2 W. Va. 122 | W. Va. | 1867
This is an application by the above named gentlemen to be admitted to practice as counsellors and attorneys at law in this court, upon taking the oath to support the constitution of the United States and of this State; but, without taking the oath prescribed by the act of February 14th, 1866, entitled “An act in relation to the oaths of attorneys at law.”
All of them had been regularly licensed and practicing lawyers in the State of Virginia antecedent to and at the breaking out of the rebellion, and all resident, then and now, Avithin the territory embraced in the State of West Virginia. All had adhered to and taken part in the rebellion from the beginning, and continued till after Lee’s surrender, when they respectively surrendered themselves as prisoners to the military forces of the United States on the same terms extended by General Grant to the forces under the rebel chief. All have received the Executive clemency, and all accepted the Executive pardon, upon the terms prescribed in the amnesty
In entering upon the consideration of this case, it is necessary to group together the facts and circumstances connected with, and which induced the act, which the court is asked to invalidate.
A civil war existed between the government of the United States and a portion of her citizens. The war was prosecuted on the part of the government to suppress the rebellion and restore the Union, and on the part of the rebels to disrupt the Union and establish an independent government over part of the States of the Union. The State of West Virginia, in common with the other loyal States, lent her aid in the general effort, but in addition thereto she was from the day of her foundation engaged in a war of self-defence on her own responsibility, against her enemies, who invaded her territory and sought by military force her overthrow and extinction.
To this end, in addition to near thirty thousand troops furnished to the National government, she raised and equipped numerous independent forces of State troops on her own account, and for her own defence, officered and paid by the State, and acting under the command of the State authorities. These are matters of such public notoriety and general concernment, as require the court to take judicial notice of them, so far as they have connection with, or bearing upon the statute under review.
By the Constitution of the United States, Art. 1, sec. 8, it is provided that a State may keep troops and engage in war when invaded, or when in such imminent danger as not to admit of delay.
There can be no doubt, therefore, of the existence and
Pending this state of war the act in question was passed, not for the purpose of punishing the guilty parties, but to guard the State against the supposed danger likely, or at least possible, to arise from admitting enemies, or those who but recently had been so, to hold places of public confidence and influence both towards the people and the courts.
It may not have been the best policy in the legislature to attempt such means of safeguard as that adopted; but it cannot be denied that the object was within the legislative power, and the means within the legislative discretion.
It was, therefore, a war measure, rather than a peace offering, a precautionary measure to guard against prospective danger made a matter of some interest and solicitude by recent experiences.
It cannot be denied that the confidential and peculiar relations of the legal profession to the courts and people, their talents, learning and influence make them potent for good or evil, as they may be loyal or disloyal, in sustaining or subverting the government under which they exercise their great privileges. And if the history of the times were entirely silent on the subject, the act in question shows how the legislature regarded the sympathies and conduct of not a few of the profession in a most trying and critical period. And the legislature would doubtless answer, if questioned for the act, that those who had once done the things, which endangered the public safety, would not likely be very averse to attempt it again, if opportunity offered. It is the argument by which the common mind is satisfied that the sun will rise on the morrow, and is an application of the rule of judging the future by the past. But whether wisely or unwisely applied is a matter not for review by the court. It is at least sufficiently plausible, when taken in connection with the temper and spirit of the times, to save the legislature from the charge of wanton persecution.
It was contended that the war ended with the surrender
But that surrender was only to irresistible force, and not a voluntary, or even an involuntary, submission to the laws ■of the land — nor an admission even of any obligation so to submit; but, on the contrary, it contained an express assertion of the 'rights of war, and the right reserved to be exchanged as prisoners of war. The belligerent rights secured under that cartel lasted while the parties maintained the attitude of enemies in actual war — though prisoners on parole — but ceased when the prisoner grounded his opposition, as well as his arms, and submitted himself to his lawful, but offended government, and availed himself of the Executive clemency.
Eo benefit can be claimed here by the applicants, or either of them, from that cartel, after having availed themselves of the Executive pardon. As paroled prisoners they could not have any civil rights under the laws, nor be entertained in the courts of the other belligerent. Eor it would not be less repugnant to the laws of nature and of nations than to the common law, to permit public enemies to avail themselves of the use of the courts they were fighting to destroy, or act as officers and advisors of such courts, in expounding the laws which the expoundei’s set at defiance.
War does not of itself, necessarily, forfeit the enemies’ property and rights, so as prop'io vigore to divest them, but it gives .to the sovereign power the right' to declare the forfeiture and make it effective by positive law; or, in the language of Chief Justice Marshal], in delivering the opinion of the court in the case of Armitz Brown vs. The United States, 8 Cranch, 110, “It may be considered as the opinion of all who have written on the jus belli, that war gives the right to ■confiscate, but does not of itself confiscate the property of the enemy.”
nevertheless, without such positive declaration, the rights remain suspended until the war ends, and then what the war leaves may be resumed and enjoyed as before.
Hut admitting it to be true, as alleged, that the act does thus forfeit the privileges of attorneys, who were enemies engaged in rebellion, is it not then the exercise of a sovereign right, which war gives to every belligerent, to confiscate the property and forfeit the privileges of the enemy? Or, as we have scon the rights and privileges of attorneys in the courts of the other belligerent suspended by the war, if the effect of the act in question should only be to continue that suspension, without attempting to abrogate the' privilege altogether, would it not equally fall within the belligerent right, so plainly stated by Judge Marshall as the opinion of all who have-written on theyVs belli, and approved by the Supreme Court of the United States, in the case referred to ?
And' while the President’s pardon might restore the party to all the rights and privileges which he held or derived under the government which conferred the pardon, it would hardly, I imagine, be seriously contended that the effect of such a pardon could he extended further; hut would leave the party to make his peace -with his offended State as best he could; ail’d in no event could such a pardon restore him to forfeited privileges which had been originally conferred by, or derived from the State Government, and which, if enjoyed or exercised at all, must be done under the State laws.
The office of attorney-at-law is one peculiar to itself, and concerns the public weal no less than the private benefit of the attorney and his client.
The attorney is an officer of the court, whoso aid is essential to the proper administration of justice. As such officer, he holds intimate and confidential relations to both court and client, and occupies a position of dignity and honor, not
The license, of itself, and before admission or induction by the court, does not constitute the holder an attorney or officer of any court, but simply entitles him to be admitted as such, to practice in all the courts of the State, upon his taking the oaths required by the laws in force at the time of such admission, unless good cause appear to the court for withholding its permission. And any cause that would warrant the suspension or expulsion of an attorney from office, or, as it is commonly called, striking his name from the roll of attorneys, would equally authorize a refusal of admission. Otherwise, the court would be required to enact the folly of going through the forms of admission, only to be followed immediately by a judgment of amotion. In other words, to do, in order to undo. But the law requires neither courts nor individuals to do a vain thing.
