1 W. Va. 269 | W. Va. | 1866
Lead Opinion
This is a motion on the part of Hon. Charles J. Faulkner to be admitted to quality and practice as an attorney at law in this court, upon Ms taking, the oath to support the constitution of the United States and the constitution of this State, and the oath of office as an attorney at law; but without taking the oath prescribed by the act of November 16th, 1863, commonly called the test oath: having produced evidence satisfactory to the court, that he was a licensed attorney under the laws of Virginia, and a practitioner in the courts of that State prior to the formation of the State of West Virginia; and claiming to be a loyal citizen of tMs State, resident in the county of Berkeley, which was accepted as true by the assistant attorney for the Attorney General. But it is objected for the Attorney General, 1st, That a Virginia license cannot avail the applicant in the courts of this State; 2nd, That if it could, yet he cannot lawfully be admitted to practice as an attorney at law in this coui't, without first taking the oath prescribed by the-last mentioned act, for persons elected or appointed to any office or trust, civil or military; which oath is commonly called the test oath.
As to the first objection, the formation of the State of West Virginia within the territorial jurisdiction of the State of Virginia, was a coup d’etat accomplished in con
The 2nd objection is of greater import, and has been argued with ability, learning and research on both sides; and I have given to the case a careful consideration.
Great pains have been taken and much learning displayed in the effort to prove that, an attorney at law was an officer; which in one sense cannot be successfully controverted; but the real question is, whether or not, he is an officer elected or appointed to an office or trust within the meaning of the said test oath act?
He was not such an officer within the meaning of the anti-duelling act; which was also a sort of test oath act. So the court of appeals expressly held in Leigh’s case in 1 Mun-ford. The anti-duelling act disabled the duelist from “being elected or appointed to any office or post of profit, trust or emolument, civil or military, legislative, executive or judicial, under the government of the commonwealth.” The language of the act under consideration is, “ every person elected or appointed to any office of trust, civil or military, shall, &c.” It was admitted in the argument on both sides that, the reading in the act, “ office of trust,” should be “office or trust:” the word of being a clerical misprision, for the word or: and by comparison of the act With the first section of the act of June 26th, 1863, of which it is amendatory, and with 5th section of article 3, of the constitution, there can be little doubt of the fact as conceded.
A distinction has been attempted to be taken between the
The construction given to the act in Leigh’s case has been received and acquiesced in as the unquestioned rule of law in Virginia from the time it was pronounced to the present. That the ease was rightly determined is confirmed by the ruling of the supreme court of New York in the matter of oaths of attorneys: 20 Johns., 492, upon a similar statute; without reference to the Virginia decision.
It is also confirmed by the course of the supreme court, and Senate and House of Bepresentatives of the United States, in permitting senators and representatives in Congress, to practice in that court, and still sit in their respective houses; which they could not have done upon any other rule of construction, than that settled in the cases above cited; because the constitution of the United States, which they all swore to support, declares that, “ no person holding any office under the United States shall be a member of either house during his continuance in office.” If then, an attorney at law is, as contended for by the contestants, an officer, and when admitted to practice in the supreme court of the United States is an officer under the United States, within the meaning of the constitution, then he could not be a member of either house; nor sit in those bodies during his continuance in his civil office of attorney at law. To do so would be such a high offense, that it cannot be supposed to have passed unobserved or unthought of by the many eminent lawyers, statesmen and jurists, who have habitually done the like from the commencement of the government to the present' time, without reprehension in a single instance. Again, the act of Congress of July 2nd, 1862, requiring “ every person elected or appointed'to any office of honor or profit under the government of the United States, either in the civil, military or naval departments of the public ser
On January 24th, 1865, a little less than three years after tbe passage of tbe former act of July 2nd, 1862, Congress passed another act supplemental to tbe former act, and so stated in tbe title to be supplemental to tbe former, requiring attorneys to take and subscribe tbe oatb prescribed in tbe former act. But one reason can be given for tbe passage of this latter act, and that is, that tbe former did not embrace attorneys. Here then was congressional and legislative interpretation of tbe act from which our test act was taken; and it is manifest that tbe judges of tbe Federal courts throughout the country must have taken tbe same view of tbe former act: otherwise, they would have enforced it against all their attorneys, and thus have prevented tbe necessity for passing tbe latter act.
