Chase, C. J.
—This is an appeal from an order of discharge from imprisonment made by the district judge, acting as a judge of the Circuit Court, upon a writ of habeas corpus, allowed upon the petition of Caesar Griffin.
The petition alleged unlawful restraint of the petitioner, in violation of the Constitution of the United States, by the sheriff of Boekbridge county, Virginia, in virtue of a pretended judgment rendered in the Circuit Court of that county by Hugh W. Sheffey, present and presiding therein as judge, though disabled from holding any office whatever by the fourteenth amendment of the Constitution of the "United States. • .
Upon this petition a writ of habeas corpus was allowed and served, and the body of the petitioner, with a return showing the cause of detention, was produced by the sheriff in conformity with its command.
The general facts of the case, as shown to the district judge, may be briefly stated as follows :
The Circuit Court of Boekbridge county is a court of record of the State of Virginia, having civil and criminal jurisdiction. In this court the petitioner, Csesar Griffin, indicted in the county court for shooting with intent to kill, was regularly tried, in pursuance of his own election, and, having been convicted, was sentenced, according to the finding of the jury, to imprisonment for two years, and was in the custody of the sheriff, to be conveyed to the penitentiary, in pursuance of this sentence.
Griffin is a colored man; but there was no allegation [627]*627that the trial was not fairly conducted, or that any discrimination was made against him, either in indictment, trial, or sentence, on account of color.
It was not claimed that the grand jury, hy which he was indicted, or the petit jury, hy which he was tried, was not, in all respects, lawful and competent; nor was it alleged that Hugh "W. Sheffey, the judge who presided at the trial and pronounced the sentence, did not conduct the trial with fairness and uprightness.
One of the counsel for the petitioner, indeed, upon the hearing in this court, pronounced an eulogium upon his character, "both as a man and as a magistrate, to deserve which might well be the honorable aspiration of any judge. _
_ But it was alleged, and was admitted, that Judge Sheffey, in December, 1849, as a member of the Virginia House of Delegates, took an oath to support the Constitution of the United States, and also that he was a member of the Legislature of Virginia during the late rebellion in 1862, and as such voted for measures to sustain the co-called Confederate States in their war against the United States, and it was claimed in behalf of the petitioner that he thereby became, and was at the time of the trial of the petitioner, disqualified to hold any office, civil or military, under the United States, or under any State; and it was specially insisted that the petitioner was. entitled to his discharge upon the ground of the incapacity of Sheffey,' under the fourteenth amendment, to act as judge and pass sentence of imprisonment.
Upon this showing and argument it was held by the district judge, that the sentence of Caesar Griffin was absolutely null, that his imprisonment was in violation of the Constitution of the United States, and an order for his discharge from custody was made accordingly.
The general question to he determined on the appeal from this court is, whether or not the sentence of the Cir[628]*628cuit Court of Rockbridge county must be regarded as a nullity, because of the disability to hold any office under the State of Virginia imposed by the fourteenth amendment on the person who in fact presided as judge in that court.
It may be properly borne in mind, that the disqualification did not exist at the time Sheffey becamé judge.
"When the functionaries of the State government existing in Virginia at the commencement of the late civil war took part, together with a majority of the citizens of the State, in rebellion against the Government of the United States, they ceased to constitute a State government for the State of Virginia, which could be recognized as such by the Rational Government. Their example of hostility to the Union, however, was not followed throughout the State. In many counties the local authorities and majorities of the people adhered to the Rational Government; and representatives from these counties soon after assembled in convention at Wheeling, and organized a government for that State. This government was recognized as the lawful government of Virginia by the executive and legislative departments of the Rational Government, and this recognition was conclusive upon the judicial department.
The government of the State thus recognized was, in contemplation of law, the government of the whole State .of Virginia, though excluded, as the Government of the United States was itself excluded, from the greater portion of the territory of the State. It was the legislature of the recognized State which gave the consent of Virginia to the formation of the State of West Virginia. To the formation of that State, the consent of its own legislature, and of the Legislature of the State of Virginia, and of Congress, was indispensable. If either had been wanting, no State within the limits of the old could have been constitutionally formed; and it is clear that, if the government instituted at Wheeling was not the government of the whole [629]*629State of Virginia, no new State has ever been constitutionally formed within her ancient boundaries.
