Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1867-01-24

An exclusion irOto any OF the professions
or any of the ordinary avocations OF lie Tor
past conduct can be regarded In no other
| light than as punishment for such con-
! dnct. The exaction of the oath is the mode
| provided for ascertainine the parties upon
| whom the act is intended to operate, and,
: instead of lessening, increases its oblec-
| tionable character. All enactments OF this
kind partake of the nature of bills OF pains
and PENALTIES, and are subject to the con-
| stitutiOnal Inhibition against the passage
of bills of attainder. under which general
designation they are included. In the eX-
ciusion which the statute adJudges 1t I'M
poses punishment for some OF the acts
| specified, which were not punishable. or
NAV not have been Punishable at the time
they we're committed and f'r ali the acts
it adds a new punishment to that then pre-
scribed, and 1t is thus brought within the
fourth inhibition of the Constitution
against the passage Of an er post fftctO law.
In the case of Cummings VS.. The State
of Missouri, just decided, we had occasion
to consider at length the meaning of q bill
of attainder and an er post f0cto law IN the
clause Of tle Constitution forbidding their
passage by the States, and it Is unnecessary
to repeat here what we there said. A like
prohibition is contained in the Constitution
against enactments of this kind by Con
gress, and the argument presented Ill that
case against certain clauses of the COnstltu-
ton of Missouri is equally applicable to
the act Of Congress under consideration Ill
this case.
The profession of an attorney and coun-
selor is not like an Office created by an act
of Congress, which depends for it's contin-
uance, its powers and its emoluments on the
will of its creator, and the possession of
which may be burdened with any condi-
tons not prohibited by the Constitution
Attorneys and counsellors are not officers
of the United States. They are not elected
or appointed in the manner prescribed by
the Constitution for the election or appoint
ment Of such officers. They are officers Of
the court, admitted as such by its order up
Oh evidence of their possessing sufficient
legal learning and fair character. Since
the statute Of 4th Henry ". it has been
the practice in England, and it has always
been the practice i'll this country, to
obtain this evidence by an examination of
the parties In this court the fact Of the
admission of such officers in the highest
court of the States to which they respective
ly belong for three years preceding their
application is regarded as sufficient evidence
of the possession of requisite legal learn
ing, and the statement of counsel moving
their admission sufficient evidence that
fair The order of admission is the judg-
ment of the court that the parties possess
the requisite qualifications as attorneys and
counsellOrs, and are entitled to appear as
such and conduct causes therein. From
its entry the parties become officers OF the
court, and are responsible to it for profess
sional misconduct.
They hold their office during good be-
havior, and can only be deprived of it for
misconduct, ascert;tined and declared by
the Judgment of the court after opportuni-
ty to be heard has been afforded. Their
admission and their exclusion are not the
exercise of a mere ministerial power. The
court IS not in this respect the register Of
the cdicts of any other body. 1t is the eX-
ercise Of judicial power, and has been SO
held III numerous cases. 1t was SO held by
the Court Of Appeals of New York in the
matter of the application of Cooper for aa
mission. Attorneys and counsellors,"
said the court, "are not only officers OF the
court, but officers whose duties relate al
most exclusively to proceedings OF a Judi
cial nature, and hence their appointment
may, with propriety, be entrusted to the
courts and the latter, in performing this
duty, may very justly be considered as en-
gagged i'll the exercise of their appropriate
judicial functions" In e.c pa, te Secomb, a
mauhmouS to the Supreme Court of the
Territory of Minnesota to vacate an order
removing an attorney and counsellor was
denied by this court on the ground that the
removal was a judicial act
I've are not aware of any case" said
the court, ''where n 1n0nIuneuS WAS issued to
an inferior tribunal commanding it to re-
verse or annul its decision, where the de-
cision WIS in its nature a judicial act, and
within the scope of its jurisdiction and dis
cretiOn." And i'll the same case the court
observed that s. has been well settled by
the rlles and practice of common-law courts
that it rests exclusively with the court to
determine who is qualified to become one
of It's officers Us All attorney and counsellor
and for what causes he ought to be remoy-
cd. The attorney and counsellor, being
10y the solemn judicial act of the court
clothed with his office, does not hold it as
Il matter of grace and favor ; the right
which it confers upon him to appear for
Su1tOrS, and to argue causes, Is something
more than mere indulgence, revokable at
the pleasure of the Legislature it is
right of which lie can only be deprived by
the court for moral or professional delin
qiency. The Legislature may undoubted-
ly prescribe qualifications for the Office,
with which he must conform, as it may,
where it has exclusive jurisdiction, pre-
scribe qualifications for the pursuit of any
Of the ordinary avocatons of life but to
constitute ID qualification, the condition OF
thing prescribed must be attainable, in the
DRY at least, by every one. That which
from the nature of things, or the past con-
dition or conduct OF the party, cannot be
attained 10y every citizen, does not fall
within the definition of the term. TO all
those by whom it is uuattainable it is dis
qualification which operates as a perpetual
bar to the office. The question in this case
is not as to the power of Congress to pre-
scribe qualifications, but whether that pow
er has been exercised as u means for the
infection of punishment against the prohi-
bition Of the Constitution. That this re-
suit cannot be effected indirectly by q State
under the form of creating qualifications,
we have held in the case of Cummings VS..
The State Of Missouri, and the reasoning
upon which that conclusion was reached
applies equally to similar action on the part
of Congress.
These views are further strengthened by
a consideration of the effect of the pardon
produced hy the petitioner and the nature
of the pardoning power of the President.