Again, tbe act of 1788, (12 Hen. Stat. at Large) which, though pruned by subsequent legislation and revisal of much of its verbosity, still stands on the statute book in all its substantial elements tbe law of to-day, prohibiting all persons bolding any office or trust under tbe government of tbe United States, from bolding any office or ti’ust under tbe commonwealth, whether civil or military, legislative, executive or judicial, with tbe exception that members of Congress may be justices of tbe peace, and certain other exceptions therein specified, among which attorneys are not named nor included. If, therefore, attorneys at law were officers as contended for by tbe assistant Attorney General, no member of Congress, nor attorney practicing in tbe supreme or any circuit or district coirrt of tbe United States, could bold any office or trust, civil or military, under tbe commonwealth of Virginia, nor of this State; nor be allowed to practice as an attorney in tbe courts of either State. Yet, no such exclusion has, in a single instance, ever been
Again, the ordinance of the convention of June, 1861, which reorganized the State government that had been usurped by the rebels, required “ all officers in the service of the State, or of any county, city or town therof, or thereafter to be elected or appointed for such service,” to take.the oath prescribed by that ordinance; but it was never held or even contended that attorneys were thereby required to take said oath to entitle them to practice in the courts of the restored goverment of the State; neither were they required so to do by the courts, until the legislature passed the act of February 10th, 1862; by the 2nd section of which they were in express terms required to take the oath prescribed by the said ordinance for officers. Thus it seems clear from the legislation reviewed and considered, that whenever it was the legislative intention to embrace attorneys at law, they ale named as such; and when not so intended they are not so named, and are not included by the general terms “ all officers elected or appointed, &c.”
Viewed therefore, in the light of past legislation and judicial construction so generally acquiesced in, it would seem to be the settled understanding from a very early period of our history that, attorneys at law were not officers of the government either State or national, elected or appointed, within the meaning of any of said acts relative to officers, civil or military; but on the contrary, that they were .'a profession or class sui generis ; and though called officers of courts, yet never in the sense of these acts, nor intended to be embraced by them.
It is a well settled principle, admitted by both sides in the argument, that in giving construction to any statute, the legislature must be understood to have used terms and set
Can that statute, so passed, be now construed by any other rule of interpretation than that so long and well settled, and so universally recognized and acknowledged ? It cannot be on any principle of reason, justice or sound policy; and the construction contended for by the assistant Attorney General, is still more untenable, when it is remembered that the act, though perhaps not strictly ex post facto, is penal in its nature and retrospective in its operation, and should therefore, be construed strictly; yet it is sought to make it embrace by construction, attorneys, when they are not named.
It seems to me impossible to give to the act in question, such a construction, with such surroundings and such antecedents ; or even to harbour a suspicion that a solitary member of the legislature that passed it ever dreamed, much less believed, that it embraced attorneys.
I see no reason, therefore, in the 2nd objection, to authorize this court in refusing to permit the applicant to qualify and practice as an attorney and counsellor in this court, upon his taking the oaths required by law — viz, the oaths to support the constitution of the United States and the constitution of this State; and the oath of office as an attorney.
But it may be asked, if an attorney is not an officer elected or appointed, within the meaning of said act, how is it that he is required to take the oaths to support the constitution of the United States and of this State ? It is answered that by the 3rd section of chapter 164, Code of 1860, every attorney is required to take the oath of fidelity to the State; the form of which was prescribed by the 1st section of chap
The controversy we are required to settle has arisen on the application, on a previous day of the term, of Charles James Faulkner, to be admitted as an attorney at law to practice in this court. The said Faulkner claims to be a loyal citizen of the United States and of this State, resident in the county of Berkeley, where he has been residing many years, and was so residing at the time, and for many years antecedent to the creation of the State of West Virginia. He also proved, or offered to prove to the satisfaction of the court, that many years previous to the creation of this State, he had been duly licensed, under the laws of the State of Virginia, to practice law in the courts of that State, and had accordingly so practiced for a long period of time, and also in the supreme court of the United States; and also offered to take the oath to support the constitution of the United States, and of this State, and the oath of office.
