Effects of a Pardon: Ex parte Garland.

The leading case on this subject is Ex parte Garland,287 which was decided shortly after the Civil War. By an act passed in 1865, Congress had prescribed that, before any person should be permitted to practice in a federal court, he must take oath asserting that he had “never voluntarily borne arms against the United States,” had never given aid or encouragement “to persons engaged in armed hostilities” against the United States, and so forth.288 Garland, who had “taken part in the Rebellion against the United States, by being in the Congress of the so-called Confederate States,” and so was unable to take the oath, had, however, received from President Johnson “a full pardon ‘for all offences by him committed, arising from participation, direct or implied, in the Rebellion,’ ”289 The question before the Court was whether, armed with this pardon, Garland was entitled to practice in the federal courts despite the act of Congress just mentioned. Justice Field wrote for a divided Court: “[T]he inquiry arises as to the effect and operation of a pardon, and on this point all the authorities concur. A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.”290

Justice Miller, speaking for the minority, protested that the act of Congress involved was not penal in character, but merely laid down an appropriate test of fitness to practice law. “The man who, by counterfeiting, by theft, by murder, or by treason, is rendered unfit to exercise the functions of an attorney or counselor-at-law, may be saved by the executive pardon from the penitentiary or the gallows, but he is not thereby restored to the qualifications which are essential to admission to the bar.”291 Justice Field’s language must today be regarded as too sweeping in light of the 1914 decision in Carlesi v. New York.292 Carlesi had been convicted several years before of committing a federal offense. In the instant case, he was being tried for a subsequent offense committed in New York. He was convicted as a second offender, although the President had pardoned him for the earlier federal offense. In other words, the fact of prior conviction by a federal court was considered in determining the punishment for a subsequent state offense. This conviction and sentence were upheld by the Supreme Court. Although this case involved offenses against different sovereignties, the Court declared in dictum that its decision “must not be understood as in the slightest degree intimating that a pardon would operate to limit the power of the United States in punishing crimes against its authority to provide for taking into consideration past offenses committed by the accused as a circumstance of aggravation even although for such past offenses there had been a pardon granted.”293


71 U.S. (4 Wall.) 333 (1867). back
71 U.S. (4 Wall.) at 334–35. back
71 U.S. (4 Wall.) at 336, 375. back
71 U.S. at 380–81. back
71 U.S. at 397. back
233 U.S. 51 (1914). back
233 U.S. at 59. back