Year: 1867

I


court, but officers whose duties relate almost
exclusively to proceedings Of Judicial ma.
ture, and hence their appoiatment NAV.
with propriety, be entrusted to the courts
and the latter, in performing this duty, NAV
very justly be considered as engaged in the
exercise Of their appropriate judicial func-
tiOns." In "a pGrte Secomb, a mGadamHs to
the Supreme Court Of the territory Of Min
nesots 10 vacate an order removing an
attorney and counselor was denied By this
court on the ground that the removal was q
judicial act


"We are not aware Of any case SKID
the court, "Where HidHddmHs was issued
10 an inferior tribunal commanding it to
reverse or annul its decision, where the
decision was in its nature a judicial act.
and within the scope Of its jurisdiction and
discretion" And in the same case the
court observed that 'it has been we'll set
tied by the rules and practice Of common
law courts that it rests exclusively with the
court to determine who is qualified 10 be-
come one of its officers as an attorney and
counselor, and for what causes he ought
to be removed" The attorney and counsel
or, being by the solemn Judicial act Of the
court clothed with his office, does not hold
il as a matter ofgrace and favor the right
which il confers on him to appear for
salt0rs, and to argue causes, is something
more than a mere indulgence, reYokable at
the pleasure Of the court or at the command
of the Legislature; il is a right Of which
he can only be deprived BY the Judgment
Of the court for moral or professional delin-
quency. The Legislature may undoubtedly
prescribe qualifications for the Office, with
which he must conform, as it may, where
it has exclusive Jurisdiction, prescribe quail
fications for the pursuit of any of the ordi-
nary avocations Of life, but to constitute a
qualification, the condition or thing re-
quired must be attainsble, in theory at
least by every one. That which from the
nature Ofthings, or the past condition OF
conduct of the party, cannot be attained by
every citizen, does not fall within the def
milton of the term To all those by whom
It is unattainable it is a disqualification
which operates "a a perpetual bar to the
office. The question in this case is not as
to the power Of Congress to prescribe quail
ficatlons, but whether that power has been
exercised as a means for the inaiction of
punishment against the prohibition of the
constitution. That this result cannot be
effected indirectly by a 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 by the petitioner and the nature
of the pardoning power of the President.
The constitution provides that the Presi-
dent Shall have power to grant Feprieves
and pardoDs for ofenses against the United
States, except in cases OF impeachment.
The power thus conferred is unlimited. with
the exception stated it extends 10 every
otfense known to the law, and may be exer-
cised at any time after its commission,
either before legal proceedings are taken,
or during their pendency, or after convic-
tion and judgment, This power of the
President is not subject to legislative con-
troll. Congress can neither limit the effect
Of his pardon nor exclude from its exercise
any class of offenders. The benign pre-
rogative of mercy reposed in him cannot be
tettered by any legislative restriction, Such
being the case, the inquiry arises "a to the
effect and operation of pardon. On this
point sll the authorities concur; pardon
reaches both the punishment prescribed for
the ofiense and the gull! of the offender, and
when the pardon is full it releases the pun
ishment and blots out of existence his guilt.
50 that in the eye Of the law the offender is
as innocent as if he had never committed
the ofense. If granted before conviction,
it prevents any of the penalties and disa-
bilties consequent upon conviction from
attaching. Ii granted after conviction, it
removes the penalties and disabilities,
and restores him to al his civil rights
Il makes him as it were a new man.
and gives him a new credit and CAPACITY.
There is only this limitation TO its
operation It does not restore Offices for
teited, or property or interests vested in
Others in consequence ofthe conviction and
judgement. The pardon produced BY the
petitioner Is a full pardon for all offenses by
him committed arising from participation.
direct or implied, in the rebellion, and is
subject to certain conditions which have
been complied with. The effect of this
pardon is to relieve the petitioner from all
penalties or disabilities attached to the Of
tense committed by his participation in the
rebellion. So far as that ofIense is con
oerned he is thus placed beyond the reach
Of punishment Of any kind but to exclude
him BY reason Of that offense from con-
tinuing in the enjoyment Of previously ac-
quired rights is to enforce q punishment
for that ofense notwithstanding tkepardon.
If such exclusion can be effected by the
execution Of an expurgatory oath covering
the ottense the pardon may be avoided,
and that accomplished indirectly which
cannot be reached by direct legislation. 1t
is not within the constitutional power of
Congress thus to inhict punishment beyond
the reach Of Executive clemency.


From the petitioner, therefore, tie oath
required by the act of January 24, 1865,
cannot be exaCted, even were that act not
subject to any other objection than the one
just stated It follows, from the views ex-
pressed, that the prayer of the petitioner
must be granted


The case Of R. II. Mari is similar in its
main features to that Of the petitioner, and
his must De granted; and the amendment
to the second rule cf the court, which re-
quires the oath prescribed by the act of
January "a, 1865, to be taken by attorneys
and counselors, Having been unadvisedly
adopted, must be rescinded, and it is so
ordered


Mr.. Justice Miller delivered dissenting
opinion for himself Chief Justice Chase
and Justices Swayne and Davis But ths
above is the law az pronounced by the
court