The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1867-01-16

scribed, and IL Is thus brought with'n the
four,h inhibition Of the Consultation against
the passage of an err post tacto law.
In the case of Cummings IS. The state
of Missouri, Just decided, we had occasion a;a1
to consider at length the meaning OF Dl,a
of a,tainder and an err post fdcto law IN h CIR
clause of the Constitution forbiddIns ono.-
passage by the States; and it - said A
sarv 10 reneat here what we the,c saiu. a
SAY " p,.:s = contained In the Consti-
my p'on, ',ns, ano.,ments of this kind by
I C IL the argument presented in
Nons'o's, s,,nst certain clauses of the
r Iaa' SaJ of Missouri is equally apph-
0 Ills ~ tho act of Congress under conside-
ration in this case.
The profession Of an attorney and coun-
| sclior is not like an Office created by an
act of Congress, which depends for its con-
FINANCE, its powers, and its emoluments
on the will of its creator, and the posses
sion Of which may be burdened with any
conditions not prohibited by the Constitu-
ton. 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 cleo
ton or appointment Of such officers. They
are officers of the court, admitted as such
by its order upon evidence of their possess
ing sufficient legal learning and fair char
acter. Since the statute of fourth Henry
Nv. it has been the practice in England,
aud it has always been the practice in this
country, to obtain this evidence by an ex-
animation of the parties. In this court
the fact of the admission Of such officers
in the highest court of the States to which
they respectively belong for three years
preceding their application is regarded as
sufficient evidence of the possession OF the
requisite legal learning, and the statement
of counsel moving their admission sufil-
cient evidence that their private and pro-
fessional charas<er is fair. The order OF
admission is the Judgment of the court that
the parties possess the requisite quailfica-
tions as attorneys and counsellors, and are
entitled to appear as such and conduct
causes therein. From its entry the par
ties become officers of the court, and are
responsible to it for professional miscon-
duct.
They hold their office during good beha-
vior, and can only be deprived of it for
| misconduct, ascertained and declared by
the Judgment of the court after opportu-
nity to be heard has been afforded. Their
admission and their exclusion are not the
exercise of mere ministerial power. The
court is not in this respect the register OF
the edicts of any other body. 1t has the
exercise of judicial power, and has been
so held in numerous eases. 1t was SO held
by the Court Of Appeals of New York in
the matter of the application of Cooper for
admission. Attorneys and counsellors,"
said that court, care not only officers OF
the court, but officers whose duties relate
almost exclusively to proceedings of ju-
dicial nature, and hence their appoint
ment may, with propriety, be entrusted to
the courts; and the latter, in performing
this duty, may very justly be considered
as engaged in the exercise OF their appro-
pirate judicial functions" In er pdrte
| Second, a mandamus to the Supreme
Court of the territory of Minnesota to va
cate an order removing an attorney and
counsellor was denied by this court on the
! ground that the removal was judicial act.
ave are not aware of any case," said
the court, "where q mdnddmuS was issued
to an inferior tribunal commanding it to
reverse or annul its decision, where the
decision was in its nature judicial act,
and within the scope of its jurisdiction and
discretion" And in the same case the
court observed that "it has been well
settled by the rules and practice of COM
mon-law courts that it rests exclusively
with the court to determine who is quail
fled to become one of its officers as all at
torney and counsellor, and for what causes
he ought to be removed" The attorney
and counsellor, being by the solemn judi
| cial act of the court clothed with his office,
does not hold it as a matter of grace and
favor the right which it conters upon him
| to appear for suitors and to argue causes,
| is something more than mere indulgence
revokable at the pleasure of the court or
at the command of the Legislature it is a
right of which he can only be deprived by
the Judgment of the court for moral or pro-
fessiona delinquency. The Legislature
may undoubtedly prescribe qualifications
for the office, with which he must conform,
as it may, where il has exclusive jurisdic-
ton, prescribe qualifications for the pur-
suit of any of the ordinary avocations OF
| life but TO constitute qualification, the
condition or thing prescribed must be at
tainable, in theory at least, by every one.
| That which, from the nature of things, or
the past condition or conduct of the party,
cannot be attained by every citizen, does
not fall within the definition of the term.
To all those by whom il is unattainable 1t
is disqualification which operates as q
perpetual bar to the Office. The question
in this case is not as to the power OF Con-
cress to prescribe qualifications, but whe-
Their that power has been exercised as a
means for the infiiction of punishment
against the prohibition of the Constitution.
That this result cannot be effected indi-
rectly by State under the form of creating
qualifications, we have held in the case of
Cummings Us. The State of Missouri, and
the reasoning upon which that conclusion
was reached applies equally to similar &C
tion on the part OF Congress.
These views are further strengthened by
a consideration of the effect of the par
don produced by the petitioner and the
nature of the pardoning power of the Pre-
sident. The Constitution provides that
the President "shall have power to grant
reprieves and pardons for offences against
the United States, except in cases Of i'm
| is unlimited, with the exception stated 1t
extends to every offence known to the law,
and may be exercised at any time after its
commission, either before legal proceed
ings are taken, OF. during their tendency,
or after conviction and judgment. This
power of the President is not subject to
legislative control. Congress can neither
limit the effect of his pardon nor exclude
from its exercise any class Of offenders.
The benign perogative of mercy rcposed
in him cannot be fettered by any legisla-
tive restriction. Such being the case, the
inquiry arises as to the effect and opera
tion OF pardon. On this point oil the
authorities concur; pardon reaches both