But without controverting these facts, an objection was interposed by the Attorney General to the admission of the said Faulkner, upon the ground, first, that it did not appear that the said Faulkner had ever taken the oath to support the restored government of Virginia as required by the act of the 10th of February, 1862, whereby, as is claimed, his license became null and void, but if otherwise, that still by the formation of this State his license so obtained under the laws of the olcl State necessarily and ex vi termini expired and cannot avail him in the courts of the new; and secondly and mainly, because the said Faulkner cannot lawfully be admitted to practice in the courts of this State without first taking the additional oath prescribed by the act of the 16th k of November, 1863, required to be taken by all persons/ elected or appointed to any office or trust, civil or miliU'ri'‘
The argument has taken the widest possible scope, exhibiting the most commendable industry, thorough research and signal ability, and it afíords me great pleasure to add that the very elevated tone of the discussion, marked as it was by the utmost propriety, courtesy and good temper, was alike gratifying to this court and honorable to the distinguished counsel who participated in it.
As I propose to discuss no topic of the law not precisely applicable to the questions under consideration, I will proceed at once to dispose of the objections in the order in which they have been made.
First, then, did the failure of the said Faulkner to take the oath prescribed by the act of the 10th of February, 1862, requiring attorneys residing in the State of Virginia to take the oath therein provided, have the effect to vacate his license ? I do not perceive upon what ground it can be so contended. The act itself does not declare his license null, for a failure to comply with its provisions, but only prohibits the attorney from practicing his profession without first taking the oaths, and subjects him to certain fines and penalties mentioned in the 10th section of chapter 38 of the Code of 1860, in the event such attorney does practice in any of the courts without complying with its provisions. And moreover, the act being a war measure, provides that it should only remain in force from its passage until the end of the war then pending in this country. I think it clear, therefore, that a failure by an attorney to comply with the provisions of this statute while it -was in force did not in any way affect or invalidate his license.
Did the formation of the State of "West Virginia have the effect imputed to it of ipso facto annulling the licenses of all
_ I think, therefore, the first objection is not sustained, and is wholly untenable.
I come now to the second and main objection which has been so strongly urged and ably argued, namely: is an attorney at law legally bound to take the oath known as the test oath, before he can be admitted to practice in the courts of this State ?
This question involves the true construction of the act of the 16th of November, 1868; for if this act embraces attorneys at law, then the application of Mr. Faulkner must fail unless he takes the oath therein prescribed; but if they are not so included, then there seems to be no impediment in the way of his admission to the bar of this court.
In the construction of this, as in all other statutes, we are to ascertain if possible, and effectuate the will or intention of the legislature, and in order to ascertain the legislative intent, we are to look to the surrounding circumstances at the time of the enactment.
Another well established and fundamental rule of Construction, cited and relied on by both parties to this controversy, is that all acts and provisions of the law in pari materia are to be taken and considered together. It follows, therefore, that in construing the act under examination, we must look to the object and purpose of the legislature as gathered from the light of surrounding circumstances, and
The act of tbe 16th of November, 1863, it will be perceived, simply amends and re-enacts tbe first section of tbe act of tbe 26tb of June, 1863. Tbe first clause of tbe first section of tbe former act is a literal copy of the first section of tbe latter, except that there is a plain typographical error in tbe first line of tbe section in substituting tbe word of for tbe word or between the words office and trust, making it read “office of trust” instead of “office or trust,” as it was intended to be. This error is conceded by both parties, and is quite obvious when we consider that tbe legislature intended to apply a new and additional oath to tbe same class and not to diminish the class, as would be tbe case if taken literally as it stands, as none but officers of trust (if there can be such an office) would be embraced, whilst all officers who are not officers of trust (constituting as they do much tbe larger portion of tbe officers of tbe State,) would be excluded and absolved from taking tbe oath therein prescribed.
Tbe act under consideration amending and re-enacting the first section of tbe act of tbe 26th of June, 1863, must, of course, bear tbe same relation to tbe other sections of the latter act as tbe first section did before it was so amended and re-enacted. And as tbe first section of the. act of tbe 26th of June, 1863, before amended, as well as tbe first clause of the same section as amended, is an exact transcript of tbe first clause of tbe 5th section of tbe 3rd article of tbe constitution of tbis State, it follows that they all refer to and embrace the same class of persons and must of consequence receive tbe same interpretation.
