Stephen Johnson Field

“ It is, therefore, within the power of the President to limit his pardon, as in those cases in which it is individual and after conviction, to the mere release of the penalty-it is equally within his prerogative to extend it so as to include a whole class of offenders-to interpose this act of clemency before trial or conviction; and not merely to take away the penalty, but to forgive and obliterate the offence.
It is worthy of remark, that Congress stands committed as to the extent of the pardoning power, and the mode of exercising that power by proclamation. ”

“ Educated for the profession, his hopes centred in his success in it, his highest ambition being to share its honors, his support and that of his family depending upon success; can any man doubt that a law which deprives him of the right to pursue that profession, which defeats such hopes, which deprives him of the opportunity to gratify so noble an ambition, and which deprives him of the means of supporting himself and those dependent upon him, inflicts a severe, cruel, and heretofore in this country an unexampled punishment? ”

“ Has Congress exhausted all its power with reference to such a body of men as attorneys and counsellors in the courts of the United States, so that it can do nothing further and lay down no further rule for admission or exclusion, for oath, for bond, for security? ”

“ I do not ask for it any greater validity, but equality, so far as mere validity is concerned in the passage of the law or the passage of the rule. If I am right here, what will the bench say to a pardon of the President, who, when a lawyer is ejected from this court as unfit to practise here, grants a pardon for the very offence for which the court has ejected him? For instance, the lawyer may have committed forgery or perjury, things which make a man, when convicted of them, very unfit to practise as an attorney and counsellor at law. ”

“ May it please the court, every right-minded man-I should think every man who has within his bosom a heart capable of sympathy-who is not the slave to a narrow political feeling-a feeling that does not embrace, as it ought to do, a nation's happiness-must make it the subject of his daily thoughts and of his prayers to God, that the hour may come, and come soon, when all the States shall be again within the protecting shelter of the Union ”

“ We have now here before us a law that simply says, that a party who has committed a certain act shall not practise law in the courts of the United States. Is that making a new crime? Is that adding a new penalty in the sense of criminal penalties? Not at all. The act prescribing the oath does not say, that when a man comes here and admits that he has committed the offence, the court shall try and punish him for that offence. It says, that in order to practise he shall take an oath that he has never committed treason, that he has never joined the Rebellion. ”

“ For centuries, it has been a question in England, whether a pardon makes a man fit to sit in the jury-box, where the offence involves a forfeiture of his right to sit in the jury-box; and so whether a pardon restores a man to competency as a witness, when the crime of which he stands convicted excludes him from being a witness? ”

“ No law can deprive your honors of your places here during life or good behavior. No President can remove a judge from this bench; and thank God it is so. No law of Congress can remove a judge from this bench. I know there have been laws of Congress that have removed United States judges from lower benches than this, but their validity has been always questioned. But no Congress has ever dared to pass a law to remove a judge from this bench, or to abolish this bench, or change the structure of the Supreme Court of the United States. ”

“ With this understanding of the term, is not the act of 1865 an ex post facto law? Does it not punish Mr. Garland for an act in a manner in which he was not punishable when it was committed? Does it not punish him in fact? ”

“ Our statutes, indeed, are full of provisions showing that, in the judgment of Congress, similar consequences are punishments to be inflicted for crime. Disfranchisement of the privilege of holding offices of honor, trust, or profit, is imposed as a punishment upon those who are convicted of bribery, forgery, and many other offences. And how crushing is such punishment! To be excluded from the public service makes the man virtually an exile in his native land; an alien in his own country ”

“ Being a creature of law, no man can, like a parricide, stab that law, and claim at the same time all its privileges and all its honors. He would destroy the very government for which he asserts a right to act. ”

“ But if under the act of 1789 the court cannot make the rule, we have the act of Congress of 24th January, 1865. Cannot the legislature prescribe the qualifications which the counsellor shall have; the length of time he shall have been at the bar; the number of books, or the very books, that he shall have read and understood; that he shall not practise in this court at all, unless he shall have practised in the Federal courts in the several States; that he may practise in this court though he had never appeared before the Supreme Court of a State? Where is the limit? ”

“ The statute is directed against parties who have offended in any of the particulars embraced by these clauses. And its object is to exclude them from the profession of the law, or at least from its practice in the courts of the United States. As the oath prescribed cannot be taken by these parties, the act, as against them, operates as a legislative decree of perpetual exclusion. And 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 punishment for such conduct. ”

“ It would be not only in conflict with the Constitution, but inconsistent with the principles of a free government, that there should exist a power to deny counsel. In a free country, courts without counsel could not for a moment be tolerated. The history of every such government demonstrates that the safety of the citizen greatly depends upon the existence of such a class of men. ”

“ Congress, it is certain, cannot interfere with your proper judicial functions. Wherever anything is commanded of you by Congress that interferes with the upright and impartial and unfettered judicial authority that you have, such a law is void, and invades your department, just as distinct and unassailable as the power of Congress itself or the executive power itself ”

“ The Constitution is silent upon it. The word 'attorney' is not mentioned, and the word 'counsel' is only mentioned in it as the right of a person accused of crime. It is an act of Congress that creates us and gives us the right to appear here as attorneys and counsellors at law under certain limitations. Congress has imposed very few upon us. Congress very wisely have given to the court the power to receive or to exclude, and to lay down the terms upon which a counsellor shall be admitted. ”

