Opinion of Miller, J., the C. J., and Swayne and Davis, JJ., dissenting. had a right to prescribe as necessary to an attorney, then the President cannot, by pardon or otherwise, dispense with the law requiring such qualification. This is not only the plain rule as between the legislative and executive departments of the government, but it is the declaration of common sense. The man who, by counterfeiting, by theft, by murder, or by treason, is rendered unfit to exercise the functions of an attorney or counsellor-at-law, may be saved by the executive pardon from the penitentiary or the gallows, but is not thereby restored to the qualifications which are essential to admission to the bar. No doubt it will be found that very many persons among those who cannot take this oath, deserve to be relieved from the prohibition of the law; but this in no wise depends upon the act of the President in giving or refusing a pardon. It remains to the legislative power alone to prescribe under what circumstances this relief shall be extended. In regard to the case of Cummings v. The State of Missouri, allusions have been made in the course of argument to the sanctity of the ministerial office, and to the inviolability of religious freedom in this country. But no attempt has been made to show that the Constitution of the United States interposes any such protection between the State governments and their own citizens. Nor can anything of this kind be shown. The Federal Constitution contains but two provisions on this subject. One of these forbids Congress to make any law respecting the establishment of religion, or prohibiting the free exercise thereof. The other is, that no religious test shall ever be required as a qualification to any office or public trust under the United States. No restraint is placed by that instrument on the action of the States; but on the contrary, in the language of Story,* "the whole power over the subject of religion is left exclusively to the State governments, to be acted upon according to their own sense of justice and the State constitutions." *Commentaries on the Constitution, 1878. Opinion of Miller, J., the C. J., and Swayne and Davis, JJ., dissenting. If there ever was a case calling upon this court to exercise all the power on this subject which properly belongs to it, it was the case of the Rev. B. Permoli.* An ordinance of the first municipality of the city of New Orleans imposed a penalty on any priest who should officiate at any funeral, in any other church than the obituary chapel. Mr. Permoli, a Catholic priest, performed the funeral services of his church over the body of one of his parishioners, inclosed in a coffin, in the Roman Catholic Church of St. Augustine. For this he was fined, and relying upon the vague idea advanced here, that the Federal Constitution protected him in the exercise of his holy functions, he brought the case to this court. But hard as that case was, the court replied to him in the following language: "The Constitution (of the United States) makes no provision for protecting the citizens of the respective States in their religious liberties; this is left to the State constitutions and laws; nor is there any inhibition imposed by the Constitution of the United States in this respect on the States." Mr. Permoli's writ of error was, therefore, dismissed for want of jurisdiction. In that case an ordinance of a mere local corporation forbid a priest, loyal to his government, from performing what he believed to be the necessary rites of his church over the body of his departed friend. This court said it could give him no relief. In this case the constitution of the State of Missouri, the fundamental law of the people of that State, adopted by their popular vote, declares that no priest of any church shall exercise his ministerial functions, unless he will show, by his own oath, that he has borne a true allegiance to his government. This court now holds this constitutional provision void, on the ground that the Federal Constitution forbids it. I leave the two cases to speak for themselves. In the discussion of these cases I have said nothing, on the one hand, of the great evils inflicted on the country by * 3 Howard, 589. Statement of the case. the voluntary action of many of those persons affected by the laws under consideration; nor, on the other hand, of the hardships which they are now suffering, much more as a consequence of that action than of any laws which Congress can possibly frame. But I have endeavored to bring to the examination of the grave questions of constitutional law involved in this inquiry those principles alone which are calculated to assist in determining what the law is, rather than what, in my private judgment, it ought to be. BARROWS v. Kindred. Although when statute abolishing its fictitious forms places the action of ejectment on the same footing with other actions, as to the conclusiveness of the judgment, the court will give effect to the same; yet where a plaintiff in ejectment is defeated in one suit, where he claimed through a power of attorney rightly ruled out on the trial as void, he will not be held to be concluded in a subsequent