Another rule of construction which I omitted to refer to in its proper connection, is that where tbe same or similar words are used in a statute which are found in a previous statute relating to the same subject matter, tbe latter act must receive tbe same construction as tbe former. And yet another rule founded in obvious reason and policy, is that
With these explanations we come to the precise question to be determined, namely, is an attorney at law, upon a fair construction of the act in question, included in it and therefore bound to take the test oath therein provided ? And if so included, is it because he is appointed to execute a civil trust or a civil office under the State or government? The former was not much insisted on, nor in my judgment can it be with any show of propriety or reason, for so far as my knowledge extends, it has never been seriously contended, that the position of an attorney was that of a trustee, but on the contrary it has been and is insisted that his true status is that of an officer, and that he in fact executes an office and not a trust.
The sole and vital question then, is, whether an attorney is embraced in the terms civil offieer in the sense of the statute ? Now the statute, it is most obvious, refers to and provides for the civil officers of the State or government, and to bring an attorney at law within its provisions, it follows, that he must fall within the definition of a civil officer of the State. And this, as I understand, was mutually conceded by the learned counsel for the State, who maintained with great earnestness, the proposition that an attorney at law in the popular and long established sense of the term, is a public officer of the. government, and is therefore brought directly within the letter and spirit of the act we are considering. Can this proposition be successfully maintained ? Is an attorney an officer, and if so, is he such a civil
The view of the question which I have been constrained to adopt renders it immaterial to investigate and undertake to settle the vexed question so much discussed, of the’precise status of the attorney in the courts of England, in the State of New York and other States' of the Union.
The true solution of the question, as it seems to me, may be readily found in the legislation and adjudications of the State of Virginia, the constitution of this State and the provisions of the act in question; and that a careful examination of these cannot fail to conduct us to correct conclusions, and leave no shadow of doubt on the mind as to the construction the act must receive — namely, that attorneys at law were not intended to be, nor can they by any liberality of construction be brought within the purview of the act of the 16th of November, 1863.
And if we were to undertake to hold otherwise, it will be found, I think, that we would encounter objections and difficulties at every step of the investigation, and if, after exercising all our powers of discrimination and astuteness, we should be able to satisfactorily reconcile one objection, we should very sooíj be met by another, more difficult and insuperable than the one already overcome.
The act of 1809, known as the anti-dueling act, included all persons elected or appointed to any “ office or place, civil or military,” (terms similar to those found in our act and evidently embracing the same class,) and it was held, and as I think correctly, by the supreme court of appeals of Virginia in Leigh’s case, as early as 1810, that it did not embrace attorneys at law as they were not officers under the commonwealth, within the meaning of that act, and it is abundantly clear that the subsequent legislation of the State relating to offices and attorneys .proceeded upon the settled hypothesis that attorneys at law were not deemed officers of the State or government. To hold otherwise we must convict the legislature of the unaccountable folly of intro
Again, the 11th section of chapter 13 of the Code of 1860, (relating to the oaths and bonds of officers,) page 103, provides that if any person elected or appointed to any office or post shall act in said office or post before taking the
These are some of the consequences that would ensue if we give to the act the construction contended for; and there are many other discrepencies equally patent, but I shall not stop to pursue the investigation further.
I will only add, that coming down to the constitution of the State of West Virginia, and the various enactments of the legislature relating to the officers of the State (including the act of November 16th, 1868,) the same confusion and discord would ensue, if we adopt the rule contended for, by holding that attorneys at law are embraced in the act under consideration.
By holding as I think we are bound to, that the laws of Virginia and the constitution and laws of this State relating to officers do not include all attorneys at law; the variqus enactments are perfectly symmetrical and harmonious, while on the other hand if we should hold otherwise, as we are urged to do, the whole system is at once thrown into confusion, becomes inharmonious, disjointed and utterly impossible of any intelligent and rational interpretation. Why then should we disturb this harmony? Why seek by presumptions the most violent, by implications the most unwarrantable, to force within the purview of the act a class which it is so evident was not meant to be embraced by it?
I think the objections to the admission of Mr. Faulkner must be overruled.
Dissenting Opinion
dissetiente. Tbis is.a motion by Charles James Faulkner, of West Virginia, to be admitted to the bar of this court, without taking the oath prescribed by the act of November 16th, 1863, (see Session Acts of 1863, ch. 106, page 138.) That act provides, that “every person elected or appointed to any office of trust, civil or military, shall, before proceeding to exercise the authority or discharge the duties of the same, take the following oath: “I, A. B., do solemnly swear that I will support the constitution of the United States, and the constitution of this State; that I have never voluntarily borne arms against the United States; that I have, voluntarily, given no aid or comfort to persons engaged in armed hostility thereto, by countenancing, counseling, or encouraging them in the same; that I have not sought, accepted, nor attempted to exercise the functions of any office whatever, under any authority in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power or constitution within the United States, hostile or inimical thereto; and that I take this obligation freely, without any mental reservation'or purpose of evasion.”