“ If that, therefore, can be taken away or impaired by legislation, either or all of the other rights can be so taken away or impaired. It is true that courts, by the common law, possess authority to adopt rules for the admission of counsel; but this is to enable them, for their own advantage and the benefit and protection of suitors, to obtain, not to exclude, lawyers of competent legal learning and of fair character. They have no right to use the power so as to exclude them. ”

“ An act of Congress passed to-day, requiring them to take an oath that they were not above forty years of age, and providing, as the act in question does in relation to attorneys, that, 'after the 4th March next, no justice of this court should be admitted to his seat, unless he should take such oath, even if he were previously a justice of said court,' would be a palpable violation of the Constitution, because it would amount to a disqualification to any man above forty years of age, and be equivalent to providing that no justice of this court should remain in office beyond that age ”

“ In same case, in Supreme Court, where the opinion was delivered by Spencer, C. J., it is said:
'The disfranchisement of a citizen is not an unusual punishment; it was the consequence of treason, and of infamous crimes, and it was altogether discretionary in the legislature to extend that punishment to other offences.'Indeed, the very act we are considering provides this punishment for those who shall be convicted of perjury for taking the test oath falsely.
And more than all, the Constitution of the United States [14] itself is to the same effect. ”

“ 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 ”

“ The sixth amendment of the Constitution, before quoted, secures to the accused, in a criminal case, 'the assistance of counsel for his defense.' This security is, therefore, not dependent upon, or subject to, the power of Congress. They have no more authority to deny an accused the assistance of counsel, than they have to deny him a jury trial ”

“ The effect of the pardon, therefore, is to make it impossible for any power on earth to inflict, constitutionally, any punishment whatever upon the petitioner for the crime of treason specified in the pardon.
III. The act applied to the petitioner, in substance and effect, visits upon him a punishment for his pardoned crime. It will be conceded that the effect of this act is to exclude the petitioner from this and from all civil office. That a permanent disqualification for office is a grievous punishment need not be argued in America. ”

“ It is as to his past life, as to his past conduct, and as to his then sufficiency because of his past life and past conduct. His 'private and professional character shall appear to be fair,' said the rule. Moreover, we submit that every man stands here with a continuing condition of that sort upon him. The condition attaches every hour in which any man stands before the courts. It is not simply that he is, at the time he takes it, a man whose private and professional character appears fair. ”

“ Any law, therefore, which, in terms or in effect, makes him 'a witness against himself' is within the clause. That a law directly compelling him to testify would be within it, will be admitted; and it is a rule of construction especially applicable to a constitutional provision intended for the protection of the citizen, that what cannot be done directly, cannot be done indirectly. Where the protection is intended to be complete, it cannot be defeated by any evasion. ”

“ In the matter of a person named Clemency, [22] the Court of Cassation say:
'If the effect of letters of pardon is limited to the remission of the whole or a part of the penalties pronounced against one or more individuals; if they leave the offence still subsisting, as well as the culpability of the pardoned, and even declare the justice of the condemnation, it is otherwise with respect to a full and complete amnesty, which carries with it the extinction of the offences of which it is the object ”

“ If we turn our attention to France, particularly, so long and so often the sport of political storms and revolutions, we shall find in her jurisprudence abundant light to guide us in our inquiry as to the meaning and effect of the amnesty. ”

“ The government does not give the right to life, nor the right to locomotion, though it protects us all in the exercise of both. We sometimes call the privilege to practise law a right, but this is a mere manner of speaking ”

“ The design, therefore, of this restriction was to prohibit legislation punishing a man, either in his person or estate, for an act for which there was no punishment provided when the act was done, or from imposing an additional punishment to that which was then imposed, or to supply a deficiency of legal proof by admitting testimony less than that before required, or testimony which the courts were before prohibited from admitting. ”

“ The Constitution provides, [2] that 'no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.' Now, an act of Congress, or of a State, declaring that before any heir should enter into his ancestral estates he should take an oath that his ancestor had not been attainted of treason, would violate this provision ”

“ Wright [27] bears strongly in our favor. There the constitution of California prescribed an oath, to be taken by 'members of the legislature and all officers, executive and judicial.' It then declared that 'no other oath, declaration, or test, shall be required as a qualification for any office or public trust.' On the 25th April, 1863, the legislature passed an act, declaring that a defendant in any suit pending in a court of record might object to the loyalty of the plaintiff ”

“ Suppose a man is indicted and sent to the penitentiary for life, and that the consequence of the confinement is declared by law to be that he is civiliter mortuus-dead in the estimation of the law. During his confinement his wife is released from the bonds of matrimony. ”

“ Could any gentleman, having committed yesterday an offence for which, if the court knew when he was admitted that he had been guilty of, he would not have been admtted-could he stand here to-day and contend that an exclusion on account of that offence would be retroactive? The qualification does not infer as a necessity that the counsellor admitted will both then and for all future time be qualified. He may disqualify himself. Being once qualified, he must live up to that rule which qualified him at the first. ”

“ He has got your judgment, and the legislature undertakes to say to him, 'You shall no longer enjoy that right, unless you will swear that you have not done the things stated in the oath which we require you to take;' and he is gravely told, 'You are not obliged to take it.' Certainly, he is not obliged to take it. No man is obliged to follow his occupation ”