740 



TEST OATHS. 



Confederate States, and, by act of the Congress of 

 that Confederacy, she was received as one of its 

 members. The petitioner followed the State and was 

 one of her representatives, first in the lower House, 

 and afterward in the Senate of the Congress of that 

 Confederacy, and was a member of the Senate at the 

 time of the surrender of the Confederate forces to the 

 armies of the United States. 



In July, 1865, he received from the President of 

 the United States a full pardon for all offences com- 

 mitted by him by participation, direct or implied, in 

 the rebellion. He now produces this pardon, and 

 asks permission to continue to practice as an attor- 

 ney and counsellor of the court, without taking the 

 oath required by the act of January 24, 1865, and the 

 rule of this court, which he is unable to take by 

 reason of the offices he held under the Confederate 

 Government. 



He rests his application principally upon two 

 grounds: first, that the act of January 24, 1865, so 

 far as it affects his status in the court, is unconstitu- 

 tional and void ; second, that if the act be constitu- 

 tional, he is released from compliance with its pro- 

 visions by the pardon of the President. The oath 

 prescribed by the act- is as follows: 1. That the de- 

 ponent has never voluntarily borne arms against the 

 United States since he has been a citizen thereof. 

 2. That he has not voluntarily given aid, counte- 

 nance, counsel, or encouragement to persons engaged 

 in armed hostility thereto. 3. That he has never 

 sought, accepted, or attempted to exercise the func- 

 tions of any office whatsoever under any authority 

 or pretended authority in hostility to the United 

 States. 4. That he has not yelded a voluntary sup- 

 port to any pretended government, authority, power, 

 or constitution within the United States hostile or 

 inimical thereto. 5. That he will support and de- 

 fend the Constitution of the United States against 

 all enemies, foreign and domestic, and will bear true 

 faith and allegiance to the same. 



In the case of Cummingg, the court decided 

 that the Missouri test oath was in contravention 

 of the provision of the Constitution providing 

 that " no State shall pass any bill of attainder " 

 or " ex-post -facto law " and that "the disabil- 

 ities created by the constitution of Missouri 

 must be regarded as penalties. They consti- 

 tute punishment." 



In deciding the case of Garland, Mr. Justice 

 Field says : 



An exclusion from any of the professions or any 

 of the ordinary avocations of life for past conduct, 

 can be regarded in no other light than as a punish- 

 ment for such conduct. The exaction of the oath is 

 the mode provided for ascertaining the parties upon 

 whom the act is intended to operate, and, instead of 

 lessening, increases its objectionable character. All 

 enactments of this kind partake of the nature of bills 

 of pains and penalties, and are subject to the consti- 

 tutional inhibition against the passage of bills of at- 

 tainder, under which general designation they are 

 included. In the exclusion which the statute ad- 

 judges, it imposes a punishment for some of the acts 

 specified, which were not punishable, or may not 

 have been punishable at the time they were commit- 

 ted ; and for all the acts it adds a new punishment 

 to that then prescribed, and it is thus brought within 

 the fourth inhibition of the Constitution against the 

 passage of an ex-post-facto law. 



The profession of an attorney and counsellor is not 

 like an office created, by an act of Congress, which 

 depends for its continuance, its powers, and its emol- 

 uments on the will of its creator, and the possession 

 of which may be burdened with any conditions not 

 prohibited by the constitution. Attorneys and coun- 

 sellors are not officers of the United States. They 

 tare not elected or appointed in the manner prescribed 



by the Constitution for the election or appointment 

 of such officers. They are officers of the court, ad- 

 mitted as such by its order upon evidence of their 

 possessing sufficient legal learning and fair character. 

 The order of admission is the judgment of the court 

 that the parties possess the requisite qualification? 

 as attorneys and counsellors, and are entitled to ap- 

 pear as such and conduct causes therein. 



They hold their office during good behavior, and 

 can only be deprived of it for misconduct, ascertained 

 and declared by the judgment of the court, after op- 

 portunity to be heard has been afforded. Their ad- 

 mission and their exclusion are not the exercise of a 

 mere ministerial power. The court is not in this 

 respect the register of the edicts of any other body. 

 It is the exercise of judicial power, and has been so 

 held in numerous cases. The attorney and coun- 

 sellor, being by the solemn judicial act of the court 

 clothed with his office, does not hold it as a matter 

 of giace and favor; the right which it confers upon 

 him to appear for suitors, and to argue causes, is 

 something more than a mere indulgence, revokablo 

 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 

 professional delinquency. The Legislature may un- 

 doubtedly prescribe qualifications lor the office, with 

 which he must conform, as it may, where it has ex- 

 clusive jurisdiction, prescribe qualifications for the 

 pursuit of any of the ordinary avocations of life ; but 

 to constitute a qualification, the condition or thing 

 prescribed must be attainable, 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 it is 

 unattainable, it is a disqualification which operates 

 as a perpetual bar to the office. The question in this 

 case is not as to the power of Congress to prescribe 

 qualifications, but whether that power has been ex- 

 ercised as a means for the infliction 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 Mis- 

 souri, 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 consid- 

 eration of the effect of the pardon produced by tho 

 petitioner and the nature of the pardoning power of 

 the President. The Constitution provides that the 

 President "shall have power to grant reprieves and 

 pardons for offences against the United States, except 

 in cases of impeachment." The power thus conferred 

 is unlimited, with the exception stated ; it extends 

 to every offence 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 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 prerogative of mercy reposed in him 

 cannot be fettered by any legislative restriction. 

 Such being the case, the inquiry arises as to the effect 

 and operation of a pardon. On this point all the 

 authorities concur : a pardon reaches both the pun- 

 ishment 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 his guilt, 

 so that in the eye of the law the offender is as inno- 

 cent as if he had never committed the ofi'euce. If 

 granted before conviction, it prevents any of the 

 penalties and disabilities consequent upon conviction 

 from attaching. If granted after conviction, it re- 

 moves the penalties and disabilities, and restores him 

 to all his civil rights. It makes him as i f ^ore a new 

 man, and gives him a new credit and capacity. There 

 is only this limitation to its operation : it does not 