It cannot admit of question, then, that the government which consented to the formation of the State of West Virginia remained, in all national relations, the government of Vii’ginia, although that event reduced to very narrow limits the territory acknowledging its jurisdiction, and not controlled by insurgent force. Indeed, it is well known historically, that the State and government of Virginia, thus organized, was recognized by the National Government; Senators and representatives from the State occupied seats in Congress; and when the'insurgent force, which held possession of the principal part of the territory, was overcome, and the government recognized by the United States was transferred from Alexandria to Richmond, it became in fact, what it was before in law, the government of the whole State. As such, it was entitled, under the Constitution, to the same recognition and respect, in national relations, as the government of any other State.
It was under this government that Hugh W. Sheffey was, on the 22d February, 1866, duly appointed judge of the Circuit Court of Rockbridge county, and he -was in the regular exercise of his functions as such when Griffin was tried and sentenced.
More than two years had elapsed after the date of his appointment when the ratification of the fourteenth amendment by the requisite number of States was officially promulgated by the Secretary of State on the 28th of July, 1868.
That amendment, in its third section, ordains “that no person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive [630]*630or judicial officer, of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
And it is admitted that the office held by Justice Sheffey at the time of the trial of Griffin was an office under the State of Virginia, an,d that he was one of the persons to whom the prohibition to hold office pronounced by the amendment applied.
The question to be considered, therefore, is, whether, upon a sound construction of the amendment, it must be regarded as operating directly, without any intermediate proceeding whatever, upon all persons within the category of prohibition, and as depriving them at once and absolutely of all official authority and power.
One of the counsel for the petitioner suggested that the amendment must be construed with reference to the act of 1867, which extends the writ of habeas corpus to a large class of cases in which the previous legislation did not allow it to be issued, and it is proper to say a few words of this suggestion here.
The judiciary act of 1789 expressly denied the benefit of the writ of habeas corpus to prisoners not confined under or by color of the authority of the United States. Under that act, no person confined under State authority could have the benefit of the writ. Afterwards, in 1833 and 1842, the writ was extended to certain cases, specially described, of imprisonment under State process; and, in 1867, by the act to which the counsel referred, the writ was still further extended “ to all cases where any person may be restrained of liberty in violation of the Constitution, or any treaty or law of the United States.
And the learned counsel was doubtless correct in maintaining, that without the act of 1867 there would be no remedy for habeas corpus in the case of the petitioner, nor, indeed, in any case of imprisonment in violation of the [631]*631Constitution of the United. States, except in the possible case of an imprisonment, not only within the provisions of this act, but also within-the provisions of some one of the previous acts of 1789, 1833, and 1842.
But if, in saying that the amendment must be construed with reference to the act, the counsel meant to affirm that the existence of the act throws any light whatever upon the construction of the amendment, the court is unable to perceive the force of his observation.
It is not pretended that imprisonment for shooting with intent to kill is unconstitutional, and it will hardly be affirmed that the act of 1867 throws any light whatever upon the question whether such imprisonment in any particular case is unconstitutional. The case of unconstitutional imprisonment must be established by appropriate evidence. It cannot be inferred from the existence of a remedy for such a case. And surely no construction otherwise unwarranted can be put upon - the amendment more than upon any other provision of the Constitution, to make a case of violation out of acts which otherwise must be regarded as not only constitutional, but right.
We come, then, to the question of construction. What was the intention of the people of the United States in adopting the fourteenth amendment? What is the true scope and purpose of the prohibition to hold office contained in the third section ?
The proposition maintained in behalf of the petitioner is, that this prohibition instantly, on the day of its promulgation, vacated all offices held by persons within the category of prohibition, and made all official acts performed by them since that day null and void.
One of the counsel sought to vindicate this construction of the amendment, upon the ground that the definitions of the verb “to hold,” given by Webster, in his Dictionary, are, “to stop; to confine; to restrain from escape; to keep fast; to retain;” of which definitions the author says that [632]*632“to hold rarely or never signifies the first act of seizing or falling on, hut the act of retaining a thing when seized on or confined.”
The other counsel seemed to be embarrassed by the difficulties of this literal construction, and sought to establish a distinction between sentences in criminal cases .and judgments and decrees in civil cases. He admitted, indeed, that the latter might be valid when made by a court held by a judge within the prohibitive category of the amendment, but insisted that the sentences of the same court in criminal cases must be treated as nullities. The ground of the distinction, if we correctly apprehend the argument, was found in the circumstance that the act of 1867 provided a summary redress in the latter class of cases, while in the former no summary remedy could be had, and great inconvenience would arise from regarding decrees and judgments as utterly null and without effect.
