Argument for the United States. lawyers. But Congress undertook, in the original Judiciary Act, to say that in all 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 the said courts respectively shall be permitted to manage and conduct causes therein." Congress gives power to the court to prescribe the oath; and to exercise over its counsel all wholesome control. What further may Congress do? If under the authority thus given to you over attorneys you have a right to prescribe an additional oath, may not Congress do the same thing? Is there any constitutional objection there? Has Congress exhausted all its power with reference to such a body of men as attorneys and counsellors in the courts of the United States, so that it can do nothing further and lay down no further rule for admission or exclusion, for oath, for bond, for security? Not at all. The very first exercise of the power under which we take our first right to be attorneys and counsellors here remains; it is not exhausted; and no one can assign any reason at this moment why Congress, in its power over the attorneys and counsellors of this court, may not prescribe rules of admission, residence, and a thousand other things, that might be fixed under a constitution like ours. In the States we do not leave so much to our courts in regard to attorneys and counsellors as Congress has, very wisely, I think, left to this court. We prescribe almost everything there by statute; fix all the qualifications through the legislative department, to be observed as to those who practise before the judicial department. Then I take it as clear, so far as these persons are concerned, these attorneys and counsellors at law, that there is a power in this court to prescribe oaths and additional oaths, and just as clear a power in Congress to prescribe oaths and additional oaths. Having shown that the subject-matter of an oath to be taken by attorneys and counsellors of this court is within the competency of legislative authority and regulation, quite Argument for the United States. as fully as it is within the competency of this court by virtue of the Judiciary Act; having shown that there is no constitutional objection to the exercise of this power by Congress, and that the only possible objection that can be taken to it, is that Congress has once exercised the power by law; when I have shown that that exercise of power did not exhaust the power of the legislature, then I have shown that so far this is a valid law and a valid oath. All that it is necessary for me to say is this: if the rule is valid, the law, which has somewhat more of solemnity and force than a rule, is equally valid. I do not ask for it any greater validity, but equality, so far as mere validity is concerned in the passage of the law or the passage of the rule. If I am right here, what will the bench say to a pardon of the President, who, when a lawyer is ejected from this court as unfit to practise here, grants a pardon for the very offence for which the court has ejected him? For instance, the lawyer may have committed forgery or perjury, things which make a man, when convicted of them, very unfit to practise as an attorney and counsellor at law. In consequence of that, the court may disbar him. Then the President pardons him, absolves him from the conviction of perjury and forgery, and, according to the position of the opposite side, restores him at once to his right to be here, and defies the rule which you have made, and your authority to exclude him. If that cannot be done in opposition to a rule, can the same thing be done in opposition to a law passed by the legislative body that had authority over the subject-matter? Clearly not. II. Now, passing over the question of the power of Congress to do it, was it not eminently fit that such a law should be passed at the time; that Congress, then charged with the duty of saving the country, should exclude from its courts members of the bar in actual rebellion against it? It was eminently proper then. What! only exclude those who have not yet committed treason, and make them swear that they will not commit treason; and have no power to exclude those who have committed treason, and who come to de Argument for the United States. mand as a right to practise here, with the admission on their lips that they are traitors, and, if you please, mean to continue traitors; for I am speaking of the thing as it was in 1862, when that law was passed. What! after treason is committed, and the traitor comes here flagrante delicto, without pardon, if you please, asking no clemency, comes here to practise law, and this oath is opposed to him, he says, "It does not bind me; I have committed treason, it is true; I have never recanted; I have not been pardoned; but that oath is unconstitutional, so far as I am concerned, and takes away my high privilege of practising in this court at this time." He says that it is ex post facto and void, because it makes a thing a crime which was not a crime at the time! Does it impose a criminal penalty with regard to penal matters? That is the meaning of penalty in that sense. We have now here before us a law that simply says, that a party who has committed a certain act shall not practise law in