--In the United States Supreme Court, to-day, pending, the case exports A. H. Garland
, of Arkansas
, asking to be allowed to practice as a counsellor, Hon. Reverdy Johnson
delivered the following argument against the constitutionality of the Congressional test oath:
"There being no antecedent government to our own, it is necessary to look into the Constitution
itself to see what powers were originally conferred upon Congress.
These being stated, Congress is authorized to pass all necessary and proper laws to carry them into effect.
These powers are to be so construed as to effect the object they are designed to accomplish.
It is the duty of the Court
to ascertain this, and then determine whether the legislation will defeat or secure the end. A restriction to the class of powers is that Congress shall pass no expost facto
law or bill of attainder.
The meaning of this is well understood to be any law which makes an act a crime which was not a crime when the act was committed.
But the law of 1865 does punish in point of fact, because it precludes the petitioner from the exercise of a lawful occupation, and strikes at a profession in which his hopes and ambition, and support of himself and family, are involved.
The punishment is severe, cruel, and unexampled.
It subjects him to all the obligations of the Constitution
while it takes from him all its advantages.
The original act of 1862 was not made applicable to attorneys in the courts of the United States
. Three years were suffered to elapse, when some one in Congress, who may have been peculiarly sensitive, and who saw danger in every man who had taken part in the rebellion, introduced a bill applying the provisions of the law to practicing attorneys.
The bill was submitted to the Judiciary Committee of the Senate, and by an unanimous vote was rejected.
It afterward, however, received the sanction of the Senate.
It was passed for the purpose of excluding the petitioner and all others similarly situated — to punish by excluding them from the United States
It was not for conduct subsequent, but antecedent to the passage of the statute.
This act comes within the clear meaning of the clause in the Constitution
that Congress shall pass no expost facto
law or bill of attainder.
No rights can be taken away by law unless the accused shall be first convicted of the offence charged; and these rights include the holding of office of emolument and trust.
Such laws as that of 1865 were penal statutes.
had argued last Friday that the admission to practice in the courts is not a natural right, but is created by law, and therefore may be regulated by law, and either given or taken away.
But it is not true that Congress can by law prohibit the appearance of counsellors in the courts of the United States
The Constitution provides that parties charged with crime shall have the benefit of counsel, and therefore Congress has no jurisdiction over that subject.
It is true that every court is vested by the common law with power to make regulations to exclude improper officers; but Congress has no right to say who shall or who shall not appear as counsel.
The obligation which is imposed on Congress to create courts carries with it an obligation on the part of the courts to admit counsel.
The safety of the citizen depends on the existence of the provision for the admission of counsel.
The preservation of liberty demands, as illustrated by the history of the world, that there should be such a body of men. In all the revolutionary struggles and despotisms which have disgraced the world, the accused have been denied counsel.
Congress would convert itself into a tyranny if, while establishing courts, it should exclude such a class of men. The act of Congress under review compels a man to swear against himself, while no power is given to the court to inquire into the facts.
No man, by the Constitution
, is compelled to testify against himself.
The petitioner, with others, was involved in the effort to establish their separate independence of the authority of the United States
, and resisted it by levying war. The punishment for treason anterior to the passage of the act of 1865 was death or imprisonment; but this act imposes an additional penalty, that persons thus accused shall not be admitted as attorneys in the United States
Congress, in 1862, passed a law saying, whenever the President
deemed it proper he might declare a general amnesty, while the Constitution
confers upon him the exclusive power of granting pardons and reprieves.
The pardon places the recipient of it in the position in which he stood before the commission of the crime, makes him a new man, and divests him of all antecedent consequences.
Suppose this law of 1865 had been made a part of the act for the punishment of treason, and the man committing the crime had been pardoned, would it not also have exempted him from the punishment for the offence, and prevented him from being excluded from practicing as an attorney in the United States
The pardon covers every part of the offence, and Congress cannot, after the pardon has been granted, pass a law to punish for the offence pardoned.
The disgraceful fact is presented to the world that Congress undertakes to interfere by denying the power of pardon, as conferred by the Constitution
exclusively on the President
Congress cannot say to the petitioner, you shall be tried for treason after having been pardoned.
If this was true of one class of crimes, it was true of all others. "
quoted from various judicial opinions to fortify the points of argument by him presented.
In conclusion, Mr. Johnson
spoke as follows, whilst the most impressive silence was preserved:
"Will the Court
indulge me with a word or two more?
Every right-minded man — every man who has within his bosom a heart capable of human sympathy — who is not dead to all the kinder and nobler feelings of our nature — who is not the slave to his own dishonor — of low, degraded passions, of hatred to his countrymen, or of political partisanship, solely bent on its own wretched triumph — reckless of the nation's welfare, but must wish, but must make it the subject of his daily thoughts and of his prayers to God, that the hour may come, and come at once, when all the States shall be again within the protecting embrace and shelter of the Union
, enjoying alike its benefits, (and greater were never vouchsafed to man,) contented and happy and prosperous, sharing in its duties, devoted to its principles, and participating in its renown."
holds the matter under advisement, and has adjourned until Tuesday next.