should be made “ to commence in futuro, and be notified before their commencement, which is implied in the term ‘ prescribed.’
There are several clauses, or divisions, in the retrospective portion of the oath ; the first is as follows : “ I do solemnly swear (or affirm) that I have never voluntarily borne arms against the United States since I have been a citizen thereof.”
If a citizen of the United States, or an alien while he or his family and effects are under the protection of the government, voluntarily bears arms against the United States, it is a levying of war against them ; and this is treason, the iieaviest and most- atrocious offense known to the law; it is
By observing this clause, it cannot but be noticed that, although it is couched in negative language, it nevertheles implies, affirmatively, that the party taking the oath may have borne arms against the United States within the period during which he has been a citizen. He does not swear posis tively that he has not borne arms against the United States since he has been a citizen thereof; but, on the contrary, his oath is pregnant with the admission that he has; and so, by implication, he inculpates himself, and at the same moment exculpates himself by testifying that he did not commit it voluntarily • and thus, the facts and the law being blended, he swears to matter of law, or rather to a conclusion of law.
It is a well settled rule, and knows no exception, that an act done from compulsion or necessity is not a crime; but the degree of necessity that will excuse is often, however, a nice matter to decide. Respublica v. McCarty, 2 Dall., 85, United States v. Vigol, id. 346. 1 Russ, on Crimes, 664; 665; 1 Bishop on Criminal Law, secs. 441 to 448. Allison Crim. Law, 627, 673; 1 Hume Crim. Law, 50, 51. The Argo, 1 Gall. 150, 157. The New York, 3 Wheat. 59.
It is in evidence, as has been seen, that Mr. Law, the petitioner, fell within the 13th exception of the Proclamation of May 29th, 1865, and that he received and accepted a grant of pardon and amnesty from the President of the United States. This grant was inspected by the Court and declared to be a valid act, and that the recipient ought to have the full legal benefit of it.
Now, if this pardon, in addition to absolving the offence, also restores to him property, not judicially condemned to the United States, by parity of principle, it likewise restores to him his property, or right of property, in the fees and other emoluments accruing to him for professional services as an attorney, proctor, &c.
Suppose a member of the bar were indicted for treason,
But, notwithstanding the accused has the benefit of the pardon adjudged to him by the Court, yet he cannot be permitted to appear and be heard in any Federal Court, unless he shall have taken and subscribed an oath, (which oath is already quoted,) the first clause, as already mentiom d, is,in substance, that he has never voluntarily borne arms against the nation since he has been a citizen thereof. In this clause, as is perceived, is inclosed the fact that he did not voluntarily commit the very offence for which he stood indicted, or was arraigned, or tried, or adjudged, and which particular offence he himself, in open Court, by his plea, confessed he had committed voluntarily.
Surely the exacting of this oath is a punishment; — it effectually disenables all who have done any of the acts mentioned in the oath, though they have received and accepted a full pardon and amnesty for the offences ; it is not a mere temporary suspension from the practice, but a disbarment — a perpetual exclusion from the national Courts. The Act punishes the party in a manner in which he was not punishable when the act was committed, and in a manner not conformable to the fundamental law of the land. The requirement of this oath brings its retrospective clauses directly within the ruling in Boss’ case: “Adding a new punishment,” said the'Oourt, “or increasing an old one for the same offence, would be ese -post facto.”
Applying the principles advanced in the case supposed to this of the petitioner, the same results will be obtained.
In these remarks, I have touched upon the first clause
It may not be wholly foreign to notice the fact that, if the party required to take the oath be a native citizen of the United States, every word of the retrospective part of the oath would affect every hour of his past life. 2 Kent, 258 note. 4 Bla. Com., 23; Boyd v. Banta, Coxe, 266; 1 Russ. on Crimes, 1 to 10; 1 Bishop on Crim. Law, sec. 460, 461, 3d Ed.
Recurring briefly to the eases of Leigh, and Dorsey, and Cohen v. Wright„ it will be seen that in Leigh’s case the law only required the attorney to swear that he had not transgressed the statute “since the passage thereof.” Notwithstanding this oath may, perhaps, on strict construction, be deemed prospective, yet it was censured in strong language by a majority of the court.
In Dorsey's case, the oath to be taken was, not that the party had not violated the provisions of the statute since its enactment, but from a period prior.thereto. As already observed, a majority of the court decided the retroactive portion of this oath to be unconstitutional and void.
In Cohen v. Wright, the court expressed some doubt as to the validity of the oath (quoted in full in the former part of this opinion) “so far as it was a declaration of past conduct.” But, it remarked: “ The Act is not retrospective as it merely requires the party to swear that he has not committed any treasonable act since its passage.” And near the close of the opinion it was said: “ The law warned him what the result would be, and although it may be severe, it is a consequence of his own voluntary violation of the fundamental rights of society.”
To require a person, under any circumstances, to take an oath of innocence of crime, even when he had warning by a pre-ordained law — ‘and warning, it is said, is the end of punishment — -is a rigid exaction. Tet it was cautiously obseiv
Bnt the particular question now before this Court, is of still greater importance, because the oath of expurgation required by the Act of Congress, approved January 24, I860, goes back and searches the conscience of the petitioner, who is a native citizen, born in 1191, during the whole course of his life — retroacting upon him for a period little less than three-quarters of a century anterior to its passage by Congress.
That the imposing of the retrospective portions of this oath is virtually compulsory, and 'effectually punitive, cannot, in my judgment, be denied. It makes the party swear to a life long innocence, and to testify against himself; and herein it is also an infraction of the fundamental law of the land.
And while preparing this opinion, I have not been unmindful of the magnitude, nay, awfulness of the responsibility which devolves upon a Court in pronouncing against even a part of a solemn Act of the Congress of the United States.
JUDGMENT.
Upon argument had on said motion of the petitioner, Mr. Law, and after full consideration of the matters of fact and of law involved, it is ordered and adjudged by the Court, that the Act of Congress, approved January twenty-fourth, eighteen hundred and sixty-five — so far as it was intended to apply to this case — is repugnant to the Constitution of the United States.
Motion granted.
Savannah,
