Ex parte Garland
Whether a federal statute requiring attorneys to swear a loyalty oath — affirming they had never supported the Confederacy — before practicing in federal courts violated the Constitution's prohibitions against bills of attainder and ex post facto laws, and whether a full presidential pardon relieved the recipient of that requirement.
The Decision
5-4 decision · Opinion by Stephen J. Field · 1867
Majority Opinion— Stephen J. Fielddissent ↓
In a sharply divided 5–4 decision, the Supreme Court ruled in Garland's favor. Justice Stephen J. Field wrote the majority opinion, holding that the federal test oath was unconstitutional and that Garland's presidential pardon entitled him to resume his practice before the Court.
Justice Field's opinion tackled the constitutional issues head-on. He reasoned that the test oath was not genuinely about professional qualifications. Instead, it was designed to inflict punishment on a defined class of people — those who had supported the Confederacy — by stripping them of their ability to practice law. Because this punishment was imposed by the legislature rather than through a judicial trial, the oath operated as a bill of attainder, which Article I, Section 9 of the Constitution expressly forbids Congress from passing. Field emphasized that the Constitution's framers included the ban on bills of attainder precisely to prevent legislatures from singling out individuals or groups for punishment without the protections of a court proceeding.
The majority also concluded that the oath was an ex post facto law. When Garland engaged in Confederate service, no federal law made that conduct a disqualification from legal practice. By retroactively imposing a professional penalty for past behavior, Congress had done exactly what the Constitution's ex post facto clause was designed to prevent. Field wrote that the clause covers not only criminal penalties in the traditional sense but also any law that retroactively inflicts punishment or changes legal consequences for past acts.
Finally, the Court addressed the pardon power. Justice Field declared that a presidential pardon reaches both the punishment prescribed for an offense and all its legal consequences. Once President Johnson granted Garland a full pardon, it was as though the offending conduct had never occurred. The government could not use that pardoned conduct as the basis for denying Garland any right or privilege, including the right to practice law. This broad reading of the pardon power became one of the most frequently cited aspects of the decision.
The ruling was a significant check on Reconstruction-era Congress and signaled that the Court would not permit unlimited legislative power to impose disabilities on former Confederates outside the normal criminal justice process.
Dissenting Opinions
Samuel F. Millerjoined by Salmon P. Chase, Noah H. Swayne, David Davis
Justice Miller argued that the test oath was a legitimate exercise of Congress's power to regulate qualifications for practice before federal courts, not a punishment. He contended that the majority had improperly expanded the definitions of bills of attainder and ex post facto laws far beyond their historical meaning, and that Congress had a valid interest in ensuring that officers of its courts were loyal to the government.
- The right to practice law before federal courts is a privilege granted by Congress, and Congress has broad discretion to set qualifications for that privilege, including loyalty requirements.
- The oath requirement was a prospective rule about who may appear in court, analogous to other professional qualifications, and did not constitute punishment for past crimes.
- The majority's sweeping definition of bills of attainder and ex post facto laws would dangerously limit the ability of legislatures to establish reasonable professional standards in times of national crisis.
- A presidential pardon forgives criminal offenses and their penalties but should not be read to override Congress's independent authority to prescribe qualifications for practicing before the federal courts.
Background & Facts
Augustus Hill Garland was a prominent Arkansas lawyer who had been admitted to practice before the United States Supreme Court in 1860, just before the Civil War tore the country apart. When Arkansas seceded from the Union, Garland followed his state into the Confederacy. He served first in the Confederate House of Representatives and then in the Confederate Senate throughout the war. After the Confederacy's defeat, President Andrew Johnson granted Garland a full pardon in July 1865, restoring his rights as a citizen.
The problem for Garland was a federal law passed by Congress on January 24, 1865, which expanded an earlier 1862 statute. This law required every person seeking to practice law in any federal court to first take what was known as a 'test oath' or 'ironclad oath.' The oath demanded that the person swear they had never voluntarily borne arms against the United States, never given aid, countenance, counsel, or encouragement to persons in rebellion, and never held any office under any authority hostile to the United States. Garland, having served as a Confederate senator, obviously could not take such an oath honestly.
Garland petitioned the Supreme Court directly, asking to be allowed to resume his law practice before the Court without taking the oath. He argued that the oath requirement was unconstitutional on multiple grounds and that, even if it were valid, his presidential pardon should excuse him from it. Because this was a matter involving the Court's own bar of practicing attorneys, the Supreme Court had original jurisdiction to consider the petition.
The case was argued in March 1866 alongside Cummings v. Missouri, a companion case involving a similar state-level loyalty oath. Both cases raised fundamental questions about how far Congress and state legislatures could go in punishing former Confederates — not through criminal trials, but through laws that stripped them of their ability to earn a living. The Supreme Court handed down its decisions on both cases on January 14, 1867, during the tense early years of Reconstruction when the political branches were locked in fierce disputes over how to treat the defeated South.
The Arguments
Garland argued that the federal test oath was unconstitutional because it operated as a bill of attainder — a legislative punishment targeting a specific group without a judicial trial — and as an ex post facto law, punishing conduct that was not illegal when it occurred. He further argued that his full presidential pardon wiped away all legal consequences of his Confederate service, including any oath requirement.
- The oath did not test present loyalty or fitness to practice law; it was designed solely to punish people for past political conduct during the rebellion.
- When Garland joined the Confederacy, there was no federal law making his service a disqualification from legal practice, so applying the oath to him retroactively made it an ex post facto law.
- The presidential pardon power under Article II of the Constitution is broad and absolute, and a full pardon must restore all rights and privileges, including the right to practice a profession.
The government argued that Congress had the legitimate power to set qualifications for attorneys practicing in federal courts, and requiring a loyalty oath was a reasonable exercise of that power to ensure the integrity of the judicial system, not a punishment.
- Practicing law before federal courts is a privilege, not a right, and Congress may set whatever qualifications it deems appropriate for admission to the federal bar.
- The oath requirement was a prospective qualification for practice, not a criminal penalty, and therefore did not constitute a bill of attainder or an ex post facto law.
- The presidential pardon power does not override Congress's authority to establish qualifications for professional practice in the federal courts.