action where he claims under a new deed made by the executors themselves. Having acquired a new and distinct title, he has the same right to assert it, without prejudice from the former suit, as a stranger would have had it passed to him. ERROR to the Circuit Court of the United States for the Southern District of Illinois; the case being thus: 66 The statute of Illinois regulating the action of ejectment abolishes all fictions. Its twenty-ninth section provides that every judgment in the action of ejectment rendered upon a verdict shall be conclusive as to the title established in such action, upon the party against whom the same is rendered, and against all persons claiming from, through, or under such party, by title accruing after the commencement of such action, subject to the exceptions hereinafter named," exceptions not material to be noticed. With this statute in force, the plaintiff in error brought an action of ejectment against the defendant in error in the court below, and upon the trial produced a chain of title, consisting of a patent Statement of the case. from the United States to Whitney, a deed from Whitney to Vose, the will of Vose, and a deed from his executors to the plaintiff. This deed was dated March 18th, 1861. The validity of these several links was not denied. They made the chain of title complete, and primâ facie entitled the plaintiff to recover the premises in controversy. The defendant, thereupon, gave in evidence the record of a judgment relating to the same premises-rendered in a former action of ejectment-wherein the plaintiff in error was the plaintiff, and James R. Gordon was defendant. The judgment was in favor of the latter. This suit was begun on the 12th June, 1858, and ended June 5th, 1859. The defendant also proved that he was in possession as the tenant of Gordon; that in the former action set forth in the record in question the plaintiff, Barrows, gave in evidence the same patent from the United States to Whitney, the same deed from Whitney to Vose, a power of attorney from the executors of Vose to S. A. Kingsley, authorizing him to sell and convey the premises, a deed from the executors by Kingsley as their attorney in fact, to Scroggs, and a deed from Scroggs to the plaintiff. This power of attorney from the executors, and the deed executed by Kingsley, were ruled out as void. The defendant proved, further, that the deed from the executors of Vose to the plaintiff was given upon the same consideration as the former deed by their attorneys in fact to Scroggs. The evidence being closed, the plaintiff asked the court to charge the jury, that the record and evidence relating to the former trial constituted no bar to his right to recover in this action. This the court refused to do, and thereupon charged that the record in connection with the evidence did constitute a bar. The jury found accordingly for the defendant. To the admission of each of the several parts of this evidence, to the refusal of the court to charge as asked, and to the charge given, the defendant excepted. The correctness of these instructions was the question now before this court. Argument for the conclusiveness. Mr. Grimshaw, for the plaintiff in error: In the first action, the plaintiff was beaten; because, after deducing title in fee from the government to Vose, he failed to trace title from Vose to himself; because-in point of fact, as we may here state-Vose's executors, who had power to sell, had delegated it without authority of law to an attorney, who had conveyed to the plaintiff. And in the second action plaintiff was again beaten, after he had acquired title directly from the executors, subsequent to the judgment in first suit, because he had been beaten in the first suit for want of title, when he commenced the first action. The present plaintiff was properly defeated in the first suit, because, although he traced title from the government to Vose, he failed to trace it to himself. In the second suit, by title acquired from Vose, through his executors, who had power to convey, he showed title in himself, acquired after the former judgment, and regularly derived from the government through Vose to himself.. He should not be defeated in the first suit, because when he brought that suit he had no title, and then defeated in this suit, because, after the first suit had terminated, he acquired a paramount legal title. The trial, as far as the plaintiff is concerned, relates to the state of title as it existed in plaintiff when he brought his suit. If he fails in his suit, defendant goes "without day;" but no title is established by plaintiff's defeat.* Mr. Browning, contra: The statute has given to the judgment in ejectment the same conclusive effect that other judgments have. Similar statutes exist in a number of the States, and many cases. decided under them may be referred to.† * Smith v. Sherwood, 4 Connecticut, 279; Easten v. Rucker, 1 J. J.. Marshall, 234. † Miles v. Caldwell, 2 Wallace, 44; Blanchard v. Brown, 8 Id. 245; Gibson v. Manly, 15 Illinois, 140; Frazer v. Weller, 6 McLean, 12; Beebe v. Elliot, 4 Barbour, 457; Marvin v. Dennison, 1 Blatchford, 160; Edwards 26 VOL. IV. |