It is the duty of the court not to permit any one to practice as an attorney at its bar who is not by law entitled to do so. (Collins’ case, 2 Va. cases, 222.) It is the right of every citizen to appear in court by attorney, but it is not the right of every citizen to appear in court as an attorney-at-law for another. (Code 1860, chap. 164, § 4, page 699.) This is a special privilege, conferred on a few only — and the qualifications and fitness most carefully guarded. It is manifest, therefore, that the admission by the court of an applicant to practice as an attorney at its bar, is a judicial, and not merely a ministerial act, involving not only the examination of the fact, whether the applicant has been duly licensed as an attorney-at-law, (which license is prima fade evidence of the honesty aud fitness of the applicant, and also of his age and qualifications,) but also, whether the charge be true, if made in proper form, of any act or cause
In the former case it can only be done for the causes assigned, and in the mode prescribed by the statute, and when so done supercedes or annuls the license altogether, and alike debars from admission, and disbars after admission from all the courts of the State. (Fisher’s case, 6 Leigh p. 619.) But in the latter case, that is, of amotion or suspension from the particular court — the court exercises only the common law powers of a court of record, and its judgment, whether called a judgment of amotion, suspension, expulsion, disbarment, or striking from the roll of attorneys, only affects the official position of the party in that particular court. And he might, notwithstanding such judgment, continue to practice as an attorney in any other court, unless the record were presented there and made the ground of a proceeding for a like object; in which case it would doubtless be deemed sufficient (until reversed,) to warrant a like judgment.
This supervision of the court over its own attorneys, and power of suspension or amotion of them from office, is also a power above and beyond the general power to punish by fine and imprisonment for contempt.
It springs from tbe propriety and necessity of keeping tlie temples of justice pure, and the duty of the courts in permitting none to minister there, who are unworthy. For the law will not suffer the temple of justice to he polluted, by making it a house of merchandise, or den of thieves.
On this point Judge Scott, delivering the opinion of the court in Fishers case, 6 Leigh, 624, said:
“The courts of Westminster Hall have, at all times, exercised the power of punishing their officers, among whom are the attorneys, in a summary way, for misbehavior in office. The punishment is inflicted sometimes by attaeh*146 ment; sometimes by fine; at others by striking their names from the roll of attorneys, by which they are disabled from practicing in the court inflicting that punishment. The power of thus punishing the officers of the court, although a branch of the general power of punishing contempts summarily, yet, greatly transcends the limits of the general power.” And the opinion of Fry, justice, in the same case, is to the same point, wherein he says:
“But it is believed, the powers of no court at common law, extend farther than to fine, imprison, or disbar, from its own forum. Contempts, or other misconduct, may be punished by fine, imprisonment or striking from the roll of attorneys. But striking from the roll of one court, did not extend to any other court. An attorney expelled from the common pleas, might still practice in the King’s bench, until the latter also excluded him. This it would do, it is true, upon proof of the record of the other court, provided the ease for which such court had acted, was an offence which ought to disqualify him.”
The foregoing views would seem to conclude the case of the present applicants, for although the sufficiency of their Virginia licenses has been settled by the case of Faulkner, as equivalent to similar licenses granted by this State, yet those licenses only entitle the holders to be admitted as attorneys-at-law upon their taking the oaths required by the laws in. force al the time of admission. For it is believed, that none of the applicants mentioned, whose applications are all subsequent to the passage of the act prescribing the oath complained of, hut admitted the power of the legislature to pass such a law, to operate prospectively on all who had not acquired a vested right in the office, and privilege of an attorney. And though it was claimed that they had such vested right by virtue thereof, which entitled them to admission before the passage of the act in question, yet that pretension cannot be sustained. While the applicants were in rebellion, and public enemies in a pending war, repudiating all obligation and allegiance to the United States and to this State, and while they claimed allegiance and
If, then, the applicants, while enemies, had no such rights or franchises as now claimed, when, and how, did they obtain them since? By our statute (Code 1860, chap. 164, § 2, page 699,) “any person duly licensed and practicing as counsellor or attomey-at-law, in any State adjoining this, or in the District of Columbia, may practice as such in the courts of this. State.” And by the act of February 10,1862, page 69, “ every attorney in the United States might do the same.”
These acts entitled all the attorneys in the United States, not resident in this State, to practice in all our courts, upon simply taking the oath to support the constitution of the United States, and the oath of office. Only a few availed themselves of the privilege. Since the passage of those acts others have been passed, modifying the oaths, and some adding new oaths. Now, have all the attorneys of the United States, who have not chosen to avail themselves of the privileges thus conferred, until the laws conferring the privileges have been changed, a vested right in the privilege aforesaid, and a franchise that cannot be infringed by the grantor, and therefore a right now, or at any time hereafter, that may suit their caprice, to apply for admission to practice without taking any of the oaths prescribed by subse-qnent laws? Gan it be possible that legislative, control over those who minister in the temples of justice is forever restrained? For it must be borne in mind, that a license which entitles a party to be admitted as attorney in court, is
It would he most unreasonable to give any other construction than that which applies the laws in force at the time of the application, and not alone those which were in force at the time the right to apply for admission was obtained, whether by license or statute.
Any other construction would forestall legislation, and in effect completely tie the hands of the law-makers in an important matter of public concern. It would he giving an effect to laws and licenses never contemplated by either grantors or grantees — an effect which might, be detrimental to the public good, and dangerous to the public safety.
The right to be admitted to practice as an attorney-at-law in our courts, whether that right be derived under the statute as in the case of attorneys of other States, or under a license as in the case of resident applicants, is always upon the condition of taking the oaths required by the laws in force at the time of admission, and not at the date of the right conferred. If at the time of admission no oaths were required by law, all former laws prescribing and requiring oaths having been repealed, surely no one would pretend
ISio proposition is better settled in both Virginias than that au attorney in one court is not an attorney in any other court, until admitted by each. When the courts of "West Virginia were first organized, there were, therefore, no attorneys therein. For those, who but the day before, were Virginia attorneys practicing in the Virginia courts, could not be "West Virginia attorneys practicing in West Virginia courts, until admitted by the latter courts, to qualify and practice as officers therein; and such was the practice in this and the circuit courts.
It is true, according to the ruling in Faulkner’s case (1st W. Va. Reports, 269,) the Virginia license was sufficient to entitle them to such admission, yet the qualification and admission by the court was no less essential then than in any other court, in which the attorney had never been admitted, or inducted. Upon such admission this court required the applicants to take the oath to support the constitution of the United States and of this State, instead of the oath of fidelity to the commonwealth of Virginia, which latter oath was the one required by law at the time the applicants were licensed and qualified in the courts of Virginia; the court-regarding the laws of Virginia adopted as the laws of this State where not repugnant to our constitution, so far modified as to require the oath of fidelity to the State of West Virginia, and the form of the oath as prescribed in the constitution, instead of the form prescribed in the Virginia statute.
Row suppose the present applicants had appeared at the inauguration of this court or any time before the collapse of the Confederacy, so called, and applied for admission to practice as attorneys at the bar of this court and had objected to taking the oaths required as above stated — alleging that one of them was a senator of the rebel State government at-
But could such an objection have been sustained, upon any principal of law or reason ? Certainly not. To have done so would have been to place the courts at the mercy of the foe, and given double aid and comfort to the enemy.
It would have been unequal, for such liberality was not reciprocal.
But on the contrary it would rather have been the duty of the court, having the parties in its presence and power, to have had them arrested and committed to aAvait the action of the proper authorities charged with the conduct of the Avar and the defense of the State.
Suppose the legislature should conclude that it was unwise and impolitic to continue the privilege to the attorneys of other States to practice here, and should repeal the law authorizing it; or at least, as regards those States whose laws do not extend a like privilege to our lawyers. Would any one be bold enough to contend that the repealing act would be void, and no bar to the admission of attorneys from such States who were such before the passage of the repealing act ?
But the question remains as to Messrs. Boggess and Lamb, who had been so admitted before the passage of the act
It is here to be borne in mind that those gentlemen do not stand on one of the grounds urged in behalf of the preceding applicants, viz: That the act is ex 2^ost facto, as to them, because they aver ability and readiness to take the oath, if required by the court, and therefore, there can be no punishment or deprivation, as alleged by the rest. But they insist that it is not competent for the legislature to prescribe additional oaths or qualifications without their consent, before they can exercise the privileges they had as attorneys of this court before the passage of the act. For the right, as they allege, to add one oath, will equally authorize any number of oaths, of any and every description.
