In re Dorsey

7 Port. 293 | Ala. | 1838

GOLDTHWAITE, J. — I

have given lo this subject the consideration demanded by its importance as a constitutional question, and am convinced, that one part of the oath imposed by the act of Assembly, usually called the duelling act, is inhibited by the constitution. As the oath is not divisible, and is in part unwarranted by the fundamental law, in my opinion, we ought not to require it to be administered.

The act was passed on the seventh day of January, eighteen hundred and twenty-six, and requires all members of the General fissem ly, all officers and public functionaries, elected or appointed under the constitution or laws of the State, and ail counsellors and attorneys at law, before they enter on the discharge of the duties of their stations or offices, to take and subscribe the following oath : “I do solemnly swear that I have neither directly nor indirectly given, accepted, or knowingly carried a challenge, In writing or otherwise, to any person or persons, (being a citizen of this State,) to fight in single combat or otherwise, with any deadly weapon, either in or out of this State, or aided or abetted in the same, since the first day of January, one thousand eight hundred and twenty-six; and that i will neither directly nor indirectly, give accept, or knowiugly carry a challenge in any manner whatsoever, -to any person or persons, (being a citizen of this State,) to fight in single combat or otherwise, with any deadly weapon, either in or out of this State, or in any manner aid or abet the same, during tlie time for which 1 am elected, or during the time of my continuance in office, or during the time of my continuance in the discharge of any public function.” In another section, this oath is modified with respect to persons who may remove into the State, or become citizens after the enactment, and requires such to swear that they have not committed the acts specified since their removal into the State, or since they became citizens. If any member of the General Assembly, officer, or public furutiouary. shall refuse to take the oath, the act of assembly provides that his seat, office or function, shall be vacated, and idled in the same manner as if he had resigned; and no counsellor or attorney, who shall fail or refuse to take the oath, shall be permitted to practice in any court of the State.

This, oath, if taken, has evidently a two-fold operation — retrospective to the first day of January, eighteen hundred and twenty-six — prospective, as to all future time during which the individual taking it shall continue to discharge any public function. The object of the prospective part of the oath, is to impose on the individual, a solemn obligation to refrain from the commission of the acts specified, so long as he continues in any public station. It would seem to be the object of the retrospective portion of the oath, to exclude from office all who had committed any of the offences named, but as this is not evident, it will be proper to examine all the aspects in which it can be presented. It may have been intended by the general assembly to insist on the oath, as a qualification for office or station. If intended to exclude from office, or to disqualify, in consequence of the commission of any of the acts named, then, it is dear that a mean is provided by which this disqualification is enforced.

Whichever of these intentions operated on the general assembly to pass this act, is immaterial, as both lead to the same legal consequences.

Qualification and disqualification, are not unfrequently used in common parlance, as convertable terms; or rather disqualification is oftentimes used to express the absence of qua]mention : tints, it is sometimes said that a person is disqualified an an elector, because he is not a citizen : o: that a juror i' . Urn;.T'cd by not being a freeholder or householder. 1 ..ousTm it essential, to ascertain with some degree of precision, what meaning ought to be attached to these terms, and. as the constitution, in many eases, requires or prescribes qualifications, and in others permits of disqualifications, it will afford an excellent guide to arrive at the true sense in which these terms are to be understood, flic fifth section, article three, prescribes the qualini at ions for an elector: he is to be a white male person, twenty-one years of age or upwards-a citizen of the United Eta tes. and shall have resided in t e State one year, and in the county or town in which he votes, three months. &c.

Section four, article three, prescribes the qualifications of a representative, lie is to be a white man, a citizen of the United States, an inhabitant of the State for, two years next preceding his election, and the last year thereof, a resident of the county, &e. for which he shall be chosen, and shall be twenty-one years old.

Section twelve, aiticle three, prescribes the additional qualification for the office of Senator, that the individual chosen shall be twenty-seven years of age.

The Governor must be at least thirty years of age— Section four, article four.

Disqualifications are declared to arise under the following circumstances: í! Ko person shall hold the office of governor, or any other office or commission, civil or military, either in this State, or under any State, or the United States, or any other power, at one and the same time — Section twenty-two, article four.

A sheriff shall not be eligible to serve either as piinci-pal or deputy, for the three years succeeding his term of office — Section twenty-four, article four.