Before proceeding to the main inquiry whether an attorney at law is an officer within the meaning of this statute, there is a preliminary question to be settled; whether the applicant from his own showing is entitled to be admitted to this bar, either with or without taking the oath. He claims admission as a resident lawyer of this State, under a license obtained more,than thirty years ago to practice his profession in the courts of Virginia. In his learned and able opinion in the Quarrier case, (page 7,) Judge Polsley, remarks: “The 4th section of ‘an ordinance’ passed June 19th, 1861, after enumerating a long number of officers, (among which attorneys are not mentioned,) provides that none of them shall proceed to discharge the duties of their several offices, until they take an oath to support the constitution of the United States and to uphold and defend the government of Virginia, as vindicated and restored by the convention'which assembled at
There is no proof before this court, nor does the law presume, that the applicant ever complied with this requirement. It was a condition precedent to his right to use a license previously granted, and without which, had he applied for admission to the bar of any court in this State, whilst that statute was in force, he would, of course, have been refused. In practice at least, if not in law, he was no longer an attorney, until he took that oath. It was a test of fealty to the government which the legislature had a right to require, and which the applicant as an attorney was bound to take. Upon his failing to do so, or rather, during the continuance of such failure, his license became suspended or abeyed, until the act of February, 1862, was complied with, and until that act is shown to have been complied with, he cannot be treated by this court, even as a licensed lawyer in Virginia, under a license whose operation was thus suspended; nor can he be recognized as an attorney at this bar under any license, until he has been rehabilitated or re-licensed as such, according to the provisions of sections 1, 2 and 3 of the Code of Virginia, page 699, which prescribe the mode of proceeding in such cases. My opinion is, that he must either be licensed cíe novo, or show that his original license, once suspended or abeyed, is again in force.
Besides, admitting the validity of that license in Virginia, in order to give it any validity in this State, he would have to show-that he was not only duly licensed, but practicing under such license, as counsel or attorney in the State of Vir
I am, therefore, of opinion, that Mr. Faulkner lost his status as a Virginia lawyer, by failing to take the oath prescribed by the act of February 10th, 1862, and that there is nothing in the record which restores that status, or which shows that he is now a properly licensed attorney, either there or here, according to the laws of West Virginia.
2nd. Assuming the applicant to be duly licensed as an attorney, is he bound as such, before he can properly he admitted to this bar, to take the oath prescribed by the act of November 16th, 1863? -This question turns entirely upon the construction of the term “ officer,”' in its application to attorneys at law. Is an attorney at law an officer? Is he an officer of trust? Is he a civil or military officer? Is he an officer either elected or appointed? TJpon the answer to these questions must depend the fate of this motion.
An attorney, says Bacon, “is one set in the place of another, and is either public, as an attorney at law whose warrant is talis ponit loco suo talem attornaium, or private, wlm has authority given him to act in the place and stead ot him by whom he is delegated.”
Again — “The person here treated of is an attorney at law, who is appointed to prosecute and defend for his client, and is considered as an officer belonging to the courts of justice, concerning whom there' are several statutes and resolutions.” 1 Bacon’s Abr., page 474, title “Attorney”; 3 Blackstone’s Com., 25, 29; 1 Cunningham’s Law Die., title “Attorney”; 1 Burns’ Law Die., page 69; 1 Kent’s Com., 306 to 308.
The definition and classification of officers generally, will be found in 7 Bacon’s Abri., 279, 280, title “Office and Officers.” From this may be deduced:
1st. That the word office (officium) impo-rts a duty or trust.
2nd. That all officers are either civil or military, public or private according to the nature of their several trusts.
4th. That all civil officers are again divisible into political, judicial and ministerial.
5th. That attorneys at law ex virtnte officii, belong properly to the class of judicial officers.
6th. That they derive their office by appointment.
If these propositions be law, without going any further, do they not settle all the questions in this case? Do they not show beyond all question that an attorney at law is not only an officer, but a civil or public officer, within the definition of that term, and in the sense of the statute? Is he not an officer of trust also? The term office (says Lord Bacon) imports a trust. If this is its general signification, it can hardly lose the character of a trust when applied to the office of attorney — an office, in fact, which in all its bearings and relations, both public and private, may be said to possess the indicia of a trust of the highest nature.