But this ground of distinction seems to the court unsubstantial. It rests upon the fallacy already commented on. The amendment makes no such distinction as is supposed. It does not deal with cases, but with persons. The prohibition is general. Ho person in the prohibitive category can hold office. It applies to all persons and to all offices, under the United States or any State. If, upon a true construction, it operates as a removal of a judge, and avoids all sentences in criminal cases pronounced by him after the promulgation of the amendment, it must be held to have the effect of removing all judges and all officers, and annulling all their official acts after that date.
The literal construction, therefore, is the only one upon which the order of the learned district judge, discharging the prisoner, can be sustained, and was, indeed, as appears from his certificate, the construction upon which the order was made. He says expressly, “the right of the petitioner to his discharge appeared to me to rest solely on the inca[633]*633pacity of the said Hugh W. Sheffey to act (that is, the judge) and so to sentence the prisoner under the fourteenth amendment.”
Was this a correct construction ?
In the examination of questions of this sort, great attention is properly paid to the argument from inconvenience. This argument, it is true, cannot prevail over plain words or clear reason. But, on the other hand, a construction which must necessarily occasion great public and private mischief must never be preferred to a construction which will occasion neither, or neither in so great degree, unless the terms of the instrument absolutely require such preference.
Let it, then, be considered what consequences would spring from the literal interpretation contended for in behalf of the petitioner.
The amendment applies to all the States of the Union, to all offices under the United States or under any State, and to all persons in the category of prohibition, and for all time, present and future. The offenses for which exclusion from office is denounced are not merely engaging in insurrection or rebellion against the United States, but the giving of aid or comfort to their enemies. They are offenses not only of civil, but of foreign war.
How, let it be supposed that some of the persons described in the 3d section, during the war with Mexico, gave aid and comfort to the enemies of their country, and nevertheless held some office on the 28th of July, 1868, or subsequently.
Is it a reasonable construction of the amendment, which will make it annul every official act of such an officer ?
But let another view be taken. It is well known that many persons engaged in the late rebellion have emigrated to States which adhered to the Rational Government, and it is not to be doubted that not a few among them, as members of Congress, or officers of the United States, or [634]*634as members of State legislatures, or as executive or judicial officers of a State, had before the war taken an oath to support the Constitution of the United States. In their new homes, capacity, integrity, fitness, and acceptability may very possibly have been more looked to than antecedents. Probably some of these persons have been elected to office in the States which have received them. It is not unlikely that some of them held-office on the 28th of July, 1868. Must all their official acts be held to be null under the inexorable exigencies of the amendment?
But the principal intent of the amendment was, doubtless, to provide for the exclusion from office, in the lately insurgent States, of all persons within the prohibitive description.
How, it is well known that, before the amendment was proposed by Congress, governments acknowledging the constitutional supremacy of the Hational Government had been organized in all these States. In some, these governments had been organized through the direct action of the people, encouraged and supported by the President, as in Tennessee, Louisiana, and Arkansas, and in some through similar action in pursuance of executive proclamation, as in Horth Carolina, Alabama, and several other States. In Virginia, such a State government had been organized, as has been already stated, soon after the commencement of the war, and this government had been fully recognized by Congress as well as by the President.
This government, indeed, and all the others, except that of Tennessee, was declared by Congress to be provisional only.
But in all these States all offices had been filled before the ratification of the amendment by citizens who, at the time of the ratification, were actively engaged in the performance of their several duties. Very many, if not a majority of these officers, had, in one or another of the capacities described in the third section, taken an oath to [635]*635support the Constitution, and had afterwards engaged in the late rebellion, and most, if not all of them, continued in the discharge of their functions after the promulgation of the amendment, not supposing that by its operation their offices could be vacated without some action of Congress.
If the construction now contended for be given to the prohibitive section, the effect must be to annul all official acts performed by these officers. Ro sentence, no judgment, no decree, no acknowledgment of a deed, no record of a deed, no sheriff's or commissioner's sale; in short, no official act is of the least validity. It is impossible to measure the evils which such a construction would add to the calamities which have already fallen upon the people of these States.
The argument from inconveniences, great as • these, against the construction contended for, is certainly one of no light weight.
But there is another principle which, in determining the construction of this amendment, is entitled to equal consideration with that which has just been stated and illustrated. It may be stated thus: Of two constructions, either of which is warranted by the words of an amendment of a public act, that is to be preferred which best harmonizes the amendment with the general tenor and spirit of the act amended. ‘
This principle forbids a construction of the amendment, not clearly required by its terms, which will bring it into conflict or disaccord with the other provisions of the Constitution.
And here it becomes proper to examine somewhat more particularly the character of'the third section of the amendment.