the courts of the United States. Is that making a new crime? Is that adding a new penalty in the sense of criminal penalties? Not at all. The act prescribing the oath does not say, that when a man comes here and admits that he has committed the offence, the court shall try and punish him for that offence. It says, that in order to practise he shall take an oath that he has never committed treason, that he has never joined the Rebellion. That is all. He may take the oath or not as he pleases. No one compels him to take it. Is it a penalty, when he must invoke the penalty on his own head if there is penalty? That oath does not punish him, nor authorize anybody to punish him, nor say that he has done anything heretofore that is punishable in the sense of crime or delict. He may stay away; no one can touch him. He may choose to practise in the State courts; and that is well. All that the law says is, "If you come here, we require you, before we give you the privilege to appear in this court, to state under oath that you have not been in rebellion against this government." That is the whole of it. Reply for the Petitioner. Mr. Reverdy Johnson, in reply, for the petitioner : I. The ninth clause of the first article of the Constitution declares that no "ex post facto law shall be passed." So solicitous were the framers of the Constitution to prohibit the enactment of such laws, that they imposed upon every State government the same restriction. They considered laws of that character to be "contrary to the first principles of the social compact, and to every principle of sound legislation." So says Mr. Madison in the 44th number of the Federalist. In the same number he tells us that, however obvious this is, "Our own experience has taught us nevertheless that additional fences against these dangers ought not to be omitted. Very properly, therefore, have the convention added this constitutional bulwark in favor of personal security and private rights." Mr. Hamilton, in the 78th number of the same work, advocates the necessity of an independent judiciary, upon the ground of its being "essential in a limited constitution," and adds: "By a limited constitution I understand one which contains certain specified exceptions to the legislative authority, such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice in no other way than through the medium of the courts of justice, whose duty it must be to declare all acts, contrary to the manifest tenor of the Constitution, void. Without this, all the reservations of particular rights or privileges would amount to nothing." Is not the act in question, in its application to Mr. Garland, an ex post facto law? These terms are technical, and were known to the common law of England when the Constitution was adopted. Their meaning, too, was then well understood. An English writer says that such a law is one "made to meet a particular offence committed." Another defines it to be "a law enacted purposely to take cognizance of an offence already committed." The same meaning was given to it as early as 1798, in Calder v. Bull.* And in the subsequent case of Fletcher v. Peck,† it * 3 Dallas, 386. † 6 Cranch, 128. Reply for the Petitioner. was again defined and adjudged to be a law which renders an act punishable in a manner in which it was not punishable when it was committed." This definition, as is truly said by Chancellor Kent, is "distinguished for its comprehensive brevity and precision;" and Kent correctly tells us that laws passed after the act, and affecting a person by way of punishment, either in his person or estate, are within the definition."* The design, therefore, of this restriction was to prohibit legislation punishing a man, either in his person or estate, for an act for which there was no punishment provided when the act was done, or from imposing an additional punishment to that which was then imposed, or to supply a deficiency of legal proof by admitting testimony less than that before required, or testimony which the courts were before prohibited from admitting. With this understanding of the term, is not the act of 1865 an ex post facto law? Does it not punish Mr. Garland for an act in a manner in which he was not punishable when it was committed? Does it not punish him in fact? Educated for the profession, his hopes centred in his success in it, his highest ambition being to share its honors, his support and that of his family depending upon success; can any man doubt that a law which deprives him of the right to pursue that profession, which de feats such hopes, which deprives him of the opportunity to gratify so noble an ambition, and which deprives him of the means of supporting himself and those dependent upon him, inflicts a severe, cruel, and heretofore in this country an unexampled punishment? Our statutes, indeed, are full of provisions showing that, in the judgment of Congress, similar consequences are punishments to be inflicted for crime. Disfranchisement of the privilege of holding offices of honor, trust, or profit, is imposed as a punishment upon those who are convicted of bribery, forgery, and many other offences. And how crushing is such punishment! To be excluded from the public ser * 1 Kent's Commentaries, 409. |