Oaths have been resorted to by civilized governments generally, in all ages, and especially in times of war or public danger, as measures of protection, and as instrumen-talities of truth and safety.
It is a religious feature of national polity and is one of the few aspects in which all religious in some measure .agree. Nor have any appealed to this instrumentality more freely than the most civilized and Christian nations.
But oaths have not been regarded as means of punishment, nor resorted to in general for any such purpose.
It is certainly the duty of the State to guard its courts against the dangerous influence of those inimical to its existence and disloyal to its government. And this duty demands greater vigilance on the part of the government in times of war, or other public danger, when apprehensions of danger, whether real or imaginary, from without or with
The power to require oaths is certainly a legislative power, and as such, it has been freely exercised-by the British Parliament from time immemorial, by the 'colonial and State legislatures of Virginia, and by the legislature of this State.
Hor is the requirement of a certain prescribed oath, in the Constitution, a limitation on the legislative power to prescribe and require other and additional oaths. Stratton’s case, 1 W. Va., 305.
And in accordance with this is the opinion of Marshall, C. J., in McCullough vs. Maryland, 4 Wheat, 316, where in reviewing the powers of the government he says: “The powers vested in Congress may certainly be carried into execution without prescribing an oath of office. The power to exact this security for the faithful performance of duty is not given, nor is it indispensably necessary. The different departments may be established; taxes may be imposed and collected; armies and navies ma}? be raised and maintained; and money may be borrowed without an oath of office. It might be argued with as much plausibility, as other incidental powers have been assailed, that the convention was not unmindful of the subject. The oath which might be exacted — that of fidelity to the Constitution — is prescribed, and no other can be required. Yet he would be charged with insanity who would contend that the legislature might not superadd, to the oath directed by the Constitution, such other oath of office as its wisdom might suggest.”
Again, attorneys have been the unquestioned subject of legislative control by the British Parliament from the reign of Henry III. to the present time, and by the colonial legislature of Virginia, almost from the time of its inauguration until the revolution.
This control has at all times been most absolute, and by the colonial government most arbitrary, and often inconsistent, unjust and even oppressive; prescribing their oaths and how they might be licensed, and admitted to practice, and again expelling the whole profession from the bar;
Indeed, it is questionable whether any class of men contributed more to assert and maintain the powers and privileges of the colonial legislature than the lawyers.
When the people of Virginia by their delegates and representatives in convention assembled, on the 29th day of June, 1776, for reasons set forth in specific acts of misrule by the King, solemnly and unanimously declared, in advance of the Congress, “the government of this country as formerly exercised under the crown of Great Britain, to be totally dissolved,” they ordained and established a constitution and government for the commonwealth, and required all officers and attorneys-at-law to swear to be faithful and true to the commonwealth of Virginia, in lieu of the oaths before required, viz: the oath of allegiance to the King of Great Britain, the oath of supremacy, the oath of abjuration and the test. It might be asked how this ordinance affepted attorneys who had taken the former oaths, and still adhered to the king, and could not, therefore, without doing violence to their feelings and consciences take it? But such considerations were not allowed to contravene the general rule adopted for the general weal, and designed to guard against disloyalty and infidelity. That the exigency of the times demanded and the public safety justified the measure, we must conclude from the tenor of the ordinance itself— no less than the history of the times. Thus then it would seem that in England and Virginia, until the ratification of the Constitution of the United States, attorneys-at-law were subject'to the absolute control of the legislature as respects license, admission to the bar, and expulsion from it, oaths, fees and no fees, duties, conduct and punishment; and
Subsequently to the ratification of the National Constitution, the legislature of Virginia required attorneys to take the oath to support that Constitution, and by chapter 38 of the Code of 1860, every attorney-at-law was prohibited to practice without obtaining a license annually to do so, finder penalty of a fine not less than twenty dollars nor more than 500 dollars; nor could he get such license without first taking the oath therein prescribed, not to pay out bank notes of a less denomination than five dollars.
And again, when the loyal people of Virginia, by their delegates assembled in convention in June, 1861, to consider and secure their safety and liberty, and to that end reorgon-ized their State government, they required all officers to take a prescribed oath of fidelity to the reorgnized government; and the legislature soon after, in 1862, required the same oath to be taken by attorneys.
And however seriously that ordinance and act might affect those who, having embarked in rebellion, or adhered to its cause, or sworn allegiance to its government, yet the necessity and propriety of such a course can no more be questioned than can that pursued by the convention of 1776 in the ordinance of that date. Both were precautionary measures, and salutary means to guard against danger and insure the public safety. They had no other object, and surely it was never contemplated by either body that their respective ordinances were criminal laws, creating crimes, or affixing punishments. So, too, the anti-duelling act, which required the party to swear, not only that he would not fight a duel, &c., but that he had not done so since an antecedent date.
This act was assailed as unconstitutional, and therefore void, but its validity was sustained by the court of Appeals of Virginia, in Leigh’s case, 1 Munford, notwithstanding it was declared by the judges to be penal in its nature.
They were all in some sense war measures, and exhibit on their face the influence of the times.
The legislation of these war times also shows the passage of criminal laws, creating, defining, and punishing crimes and misdemeanors growing out of the state and condition of the country, and especially connected with the rebellion. From all of which it is manifest that when the legislature intended to pass criminal laws on the subject, they did not-hesitate to do it in the plainest and most direct manner— which tends to confirm, what is patent on the face of the legislation relative to oaths, that it was not intended to. operate criminalter, either by creating or punishing offences, but to guard the courts and officers against the supposed dangerous evil influences of disloyalty and infidelity in the officers and advisers. And if any other object can be supposed to have actuated the legislature, it must be deduced from other sources than the context of the acts themselves, and the legal inference of an honest and faithful discharge of duty in the representatives of the people.
The wisdom of the measure I may doubt, but the integrity of it I am not at liberty to question, without good cause.
Hot every law which operates prejudicial to an individual, can he said to he criminal, or punitive, and if retrospective, therefore “ex post facto.” For then every tax law would be punitive, for they would, in that sense, punish
So too, the laws forfeiting real estate, which, without office found or other legal proceeding, forfeit lands by the thousand for non-payment of taxes; and tliat too, not for taxes only to become delinquent in the future, but for taxes delinquent for years before the passage of the forfeiting act. And these laws have been sustained uniformly by the court of appeals of Virginia, and half the land titles of this State are now held under them. And the supreme court of the United States, in/the case of Harvey and others vs. Tyler and others, sustained the same laws of Virginia. Yet no one has ever supposed these laws to be criminal laws, notwithstanding they deprived hundreds of people of all their lands for a default committed by them years and years before the passage of the acts.
So too the provision so general that the exceptions excite surprise, which excludes women and minors and negroes, mulattoes and malavs from voting and holding office. Here was no punishment intended by the exclusion, nor crimes imputed to those excluded. But the effect was no less a deprivation of most serious consequence. Under it, we have seen one race enslaved by the other for two hundred years, which could not have been done had both enjoyed alike the elective franchise and eligibility to office.