The amendment itself was the" first of the series of measures proposed or adopted by Congress with a view to the reorganization of State governments acknowledging the [636]*636constitutional supremacy of the Rational Government in those States which had attempted to break up their constitutional relations with the Union and to establish an independent confederacy.
All citizens who had, during its earlier stages, engaged in or aided the war against the United States which resulted inevitably from this attempt, had incurred the penalties of treason under the statute of 1790.
But, by the act of July 17, 1862, while the civil war was flagrant, the death penalty for treason committed by engaging in rebellion was practically abolished. Afterwards, in December, 1863, full amnesty, on conditions which now certainly seem to be moderate, was offered by President Lincoln, in accordance with the same act of Congress; and, after organized resistance to the United States had ceased, amnesty was again, offered, in accordance with the same act, by President Johnson, in May, 1865. In both these offers of amnesty extensive exceptions were made.
In June, 1866, little more than a year later, the fourteenth amendment was proposed, and was ratified in July, 1868. The only punitive section contained in it is the third, now under consideration. It is not improbable that one of the objects of this section was to provide for the security of the nation and of individuals by the exclusion of a class of citizens from office; but it can hardly be doubted that its main purpose was to inflict upon the leading and most influential characters who had been engaged in the rebellion exclusion from office as a punishment for. the offense.
It is true, that, in the judgment of some enlightened jurists, its legal effect was to remit all other punishment, for it led to the general amnesty of December 25, of the same year, and to the order discontinuing all prosecutions for crime and proceedings for confiscation originating in the rebellion. Such certainly was its practical effect. But this very effect shows distinctly its punitive character.
[637]*637■ How, it is undoubted that those provisions of the Constitution, which deny to the legislature power to deprive any person of life, liberty, or property, without due process of law, or to pass a bill of attainder, or an ex post facto law, are inconsistent in their spirit and general purpose with any provision which at once, without trial, deprives a whole class of persons of offices held by them for cause, however grave. It is true that no limit can be imposed on the people when exercising their sovereign power in amending their own constitution of government. But it is a necessary presumption, that the people, in the exercise of that power, seek to conform and improve, rather than to weaken and impair, the general spirit of the Constitution.
If there were no other grounds than these for seeking another interpretation of the amendment than that which we are asked to put upon it, we should feel ourselves bound to hold them sufficient.
But there is another and sufficient ground, and it is this, that the construction demanded in behalf of the petitioner is nugatory except for mischief.
In the language of one of the counsel, “the object had in view by us is not to unseat Hugh W. Sheffey, and no judgment of the court can effect that.”
How, the object of the amendment is to unseat every officer, whether judicial or executive, who holds civil or military office in contravention of the terms of the amendment. Surely, a construction which fails to accomplish the main purpose of the amendment, and yet necessarily works the mischiefs and inconveniences which have been described, and is repugnant to the first principles of justice and right imbodied in other provisions of the Constitution, is not to be favored, if any other reasonable construction can be found.
Is there, then, any other reasonable construction? In the judgment of the court there is another, not only rea[638]*638sonable, but very clearly warranted by the terms of the amendment, and recognized by the legislation of Congress.
The object of the amendment is to exclude from certain offices a certain class of persons. Row, it is obviously impossible to do this by a simple declaration, whether in the Constitution or in an act of Congress, that all persons included within a particular description shall not hold office. For, in the very nature of things, it must be ascertained what particular individuals are embraced by the definition before any sentence of exclusion can be made to operate. To accomplish this ascertainment and insure effective results, proceedings, evidence, decisions, and enforcement of decisions, more or less formal, are indispensable; and these can only be provided for by Congress.
Row, the necessity of this is recognized by the amendment itself, in its fifth and final section, which declares that “ Congress shall have power to enforce by appropriate legislation the provisions of this article.”
There are, indeed, other sections than the third, to the enforcement of which legislation is necessary; but there is no one which more clearly requires legislation in order to give effect to it. The fifth section qualifies the third to the same extent as it would if the whole amendment consisted of these two sections.
And the final clause of the third section itself is signifi- ■ cant: it gives to Congress absolute control of the whole operation of the amendment. These are its words: “But Congress may, by a vote of two-thirds of each house, remove such a disability.” Talcing the third section, then, in its completeness, with this final clause, it seems to put beyond reasonable question the conclusion, that the intention of the people of the United States, in adopting the fourteenth amendment, was to create a disability, to be [639]*639removed in proper cases by a two-thirds vote, and to be made' operative in other cases by the legislation of Congress in its ordinary course. The construction gives certain effect to the undoubted intent of the amendment, to insure the exclusion from office of the designated class of persons, if not relieved from their disabilities, and avoids the manifold evils which must attend the construction insisted upon by the counsel for the petitioner.