It was claimed by Mr. Faulkner at the bar (and, I think, with reason) that by some clerical or typographical mistake, the words “office of trust,” as they now stand, were erroneously substituted in the statute for the words “office or trust,” as they ought to read. Be it so. This cannot change the purport of the statute. If anything, the act, as thus interpolated, would read more strongly against the applicant, for then, if either an officer or trustee, or if a trustee and not an officer (if the thing were possible) he would be clearly embraced by its provisions. One or the other, (either an officer or trustee) he certainly is. In my opinion, he is both — not only an officer, but an officer of trust in the largest sense. A trust in common parlance, may be said to be a confidence reposed by some one in some one, and for some public or private purpose. It is defined by Mr. Story to be an equitable interest in an estate, as con-tradistinguished from the legal title. It can hardly be supposed, however, that the statute meant to use the term
I am of opinion that an attorney at law is not only an officer, but a trustee within the meaning of the statute.
3. Is he either elected or appointed? The term “elected,” generally speaking, imports a popular election. The term “ appointed” excludes that idea and refers the office or trust to some other source. Every officer not elected may well be said to be appointed. TJnder the law of West Virginia the Attorney General of the State and a prosecuting attorney for each county are the only attorneys who are elected. Even there, it is their peculiar official relation to the public, and not their office as attorney which is the subject of election. With this exception, if it can be called one, no attorney at law can be said to be elected. Is he appointed? The law requires, that before a resident lawyer can' be admitted to practice he must first obtain a certificate of honest demeanor; that he is over the age of twenty-one: and must also obtain a license or certificate from three-judges that he is duly authorized to practice in any of the courts of this State. Is not this an appointment? It is a license or permission to practice law without which he would have no right to practice it, without being subjected to heavy penalties. Is not this an appointment?— quite as much so as a commission from the Governor,, or letters patent from the crown. What is a license or commission, or letters patent, but an appointment? In England, before the statute of Westmr. 2, chap. 10, all attorneys were made by letters patent under the great seal; and were after-wards admitted by the courts: Bacon’s Abr., page 474, title “Attorney.” In Virginia, they were first commissioned by the Governor, but the power to appoint attorneys was soon transferred-from the Governor to the judges, where it still exists. I take it, that an attorney now licensed by our judges, is as much an appointed officer, within the statute, as those who figured during the colonial history of Virginia,
I am of the opinion, therefore, that an attorney at law is an appointed civil officer or trustee, within the meaning of the act.
It was argued very ably at the bar, that an attorney at law is not a public officer; and Leigh’s case, 1 Munf. 468, and 20 Johns. Rep., 492, were cited in support of this position. I do not think that they sustain it. In Leigh’s case, decided 56 years ago, two of the three judges were divided Upon the question, and the third (judge Fleming,) in fact, expressed no opinion upon the point. The case in 20, Johns., (decided in 1823,) is not only in conflict with the elementary writers before cited, but with the whole current of decision since that period, in the State of New York: Ex parte Wood, 1 Hopkin’s Ch. Rep., 6; Seymour vs. Ellison, 2 Cowen, 13; Ray vs. Birdseye, 5 Denio, 619; ex parte Beakley, 5 Paige, 311; Merritt v. Lambert, 10 Johns. Rep., 352; McKoune vs. Davies, 3 Barb., 196; Waters vs. Whittimore, 22 Barb., 593; ex parte Cooper, 22 New York Rep., 67. Upon the same point see also State vs. Chapman, 11 Ohio, 430; Rev. Stat. Mass. 1836, 539 to 542; 1 Cunningham’s Law Dict., title “Attorney;” 1 Burns’ Law Dic., title “Attorney,” page 69; Banardiston Ch. Rep., 478; Hurst’s case, Thomas Raymond’s Rep., 56, 94; same case, Lev., 75; Keb., 349, 359, 387, 549, 558, 678; 5 Mod’s Rep., 432; Sid., 152; 1 Jacob & Walker, 440, Cropley vs. Parker; 4 Burrows, 2061; 2 Wils., 225; Hobart, 117; 2 Atk. 295, Saunders vs. Glass; Id. 298, Middleton vs. Hall, 1 Cox Ch. cases, 112. People vs. Justices of Delaware, 1 John.’s cases, 181; ex parte Emmet, 2 Caines, 386. Against this host of high authorities it would seem to be too late at this day to question the proposition, that an attorney is a public officer. His status as such, and as a necessary appendage of the court in the administration of justice, obtained at an early period, both in the Roman and French systems of jurisprudence, and in England as early as the reign of the first Edward. From