So too the provision in the constitution of Virginia, which excludes from the legislature preachers and bank officers— a provision not continued in the constitution of this State, though some think it ought to have been. It has never been supposed that this provision was intended as a punishment, nor to impute unworthiness in either of the classes excluded. On the contrary, both have always been regarded and esteemed among the most honorable and useful, and one the most sacred. The exclusion was from motives of public policy solely, however mistaken it may have been; but the effect was no less a.deprivation in that case than in the
1st. In Virginia, where preachers are excluded from the legislature, preachers are not exempted by law from military duty any more than the other learned professions. In West Virginia, where preachers are not excluded from the legislature, preachers are exempted from military duty in a manner not extended to either of the other learned professions,
2d, It cannot be denied that the reasons on which these test oaths rest, apply as forcibly to preachers as to lawyers, and in most of the other States adopting this policy it has been applied alike to both callings; but in the legislature of this State, where the preachers were more numerous than the lawyers, the policy is applied only to the brethren of the green hag and not of the white cravat,
Again, the act of February 14,1866, recites conduct which other laws makes criminal, but it does not; which other laws punish, hut it does not, at least in the proper sense of that term — and if at all, it is only as an incidental result, consequent on the exercise of a lawful power, and in the execution of a lawful object, Neither does it change the evidence by which crime is established, nor does it contemplate the proof of any crime by the evidence it appeals to; but, on the contrary, it contemplates a state of innocence and fitness for the confidential relations to he exercised, and adopts a rule at once simple and convenient, and the one generally resorted to in such cases, of making the party a witness, not against himself, but in his own favor, if he chooses to testify at all, which lie is at liberty to do, or keep silent, just, as he prefers.
For the legislature, after an officer has been appointed and qualified, and entered upon the duties of his office, to diminish the compensation fixed by law at the time of his acceptance, for a part of his term, and even to take away the office itself, before the expiration of the term, and provide for electing a successor, ivould seem, if possible, a higher stretch of legislative control, and more akin to a
How the act in question must be either a criminal act, or not a criminal act. If the former, it must be so either in making conduct criminal which was not so prior to the passage of the act, or in augmenting the punishment, or in changing the evidence so as to diminish the proof requisite to establish a conviction.
It has been shown that the conduct referred to in the oath prescribed, can be characterized as criminal only by former laws, and not by this act. But it augments no punishment prescribed by former laws, neither does it change the evidence or authorize conviction upon less proof than was lawful before its passage.
And, as a further illustration of the second point, it may be remarked, that if the execution of the culprit bring death or suffering to his wife or children, the latter consequences however inevitable, cannot be charged to be part of the punishment of the law, for the law does not punish the innocent, neither does it let the guilty escape because of the consequences which may thereby befall others.
So, also, if an attorney had been convicted of felony and suffered the sentence of the law, he could not on a proceeding to disbar him and revoke his license, escape the latter consequence by alleging that such would be to punish him twice for the same offense, which the constitution prohibits. And why? Simply because the latter consequence is no part of the punishment tor his crime; nor is the law which authorizes it a criminal law, but a law intended solely to guard the courts against unfit counsellors and advisors— the end, the public safety; the means, the prevention of possible danger.
To withhold or remove a club from the hand of a dangerous man, or who has wielded it to the injury of others, is
It may be said that the past caunot, and ought not, to determine the future of a man’s conduct, else there could be no hope or room for reform; and that this is very true, yet it is universally admitted to be a just ground of precaution against a -recurrence of the evil sought to be guarded against.
From the foregoing considerations, I am led to the conclusion that the act in question is in no proper sense a criminal law, either in purpose or effect; and although, in some sort retrospective, yet not on that account repugnant to the Constitution of the United States or of this State, as an ex post facto law. For it is too well settled by repeated adjudication of the National and State courts, that the legislative power of the States of this Union is competent to the passage of retrospective laws, provided they be not ex post facto — nor impair the obligation of contracts. Calder vs. Bull, 3 Dallas, 386; Hart vs. Lamphire, 3 Pet., 289; Watson vs. Mercer, 10 Pet., 110; Baltimore and Susquehanna Railroad Company vs. Nesbitt, 10 How., 395; Fletcher vs. Peck, 5 Cranch, 138; Ogden vs. Saunders, 12 Wheat 266; Satterlee vs. Mathewson.
And the same point was decided after elaborate argument, in which the authorities were generally reviewed, in this court, in the case of Wyatt vs. Morris, not yet reported.
The only remaining question, therefore, is, whether the act in question impairs the obligation of a contract as claimed by the applicants.
It is claimed that the attorney’s license is a privilege, franchise, office, or immunity of value, and like any other incorporeal hereditament, constituting property in the possessor; that it is acquired by the license, which is claimed to be a contract- between the State and the attorney, and resting on consideration deemed valuable in law, moving from the grantee to the grantor of the license, and consists in the “honest demeanor” and legal attainments of the party licensed.
The office of an attorney-at-law is not for life, as has been
It is with the public feature of this office, which, in Faulkner’s case, was said to be sui generis, that we have now to do.
And here, must be borne in mind, the distinction which marks the boundary broad and deep, between the legislative powers inherent in the people of the States, or their authorized agents, the legislature, to do and undo as they deem the public good requires, and the acts which have been and may be denominated and characterized as contracts. The former can be reached only through the elective franchise, and altered or repealed by changing the legislators that enacted them; but the latter are controlled and restrained by the constitutional provision, which avoids any act that impairs the obligation of a contract. In the case of Crenshaw vs. Slate River Co., 6 Rand., 273, Judge Green said: “A very liberal construction has been given to the clause of the Constitution of the United States, which prohibits any State to pass any lav>' impairing the obligation of contracts. It has, however never been extended to private rights acquired under the operation of the general laws of the State, and without any consideration given, beyond the general purposes of promoting individual interests directly, and the interests of the community incidentally. Nor do I think it can be justly extended to the protection of rights so acquired. The legislature of the State is declared to be a complete legislature, and consequently has all the powers of sovereignty, except so far as they are limited by the Constitution of Virginia and of the United States.”
The same is equally true of West Virginia. Her Constitution vests in the legislature all the legislative power of the State, and consequently all the powers of sovereignty, except so far as limited by the State and Federal Constitutions.
In considering the powers of the Federal and State governments, it must not be forgotten that they are of very different natures — the one delegated; the other original. The one possessing no power not delegated; the other having all power not prohibited by the Constitution. Stratton’s case, 1 W. Ya. And the same view is fully sustained by numerous decisions by the Federal and State courts.
In relation to the liberal construction stated by Judge Green to have been given heretofore to the clause in question of the Federal Constitution, it is proper to remark that the tendency of the judicial mind has since been rather to narrow the rule of construction limiting the legislative powers of the States.
And the Supreme Court of the United States, Judge Daniel delivering the opinion, in the case of Butler vs. Pennsylvania, said: “ In order to determine with accuracy whether this case is within the just scope of the constitutional provision which has thus been invoked, it is proper to carefully consider the character and relative positions of the parties, and nature and objects of the transaction, which it is sought to draw within the influence of that provision. The high conservative power of the Federal government here appealed to is one necessarily involving inquiries of the most delicate character. The States of this Union, consistently with their oi’iginal sovereign capacity, could recognize no power to control either their rights or obligations, beyond their own sense of duty, or the dictates of natural or national law. When, therefore, they have delegated to a common arbiter amongst them, the power to question or
“And the extreme of such an abuse would appear to exist in the arraignment and control over officers and subordinates in the regulation of their internal and exclusive polity ; and over the modes and extent in which that polity should be varied to meet the exigencies of their peculiar condition. Such an abuse would prevent all action in the State governments, or refer modes and details of their action to the tribunals and authorities of the Federal government. These, surely, could never have been the legitimate purposes of the Federal Constitution. The contracts designed to he protected by the tenth .section of the first article of that, instrument arc contracts by which perfect, rights, certain, definite, fixed prkate. rights of property are vested.