It results from this examination, that persons in office by lawful appointment, or elected before the promulgation of the fourteenth amendment, are not removed therefrom by the direct and immediate effect of the prohibition to hold office contained in the third section; but that legislation by Congress is necessary to give effect to the prohibition, by providing for such removal. And it results further, that the exercise of their several functions by these officers, until removed in pursuance of such legislation, is not unlawful.
The views which have been just stated receive strong confirmation from the action of Congress and of the executive department of the Government. The decision of the district judge, nowT under revision, was made in December, 1868, and two months afterwards, in February, 1869, Congress adopted a joint resolution, entitled “A resolution respecting the provisional governments of Virginia and Texas.” In this resolution it was provided, that persons “holding office in the provisional governments of Virginia and Texas,” but unable to take and subscribe to the test-oath prescribed by the act of July 2, 1862, except those relieved by disability, “be removed therefrom,” but a provision was added suspending the operation of the resolution for thirty days from its passage. The joint resolution was passed and received by the President on the 6th of February, and, not having been returned in ten days, became a law without his approval.
[640]*640It cannot be doubted that this joint resolution recognized persons unable to take the oath required, to which class belonged all persons within the description of the third section of the fourteenth amendment, as holding office in Virginia at the date of its passage, and provided for their removal from office.
It is not clear whether it was the intent of Congress that this removal should be effected in Virginia by the force of the joint resolution itself or by the commander of the first military district. It was understood by the executive or military authorities as directing the removal of the persons described by military order. The resolution was published by command of the general of the army, for the information of all concerned, on the 22d of March, 1869. It had been previously published by direction of the commander of the first military district, accompanied by an order, to take effect on the 18th of March, 1869, removing the persons described from office. The date at which this order was to take effect was afterwards changed to the 21st of March.
It is plain enough from this statement that persons holding office in Virginia, and within the prohibition of the fourteenth amendment, were not regarded by Congress, or by the military authority, in March, 1869, as having been already removed from office.
It is unnecessary to discuss here the question whether the government of Virginia, which seems to have been not provisional but permanent, when transferred from Alexandria to Richmond, became provisional under the subsequent legislation of Congress, or to express any opinion concerning the validity of the joint resolution, or of the proceedings under it. The resolution and proceedings are referred to here only for the purpose of showing that the amendment had not been regarded by Congress or the Executive, so far as represented by the military authorities, [641]*641as effecting an immediate removal of the officers described in the third section.
After the most careful consideration, I find myself constrained to the conclusion, that Hugh W. Sheffey had not been removed from the office of judge at the time of the trial and sentence of the petitioner; and, therefore, that the sentence of the Circuit Court of Bockbridge county was lawful.
In this view of the case, it becomes necessary to determine the question relating to the effect of the sentence of a judge de fado, exercising the office with the color, but without the substance of right. It is proper to say, however, that I should have no difficulty in sustaining the custody of the sheriff under the sentence of a court held by such a judge.
Instructive argument and illustration of this branch of the case might be derived from an examination of those provisions of the Constitution ordaining that no person shall be a Bepresentative, or Senator, or President, or Vice President, unless having certain prescribed qualifications. These provisions, as well as those which ordain that no Senator or Bepresentative shall, during his term of service, he appointed to any office under the United States under certain circumstances, and that no person holding any such office shall while holding such office be a member of either 'house, operate on the capacity to take office. The election or appointment itself is prohibited and invalidated, and yet no instance is believed to exist where a person has been actually elected, and has actually taken the office notwithstanding the prohibition, and his acts, while exercising its functions, have been held invalid.
But it is unnecessary to pursue the examination. The cases cited by counsel cover the whole ground, both of principle and authority. (Taylor v. Skinner, 2 S. C., 696; State v. Bloom, 17 Wis., 521; Ex rel. Ralston v. Bangs, 24 Ill., 184.)
[642]*642This subject received the consideration of the judges of the Supreme Court at the last term, with reference to this and kindred cases in this district, and I am authorized to say, that they unanimously concurred in the opinion that a person convicted by a jury, and sentenced by a court held by a judge de facto, acting under color of office, though not de jure, and detained in custody in pursuance of his sentence, cannot be properly discharged upon habeas corpus.
It follows, that the order of the district judge must be reversed, and that the petitioner must be remanded to the custody of the sheriff of Rockbridge county.