4. Next as to bis status under tbe Federal Government.
Tbe constitution of tbe United States, article 6, section 3, requires all judicial and executive officers of tbe Federal and State governments to take tbe oatb to support tbe constitution of tbe United States. Tbe judiciary act of September 24th, 1789, S. 35, (1 U. S. Statutes at Large, p. 92,) provides tbat attorneys and counsel may practice in tbe courts of tbe United States under rules to be prescribed by tbe latter. Tbe constitution does not attempt to define “offices,” nor tbe act to define “counsel” or “attorney.” They must therefore be taken to use those terms in their accepted legal sense: Sedg. on tbe Construction of Statutes, &c., pp. 26, 263-268, and the cases there cited. Tbe supreme court, at its first term in February, 1790, adopted a rule requiring attorneys and counsel to take tbe oatb to support tbe constitution and their own special official oatb. This rule bas remained in force ever since, and its existence can be reasonably referred to no other idea than tbat tbe court understood tbe constitution and tbe act in this sense. This is abundantly confirmed by Chancellor Kent, in 1 Kent’s Com., 308, and in tbe matter of Daniel "Wood, 1 Hopkins, Ch. Hep., 6. Perhaps tbe strongest confirmation, as to tbe Federal practice is to be found in tbe acts of Congress of July, 1862, and January, 1865 — the former applying the test oatb to all officers, civil and military; tbe latter discriminating between tbe attorneys and counsel of tbe several Federal courts, as to tbe time when they shall take tbe oatb prescribed in tbe former act, and its penal clause declaring them to be holders of office. "With a single exception, already stated, tbe law of Virginia bas been one way on tbe subject. Beginning with a colonial act as early
Se'e 1 Henning’s Statutes at Large, 275, 302, 330, 349, 419, 482; 2 Id., 81, 478 to 479, 498; 4 Id., 59, 360 to 362, 408 to 422, 479 to 507; 5 Id., 38 to 54, 171, 181 to 182, 826 to 348, 473; 6 Id., 140 to 143, 331, 336, 371; 7 Id., 124 to 125, 397 to 404; 8 Id., 185 to 186, 198, 385; 9 Id., 119, 121 to 127, 528; 11 Id., 76, 182 to 188; 12 Id., 36, 339, 472 to 473; 1 Rev. Code of 1819, p. 267; Code of Virginia, (I860,) p. 699.
5. As to tbe constitution and legislation of "West Virginia, in tbeir effect upon this question.
Tbe ordinance of tbe re-organized government of Virginia, of June 19th 1861, prescribed an oath of allegiance for all officers, which, upon my previous reasoning, embraces attorneys. Tbe act of February 10th, 1862, passed, evidently, as a declaratory act, on this point, in terms, embraces them, as officers. Tbe constitution of "West Virginia, art. -3, sec. 5, requires “ every person, elected or appointed, to any office or trust, civil or military,” to take “the oath to support tbe constitution of tbe United States and of this State.” Tbe 11th article, section 8, provides, that tbe laws of Virginia, as in force within tbe bounds of West Virginia, when tbe latter State goes into operation, shall be the laws of the State except as repealed or altered by legislation. By those laws, as we have seen from 1642, to 1860, attorneys (with one exception) have been uniformly treated as public officers. I can see nothing in tbe constitution or laws of West Virginia to warrant a different construction in this case.
In expounding this statute it is proper to look, it seems to me, to tbe peculiar condition of tbe country, and to the particular exigencies and necessities which existed when tbe act was passed. Tbe preamble, or purpose of a statute is sometimes tbe only key which unlocks its meaning. If it is not allowed to control any clear and express provisions to
For the reasons assigned, however reluctant I may be to differ from a majority of the court in this opinion, I think the motion at bar should be overruled.
Mr. Faulkner was admitted upon taking the oath to support the constitution of the U. S. and of this State, and the usual attorney’s oath to honestly demean himself.