“These are clearly distinguishable from measures or engagements by the body politic or State governments for the benefit of all, and from the necessity of the case, and according to universal understanding, to be varied or discontinued as the public good shall require. The selection of officers, who are nothing more than agents for the effectua-tiug of such public purposes, is a matter of public convenience or necessity, and so, too, are the periods for the ap
^ >¡<
“It follows, then, upon principle, that in every perfect or competent government, there must exist a general power to enact and to repeal laws; and to create and change or discontinue the agents designated for the execution of those laws. Such a power is indispensable for the preservation of the body politic, and for the safety of the individuals of the community.”
The office of an attorney-at-law is no loss the creature of the statute than the office of canal commissioner — and the one no less than the other was created for the public good, and not for any private benefit to the officer. The one was intended to manage the public works of internal improvement; the other to aid in the administration of public justice. And I must confess lam unable to perceive (to use the language of Judge Daniel,) what perfect rights, certain, definite, fixed, private rights of property are vested in the one case any more than in the other. And yet the Supreme Court'of the United States, in the case just cited, says: “We have already shown that the appointment to, and the tenure of, an office created for the public use, and the regulation of the salary affixed to such an office, do not fall within the meaning of the section of the constitution relied on by the plaintiffs in error; do not come within the import of the term contracts, or, in other words, the vested private personal rights thereby intended to be protected. They are functions appropriate to that class of powers and obligations by which governments are enabled, and are called on, to foster and promote the general good. Functions, therefore, which governments cannot be presumed to have surrendered, if, indeed, they can under any circumstances be justified in surrendering them.” And precisely upon the’same prinei-
If the office of attorney is one of value to the possessor, so also AA'as the office of canal commissioner. If one has a legal vested right to exercise the functions and perform the duties of the office, if any client would employ him to do so, the other had the pine right, without Avaiting for such contingency. The laws and the license in pursuance thereof, could confer no more perfect righttotheoffice of attorney than the laws and election in pursuance thereof conferred on the canal commissioner. And the character and acquirements requisite for an attorney to obtain a license, can no more be said to be a consideration moving from the attorney to the State, than the character and acquirements requisite to fill the office and discharge the duties of canal commissioner, or of any othey public office, could be said to be a valuable Consideration moving from the officer to the State.
Again: Our laws alike authorize attorneys from all the States and territories of the United States to practice here. How, what consideration can be said to move from them to the State for this privilege, extended no less in this case than in the other,- solely for the public good ? It will scarcely be pretended that one class of attorneys would be protected by the constitutional provision in question and the others not.
It has been said in the argument that the supreme court of the United States has decided this question, and arrived at a conclusion different from that to which I have come, in a case long pending before that court, and such is the newspaper report; but I have not had the benefit of the opinions of the court, nor am I able to perceive, in advance, how they arrived at such conclusion. "While I entertain for that court a high respect, and in all cases where its decision shall be obligatory on this court, I shall bow to its mandate and wait for the wisdom and good sense of the people to correct the error, if I think it wrong; yet, where not so obligatory, I shall exercise the judicial powers vested in me by the people of West Virginia, and pronounce the law as I understand it to be.
» Since writing the above, I have read the opinion of the supreme court, just published in the newspapers, in the case referred to, and also the opinion of the dissenting judges, and after a reconsideration of the subject, I have been unable to arrive at any other conclusion than as above expressed.
But there is a point stated in the argument which may require further consideration, when it shall arise. It does not, however, properly arise in this ease. It is, whether or not the engagement of the attorney with his client, in a particular case, may not be a contract within the meaning of the Constitution, the obligation of which may not be
For the reasons assigned, I am constrained to hold the act of February 14th, 1866, a valid and binding law so long as it remains on the statute book, obligatory no less upon the court than upon the attorneys who come within its' provisions, and as such, should be enforced and obeyed.
The motion of the applicants is, therefore, overruled.
It is admitted by each of the parties to this motion, except Mr. Boggess, that his complicity with the late rebellion renders it impossible for him to take the oath required by the act of the 14th of February, 1866. Mr. Bog-gess alleges that he can take the oath, but declines to do so upon other grounds. None of the applicants except him has been admitted to practice in any of the courts in this State. They produce evidence of having taken the oath of amnesty, and of having received a pardon from the President of the United States, for all offences against the United States.
In support of the motion, it is claimed that the act is unconstitutional, and thererefore void, because :
1. It is an ex post facto law — or a bill of pains and penalties.
2. The alternative proposition is contended for, namely,
3. If it be construed to have a retrospective operation, it is not only ex post facto, but impairs the obligation of contracts, and its effect is to deprive a party of property without due process of law.
4. It violates the principle that innocence is to be presumed until guilt is legally proven.
5. Thatthe pardon of the executive relieves the party from all penalties which might, (but for pardon), have been incurred, and inflicted, for having done the things mentioned in the oath.
The court is then called upon to perform a most grave and delicate duty — namely, to inquire whether the co-ordinate branch of the State government has exceeded its power, so as to require the interference of the court; and this in legislating for the protection of the liberties of the State, and of the welfare of the people against the demoralizing influences of the late rebellion.
No principle is more familiar in the construction of statutes than this : — that every presumption is in favor of their constitutionality; and it is only when all other interpretations fail, and in the last resort that the court will decide against their constitutional validity.
I hold it also to be clear, beyond dispute, that as it is a paramount duty of the legislature to watch the bearings of the rebellion, its theories and sentiments, its influences and tendecies upon the interests of the State, and the welfare of the people, with an earnest vigilance, and to wield legislative powers accordingly; so it is the duty of courts, and more especially of this court — as that of final judgment — in its sphere to assist the legislature, by a cordial co-operation, guarding against contravention of the fundamental law; but applying the weight of its character and the vigor of its arm,
It would be a state of things which the good and wise could not fail to deprecate, if in times of imminent public danger, imposing upon the law-making power, extraordinary responsibilities and pressing upon it extreme demands, its co-ordinate and judicial branch were to be found employed in a system of hypercriticism and false embarrassment, and not in an efficient enforcement of the law in all cases, where not clearly found to be in conflict with the constitution.
It is proper in this connection to remark that the considerations which have been urged upon the court by the several applicants, based upon the anticipated hardships that will, or may, result to them, and to others of the same class, should this act be sustained, are appeals which should have no effect; and upon me personally will have no influence. As appeals intended to awaken the sympathy of judges and swerve them from the faithful discharge of duty, they are out of place.
I am constrained further to say, that however painful to me may be the consciousness of the effect which the act, if sustained, may have upon the private interests of the applicants, and of others in their condition, I am not at liberty, either as a good citizen or as a faithful judge to exclude from consideration the patent fact, that each of the applicants,but one, was an earnest participator in, and an abettor of, the rebellion; that the rebellion was treason in its worst and least mitigated form; that they sinned against the light; not led astray themselves, but leading others astray, that deliberately and with a full estimate of chances, they staked their private interests upon the result; that their aim was the destruction of the Union, involving, of necessity the destruction of each of its parts ; that they invited and accepted the risks which they voluntarily incurred ; and it does not lie in their mouths to deprecate a law which their misdeeds have, in the judgment of the legislature necessitated. Uor am I at liberty to exclude from view the other fact that the State
Speaking for myself as an individual member of the court, I regard it as my duty to notice the criticisms which several of the applicants have quite freely bestowed upon the spirit of the statute — the animus of the legislature in passing it,— and upon several of the members who took part in the debate. I am unable to see in the statute, in that body, or in any of the members concerned in the debate, either the spirit of presumption, malignity or the indications of bad faith, which have been attached to them.