No person, who shall have attained the age of seventy years, shall be appointed to, or continue in the office of judge — Section fourteen, article live.

The general assembly is invested with the discretionary power to pass penal laws to suppress the evil practice of duelling, extending to disqualification from office, and is required to pass laws to exclude from office, from suffrage, and from serving as jurors, persons convicted of bribery, forgery, perjury, or other high crimes and misdemeanors — Sections three, four and five, of article six.

These extracts from the constitution, show nearly all the cases in which qualification is prescribed, or disqualification permitted or enjoined, and from them I deduce these definitions:

1st. Qualification is some state or condition'possessed or attainable by each citizen of the State;

2d. Disqualification is the taking away of the state or condition previously 'possessed, or the rendering it impossible to acquire the same, and can only arise from the commission of some offence by which qualification is destroyed, or by the attainment of some other state or condition incompatible with it. It is obvious, if no fixed and definite meaning is to be attached to these terms, that language may be employed to prescribe qualifications which would produce numerous classes of disqualifications: but if the definitions given be correct, then it becomes easy to determine, independent of the expressions used, whether the state or condition is one of q.ialification, or its reverse. If every citizen of ¡ho Stain can possess or attain it, it is clearly a qualification ; but if it is impossible to any, an actual disqualification immediately attaches, to such as can by no possibility comply with the requisitions. The retrospective part of this oath, as it can only be taken by one who is innocent, effectually disqualifies all those who are guilty, and as this state of innocence cannot be regained by them, it is equivalent to a perpetual exclusion from office.

The prospective part of this oath requires a condition which all can comply with, and is therefore strictly a qualification, within the sense of the term as ascertained from the constitution.

Before proceeding to an examination of the constitution, to determine if such a qualification can be lawfully required, or such a disqualification created, and enforced in the manner contemplated by this act, it is not ira, roper to declare, that I consider the declaration of rights, as the governing and controlling part of the constitution; and with reference to this, are all its general provisions to be expounded, and their operation extended or restrained. The declaration itself, is nothing more than an enumeration of certain rights, which are expressly retained and excepted out of the powers granted; but as it was impossible, in the nature of things, to provide for every case of exception, — a general declaration was added, that the particular enumeration should not be construed to disparage or deny others retained by the people. What those other rights are, which are thus reserved, may be readily ascertained by a recurrence to the preamble to the declaration of rights. The object to be attained by the people, whoa assembled in convention, was not the formation of a mere govern meat, because such might, and in many cases would lie, arbitrary and tyrannical, although democratic in its form It was to form a government with dearly defined and lUnilad powers, in order that the general, great and essential principles of liberty and free govern incut might be recog-nised and established.” The general assembly is not expressly prohibited from enacting laws requiring-political test oaths to be taken, nor from excluding some of its citixens from the pursuit of certain trades or avocations, yet no one would contend that any such laws could be operative, because it is evident that they are adverse to the principles of liberty and free government. With these general views of the imtmmcnt, Í yield my entire concurrence to the pos.tion laid down by the Chief Justice in the case of the State vs McDonald, (1 For. 4C5,) that our legislature looks not to the loastitution for a grant of powers, but exercises all such as are compatible with the social compact, unless restrained by express inhibition or clear implication.

The first section of the declaration of rights, announces the great principle which is the distinctive feature of our government, and which makes it to differ from all others of ancient or modern times: ‘-.All freemen, when they form a social compact, are equal in rights, and no man, or set of men, are entitled to exclusive separate public emoluments or privileges, but in consideration of public services.” This is no empty parade of words: it