In this respect the applicants seem to forget that they were heard upon this application by the grace of the court, and that if their aspersions were allowed to pass without rebuke their impropriety was none the less felt. The court must be supposed to be alive to a proper sense of self-respect, and to that surrounding respect which is essential to its dignity and usefulness. Its ear is not open to be used for uncalled for criticisms upon the motives of the legislature, or the conduct of its members; especially in view of the fact that they emanated from those who stood indictable for high treason against the State, and were enabled to appear here through mere executive forbearance.
In determining the validity of a statute, it is not for the judiciary to inquire whether the act in question is wise or unwise; nor whether there was a necessity for the statute at the time of its passage. These are considerations resting solely with the legislature, whose power in such cases is limited only by the Constitution. It is by this instrument alone that their acts are to be tested, and it would be subversive of all just principles, if courts were to erect any other standard.
Even if it were conceded that the act in question is manifestly tyrannical and oppressive, yet if it is not repugnant to the organic law, it then falls within the pale of rightful legislative action, and the judiciary is solemnly bound to declare its validity. So on the other hand, however salutary
In arriving at the intent of the legislature, the scope and true meaning of this law; much aid will be afforded by a knowledge of the events, shortly preceding, and of the facts existing at the time the act was passed. It is a well known fact that, throughout the late disaffected States, as well as in Virginia, that facilities for a general diffusion of knowledge were limited and imperfect; so that the masses of the people were greatly dependent upon the educated few for information touching questions of State interest and public policy. The character of social organization was such that the bar throughout the South gave tone to public sentiments, and complexion to political theories.
Lawyers as a class stood deservedly high in popular confidence. The license of each to practice his profession was a credential of honor, loyalty, and integrity emanating from a source ever held in veneration. Upon all questions of private and public concern, theii-opinions commanded the highest respect, and stamped their impress on every important enterprise. Hence they were the manufacturers of public opinion and constituted within themselves an element,powerful for good or evil. Their relations to society, coupled with professional privileges, of necessity, gave them vast influence in addition to the advantages which learning, eloquence, and mental discipline may ever successfully wield over an opponent destitute of these qualifications. Who can but lament that so great a number of them forgot their sacred obligations in the time of the country’s greatest need, and gave countenance to her destroyers; thatthe light of their learning, their social position, their strong hold on public confidence, were but agencies employed with fatal effect in alien
From our knowledge of events so recent, can it be doubted, that if, at any period, from the beginning to the close of the war, the influence of this class could have been suddenly destroyed, that from that instant the prestige of the rebellion would have vanished ? I do not hesitate to say that the rebel ship of State, deprived of this element, would have been as powerless for harm as would the mighty war vessel stripped of her armament, and dismantled.
Here, then, we see a very large majority of a certain class of persons on whom the State had conferred peculiar privileges, availing themselves of these very privileges to destroy the existence of the republic itself. It is a notorious fact, that the overthrow and destruction of the identical courts in which these applicants nowr desire to practice, were, among other things, contemplated, planned and partially effected by the organization to which they belonged, and with which they co-operated. Fortunately for mankind and the cause of liberty everywhere, the rebellion was crushed and its purposes defeated.
Lawyers from our own State, who wTent voluntarily away, and for years aided this unholy conspiracy, returned to their homes, and, as of right, claimed their former professional privileges, which they first abused, and then abandoned.
All may foresee the consequences that must follow if this
The purity of human laws, the enjoyment of human rights, the perpetuity of civilization itself, depend upon ever keeping prominent and well defined, the great distinctions between right and wrong, virtue and vice; and also upon cultivating in the public mind an abhorrence for all forcible resistance to the laws. Every effort, then, to break down these distinctions is a public evil; and social safety requires that those for whose interest it is to destroy them should be restrained in their attempts to do so. Otherwise, patriotism and loyalty cease to be virtues, and hereafter criminals may expect exemption from punishment and disgrace in proportion to the enormity of their crimes. These and kindred considerations were doubtless what actuated the legislature in the enactment of this statute. The question now recurs, does this law violate any provisions of the Constitution, either State or Federal ?
It is claimed that the law is penal, and not remedial only, and if construed to operate retrospectively, comes within the definition of an ex post facto law, and is consequently void, for repugnance to the 10th section of article 1st of the Federal Constitution.
In the case of Calder and wife vs. Bull, 3d Dallas, 386, Justice Chase defines what he considers ex post facto laws within the constitutional prohibition.
1. Every law that makes an action done before the passage of the law, and which was innocent when done, criminal, and punishes such action.
2. Every law that aggravates a crime, or makes it greater than when committed.
3. Every law that changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed.
The other prohibitions in the same section, namely, not to “ iuake anything hut gold and silver coin a tender in payment of debts,” and not to “ pass any law impairing the obligations of contracts,” were inserted to secure private, •ights.
It is unquestionable then, that retrospective laws aflect-ng private rights, merely, are not ex post facto, and consequently are not forbidden ; while retrospective laws which mpair aud take away vested rights, may be oppressive, and ire sometimes unjust; they may, nevertheless,be strictly constitutional.
(Thorp vs. The Rutland and Burlington Railroad Company, 27 Vermont Reports, and cases there cited. Satterlee vs. Matthewson, 2d Peters, 280.)
Unless it can be clearly shown, then, that the intention of the legislature in passing the act of Feb. 14th, was either, First, to make some innocent action, done by the attorney previous to that date, criminal, and to inflict a punishment for said action by depriving him of the right to practice in the courts; or, Second, to make the crimes therein mentioned of greater magnitude than they were when committed ; or, Third, to change the punishment, and to inflict a greater punishment than the law annexed to the crime when committed; or, Fourth to alter the legal rulés of evidence, so that less or different testimony than the law required at the time of the commission of the offense, might be received to convict the offender — unless, Isay it was the intention of the legislature to do, by this act, aud in fact did do some one or more of the four things above specified, then the act is not
The act in question is in the words following : “No attorney at law shall be allowed to practice iu any court, or before any justice, or board of supervisors, of this State after the passage of this act, until ho shall take in the court in which he proposes to practice, in addition to the oaths now required by law, the following oath :
“ I, A. 33. do solemnly swear that I have not since the 20th day of June, 1863, borne arms against the United States, nor against the State of West Virginia; that I have voluntarily given no aid or comfort to persons engaged in armed hostility thereto bj' countenancing, counselling 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 or the State of West Virginia; 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.”
I fail to see anything iu this law that contemplates a. punishment for any past act whatever, or for any of the things mentioned in the oath itself.
It declares no action to be criminal which was innocent when it was done.
It makes no crime greater than it was before the passage of the law.
It neither changes a punishment nor inflicts a greater one; nor does it alter the rules of evidence in any respect, in order to convict an offender ; therefore, in no proper legal sense can the law be regarded as ex post fado, and for the same reasons it possesses none of the requisites necessary to constitute it a bill of pains and penalties.
While the statute, if sustained, may operate an inconvenience, and even a hardship to these applicants, and others similarly situated, it is nevertheless a remedial and not a penal statute. It is manifestly retrospective in some of its bearings,
I think that by no fair interpretation can the words employed be made to have an exclusive prospective operation. The expression, “Ho attorney at law,” has the same sig-nificatioii as not any attorney at laic. In other w7ords the effect of this statute is, to require erm/ attorney at law', regardless of his former lights and privileges, to take the oath therein prescribed, — if he did not take it he could not be allowed to practice. A different construction would render the law' totally ineffectual as a remedy for the evils which called it. into existence. These evils have already been adverted to. The evident intention of the law-maker was to guard the public against a class of persons who occupy a semi-official position, clothed with privileges not enjoyed by the private citizen. Tor by the very nature of the relation of attorney and client, the latter is compelled to entrust the former with the most sacred interests, affecting property, character, and even life itself; having no assurance for the attorney’s fidelity, other than his license to practice — which is a certificate by the court that its possessor is a person of moral and intellectual worth, and of that high character for honor and integrity that entitles him to the confidence of all needing professional aid.
The legislature has thought it dangerous to the wmlfare of society, to continue to the attorney his'privileges as such, who, by voluntary complicity with the rebellion, is unable to take the oath prescribed by the act in question. It is a statute. — not to punish the attorney — but to protect society, and to keep free from reproach the profession of which he is a member. This being then a remedial act is not unconstitutional because of its retrospective operation. — (Com. vs. Hewett, 2 H. & M. 181.)
Neither of the applicants has been licensed in this State as an attorney, and there is no proof of either having been licensed in another State. Whatever may be our individual and unofficial knowledge that each has been a practicing attorney in the courts of Virginia, this knowledge is not proof —we cannot take judicial notice of the fact — and so far as any fact under the motion is required to invoke a construction of the constitutional merits of the statute, it must be proved.
It is the duty of the court, in a matter of such gravit}' to proceed with strictness. Although the Attorney General has confined himself to the discussion of the validity of the act of February 14th, 1866, I do not understand him as having conceded this proof except argumentatively. The applicants, therefore, severally stand as-unlicensed, and, to be admitted to practice within this State, must comply with §1, or §2, of chapter 164, of the Code, page,699 — as the case may be — in order to qualify themselves to be sworn; whether the proper oath be that prescribed in §3, same chapter, only, oi- this and the oath prescribed in the act of February 14th, 1866. Then if the court was to act strictly upon the proofs before it, with propriety it might be said there is nothing presented in this application which raises a construction of the last named act. But let us assme that each of the applicants has produced under his motion, a license duly issued to him in Virginia, to practice in her courts. The license is a license to practice in the courts of Virginia, and, by its necessary import, can of itself have no extra territorial operation.
As the territory of the State might from time to time be enlarged, or by the formation of new States be contracted, so the territory covered by a license would be expanded or contracted. A different construction would givetothelicense ; n operation broader than its terms, and enable the State, of Virginia to impose upon any new State, thereafter formed
These applicants, then, stand here each upon his foreign license, as he would in the court of any other of the States, besides Virginia, whére he might, according to the statutory practice, apply upon the basis of the license for admission to the bar of such other States. Under the code of this State, page 699, §2, the foreign license merely relieves him, upon the principle of international, or inter-State courtesy, from passing through, or complying with, §1, same page, but advances him no further.
In such case, he must then take, in order to consummate his membership, the attorney’s oath, prior to February 14th, 1866, that was prescribed in §3, same page. By the act of February 14th, 1866, it is so far modified that the oath prescribed by the latter must be taken in addition. Therefore, these applicants, having as yet no license under this state, having at most but foreign licenses, which they may employ to obtain admission to the bar of this State, being at this point no farther advanced to that end, than if they based their application upon the certificate of character and attainment prescribed by said §1, p. 699 of' the Code, and Unable to pracr tice, till they shall have taken the oath or oaths prescribed and in force at the time of their application, they stand, not as attorneys, but as candidates for original admission as attorneys, and their admission toill be complete only upon taking the several oaths now in force, and, therefore, that of the act in question, as well.
Concedingthat a licensegranted by this State, orits authority, vests a right as by contract; that admission to practice under a foreign lieeuse is equivalent to a license obtained within the State, and that* if they had severally received such licenses, or obtained admission, upon foreign ones before the passage of this act, and that the act would be invalid, as tending to disturb them, still, the applicants have no such licenses ; therefore, no vested rights to be disturbed.
They stand as candidates idiom the State will admit to her pro
To present this ease most strongly for the applicant under this head, that is, the assumption that each has produced a foreign license, an important element has been thus far laid aside. The 2d section of the Code (page 699) permitting the candidate to he admitted upon the proof of a foreign license, requires that this proof be accompanied with proof that he is — (using the present tense) — a practicing attorney under that license. The section cannot apply unless it applies as it is — each provision being allowed its appropriate effect. There is no proof, in either of the present cases, that the applicant is a practicing attorney in Virginia under his license. Hence, he is not in a condition — has not gone far enough to apply for the oath requisite to he taken, so as to give to him admission to this bar, whatever the oath may he. Therefore no fact yet appears under either application, calling for a construction of the statute of February 14, 1866, except, possibly, the application of Mr. Boggess.
Let it, however, be conceded, for the sake of the argument, that section 2d of the Code, page 699, permitting admission upon a foreign license, under which the licensee is “ practicing” in the foreign State, has been fully complied with in the proof, and that each applicant stands as if before the passage of the act of February 14, 1866, he were a regular! y licensed attorney within the State, how does the case then stand ?
This is putting the ease most strongly in favor of the applicant, and raises directly and fully the question as to the constitutional validity of the act.
• The principle of the act is involved in the power, and flows from the duty of the State to perfect itself, that is, the welfare of the people. It proceeds upon the distinction between laws passed to punish for offences, in order to prevent their repetition, and laws passed to protect public offices, franchise, and privileges from abuse by falling into corrupt hands. The legislature may not pass laws in the form, or with the
The State is organized for the public as well as for individual good. While it may not violate the constitutional guards that are thrown around the latter, it may not neglect the demands of the former. Ail public grants are to be construed strictly. In the absence of words to the contrary, the State is not, in any grant, to be presumed to part with any of the power inherent in it, for the protection of the common welfare.
In respect to grants in the form of public office, of privileges in the nature of offices, or of any privileges, the exercise of which directly and necessarily bear upon the moral interests of the public, the legislature cannot part with this power, inherent and supreme in it, to preserve the general good, even if it would.
In this sense it may be said, that the power of the State, as to the last named grant,is inexhaustible. The case of the proprietors of the Charles River Bridge vs. Warren Bridge, and others, 11 Pet. 420, illustrates in part, but with great force-, this distinction.
In the same view the other cases cited in the syllabus of this one may be referred to.
Let us now apply this distinction to the present motions, bear in mind that in each case cited upon the argument, the contract, the obligation of which the statute was held to impair, was a contract with individuals, or a grant as of a ferry, toll, or right of way for a specific purpose or time, and where the effect of the statute was a clear interference, interrupting or preventing the enjoyment of the contract or grant, before the latter had expired as to time, or its purpose had been accomplished : and no case of a different character has been brought to the attention of the court.
The profession, organized as it is in the civil, English and American systems of law, became of this necessity a recognized institution. The attorney’s participation in the administration of justice is constant, his influence subtle and potent. The necessity under which the profession is organized and maintained, involves the further necessity of a continuous and unlimited control over it by the State; otherwise, a power or element in the administration of justice, always great, would become, at once, irresponsible. It would be singular, then, if the State has not retained over its legal profession this continuous control, especially in case of practitioners under foreign licenses. Chapter 164 of the Code, page 699, contains, aside from the act of February 14th, 1866, all the provisions for the admission of attorneys to its courts.
The attorney is purely a creature of the statute ; and the Code contains bo hint of any tenure of attorneyship beyond one at will; and upon the principle of the authorities above referred to, and upon what strikes me as an obvious and paramount rule of public policy, no other tenure can be implied. The act of the Colonial Assembly, in the year 1645, expelling all attorneys and forbidding them to practice, (I. Hen., Stat. 305,) assumed the power of the Colonial'Government, to abolish the then existing attorneys of the Colony. From that time down to the first Revised Code, page 267, sections 1-14* adopted in 1819, the Colonial* and subsequently the
The act of 1819 remained in force until the adoption of the Code in 1860, when its provisions above referred to were Incorporated verbatim, into the Code. (Chapter 164.)
The provisions contained in this chapter for regulating the conduct for attorneys, if to he regarded as restrictive of the authority to be used against them, are restrictions upon the authority of the court alone, notin anywise limiting legislative authority <srev the subject. Whether they are in fact restrictions, will be considered hereafter.
The license granted under the Commonwealth, and this State, have simply authorized the licensees to practice in the courts of the State, being silent as to the tenure of attorney-ship, conforming in this to the statute, and conveying in this particular the same construction. The first general statute providing for appointment of attorneys, or (as I may say,) for the organization of the legal profession in England, is Ihe 4th Henry IV, chapter 16, in the year 1402, (IStatat large, page 543,) authorizing the judge to appoint attorneys on proof of proper character and attainments, expressed in these words:
“ Also for great damage and mischiefs which have ensued before this time, to divers persons of the realm, by the great ¡numbers of attorneys not knowing nor learned in the law as they were wont to be before this time, it Is ordained and established that all attorneys shall be examined by the j nstices, and by their directions .their names he put in a roll, and suck as he good and virtuous, and of good fame, shall he received and sworn well and truly to serve in their offices, * *. and other attorneys shall be put out by the discretion of said justices; * * * and if any such attorney be hereafter notoriously found in default, of record or otherwise, he shall foreswear the court, and shall never after be received to make, any suit in any court of the King;” the act being silent as to tenure.
In New Jersey, 1 Zabriskie, 346, State vs. Eagle, the usual qualification of character and attainments are required, tho proof of them being by certificate, and in that ease, the court held that it could go behind the certificate of character, as it may have been given upon misrepresentation, and ordered rule to issue accordingly. It is clear that under section 1, chapter 164, of the Code, the judges might likewise go behind the certificate. So that, in respect to the power to admit or exclude on original application, the power of our courts, under this section of the Code, is in accordance with the general practice.
lias the right to dismiss for misconduct, or loss of character, been restricted by the Code ? Every presumption is the other way. The only sections relating to the point are §§ 5 and 6. Section 5 would seem to be confined to eases of
In this view, the section enlarges the power of the court in cases of felon}-' — certainly does not restrict it. Section 6, in cases of malpractice, enlarges the power of the court by authorizing it, in its discretion, to submit the issue to a jury.
All other cases, besides those specified in §§5 and 6 as felonies, where there has been no conviction or misdemeanor, other than for malpractice, are left as at common law.
The court on suggestion that either of the applicants has been in complicity with the rebellion, might, under a rule., require him to purge himself on oath, whether an attorney or a candidate for attorneyship, — Jint subject to counter-proof.
In view of the wide-spread influence of the rebellion, the court, upon probable ground of suspicion that he had been in complicity with it, might properly require every party asking for admission to the bar, or claiming to return to practice, after an absence from it during the war, to show cause under the usual rule.
Now the legislature may, under the Constitution, regulate the powers of the courts, diminish or enlarge them. Hence, in the exercise of its reserved authority, may do what courts in the exercise of their common law powers, as defined by their common law practice, or in the exercise of their statutory powers cannot do. Clearly it may do as much. It has done less, through the medium of a test oath, the act of February 14th, 1866, as a mere summary proceeding, to test the fitness of the party, without the formality of a rule to show cause, — giving to the party an opportunity to purge himself, not subjecting him to counter-proofand prudently applying to all applicants to meet the exigency of the ease.
The statute is not even retrospective, except in the sense
The proposition, so confidently and constantly advanced upon the argument, that the test oath can no more be applied to a lawyer, than it can be to a farmer or mechanic, is merely specious. Whether such an oath would he applied to a farmer or mechanic, as a condition of continuing his vocation, we are not called upon to decide.
It is sufficient to say that their right to labor in their vocation is founded, not upon a license but upon citizenship ; that the lawyer’s is founded, not upon citizenship, but a license: and that so peculiar as to leave the control of it continuously and supremely in the State. I am clear that the act of February 14th, 1866, does not impair the obligation of contracts.
If the: objection that the act February 14th, 1866, was a bill of attainder, or an act in the nature of abill of pains and penalties, an ex 'post facto law, or a law compelling a party to be a witness against himself — or a law presuming guilt, instead of innocence — have at any time seemed to require a more formal notice, they are now, in my judgment, answered. It is sufficient to add, that the act neither seeks nor attempts a corruption of blood — has, therefore, not even the semblance of a bill of attainder. That the definition of an ex ■post fado law is familiar, that every ease cited is one wherein a prosecution was founded upon a law retroactively creating a crimb, or changing the punishment or proof of it; and, betwefeh such a law and the pi’ésent, there is no resemblance.
That the act in no sense makes the party a witness against himself; — if he refuses the oath, he does not testify; — if he accepts it, he is a witness for himself. That it does mot presume guilt in advance — it impliedly charges it. The rule to show cause — every civil proceeding in tort, — every criminal proceeding, does the same.
The application of those parties who introduce in evidence, a certificate of special pardon, granted by the President of the. United States,-and reciting that it was granted for the
The certificate so produced is an admission that the party was guilty of the offences pardoned. These parties stand therefore as exempted from the penalties of treason by7 them committed against the United States ; audit is not necessary to say whether they7 are still amenable to this State for the same act so far as it was an offence against the laws of this State — because neither the oath in question, nor the consequent deprivation resulting to the party who is unable to take it, is in the nature of a penalty for any7 offence, whether pardoned or unpardoned, therefore the question is not affected by conceding that they7 are exempt from the ‘penalties in both cases. Although pardon of the Executive may work a “complete oblivion of the past,” so that the crime pardoned, by fiction of law has no legal existmee, yet it is historically true, nevertheless, and the parties stand by their moral turpitude of the crime. They7 have not the “ honest demeanor,” required by7 the Code. (Sec. 1, chap. 164.)
This is conclusive of unfitness to practice in the courts of this State. The evidence is volunteered by the applicants, and in my judgment, there is no alternative but to exclude them.
The law on the point is clear. 2 Petersdorf, 525, Frost’s case; 2 Petersdorf, 607, Brownell’s case; 1 Chitty’s criminal law, 811; Cowper, 820, 6 East, 126, 143; 4 Burrows, 2,109, Berry’s case; 2 Smith, 205, Southerton’s case; 1 Chitty’s Re
This motion as is well known, was argued at the last term of this court, when it was insisted that similar motions were then pending before the Supreme Court of the United States, and that the opinion of the Supreme Judges, although not authoritatively announced, was in accordance with the principles contended for by the applicants in this case. In view of the importance of the question involved, and in hopes of deriving additional light from that decision, this case has been held under consideration since the last term. Since the foregoing opinion was prepared we have been furnished with a newspaper abstract of the decision rendered by the Supreme Court of the United States, as well as the opinion of its four dissenting Judges. After a careful examination of that decision as furnished, I am constrained to adhere to the opinion already advanced.
Application denied.