means, and was intended to gn.&vwiice to each citizen, all the rights or privileges which any oilier citizen can enjoy or possess. Thus, every cue has the same right to aspire to office, or to pursue any avocation of business or pleasure, which any other can. As this general equality is thus expressly asserted and guaranteed as one of the fundamental rights of each citizen, it would seem to be clear, that the power to destroy this equality must he expressly given, or arise by dear implication, or it can have no legal existence. Such, indeed, we find to be the case, in the instances which have beau quoted from the constitution. Wherever no qualification is prescribed as a condition for office or station, the door isopen to every citizen ; and wherever power is given to exclude, it specifies, with much precision, the cases in which it may he exercised. This view of the case, does not detract from the legislative power, to prescribe qualifications to be possessed, before any avocation or business can be pursued, so long as the qualifications can be attained by all. If otherwise, if any citizen is disqualified from the pursuit of any avocation or business, which any other citizen can pursue, an immediate and direct inequality is produced, which, to be legal, must, in my opinion, find its warrant in some express grant of power. It will be conceded, that in all the cases where qualifications are prescribed by the constitution, none other can be imposed by law: thus, an elector, otherwise qualified, cannot he required to possess a freehold or other estate. As the constitution is silent with respect to the pursuits of bu_ siness or pleasure, the general assembly has the power to prescribe any qualifications, not inconsistent with the rule, that equality of right must he preserved : in other words, that any citizen may lawfully do what is permitted to any other. It rests with the legislative power, to prescribe the conditions on which any avocation or calling shall be pursued, so that the door is closed to none; and there seems to be no other limit to their discretion, than the one which arises from the first section of the declaration of rights, before adverted to. The constitution, in its general provisions, attempts to define the powers of those entrusted with the management of the affairs of the body politic, and is emphatically a collection of rules for the officers of the State: It is alone in the declaration of rights, that the people at large are guarded and protected; and we look in vain to any other source, to ascertain the rights secured to the citizen.

The general equality of all citizens having been declared, and in effect, guaranteed, it becomes necessary to enquire, if the constitution has left it to conjecture, in What cases this equality can be destroyed. If the instrument was entirely silent, I should doubt whether any power existed, after the express guarantee before spoken of, to legislate on this subject; but when I find cases enumerated, in which this equality is taken away, or au-thorised to be destroyed, I am bound to conclude, that the power must be exercised alone in the manner prescribed or permitted. If it is admitted that the general assembly, without an express grant of power, can disqualify a citizen from pursuing the avocation of a planter or a merchant, a physician or a teacher, a mechanic or a lawyer — and cannot disqualify him for holding or aspiring to office, except in the cases permitted or prescribed, then our government presents the singular anomaly of having been instituted for the protection and preservation of the rights of the people, yet guarding effectually nothing but the right to hold or aspire to office. In my opinion, this admission cannot be made, and wc must look to the constitution for an affirmative grant of power to disqualify, which, if not there found, cannot be said to exist.

The clauses of the constitution which permit or prescribe cases of disqualification, are the following: “ The general assembly shall have power to pass such penal laws to suppress the evil practice of duelling, extending to disqualification from office, or the tenure thereof, as they may deem expedient’’—Section three, article six.

“Every person shall be disqualified from holding any office, or place of honor or profit, under the authority of the State, who shall be convicted of having given or offered any bribe to procure his election or appointment” —Section four, article six.

“Laws shall be made to exclude from office, from suffrage, and from serving as jurors, those who shall hereafter be convicted of bribery, perjury, forgery, or other high crimes or misdemeanors” — Section five, article six.

The intention of the convention in inserting the third section, and its meaning, are easily ascertained by the ordinary rules of construction. The first section of the sixth article prescribes an oath of office, which is required to be taken by all members of the general assembly, and all officers, executive and judicial. Standing alone, this might impliedly restrict the legislative power from imposing any additional obligation; but the subsequent introduction of the thud section, seems to me to annul this implied restriction, and invests the general assembly with authority, by law, to impose an additional oath, if, in their discretion, they deem it a proper means to suppress the evil practice of d idling. Both sections contain affirmative provisions, and must he so construed as to give the fullest effect to each, not inconsistent with the other. If the third section was omitted, the fourth and fifth sections would have ascertained the only offences, of which the conviction for, would disqualify from office; and as duelling is not among the enumerated offences, and as it might be questioned whether the mere sending or accepting a challenge to fight a duel, could be included within the designation of 1 other high crimes and misdemeanors/ it was essential to confer the power to exclude from office, for this and similar causes, by an express provision. Again, the general assembly is required to pass the laws' specified in the fifth section, but its action under the third, is left entirely discretionary ; hence arises the necessity for the introduction in the latter, of the words italicised — not as a limitation of power — hut to remove all queslion, and declare that the authority to pass laws, to extend to disqualification from office, or the tenure thereof, shall exist, notwithstanding what is declared in the subsequent sections.

These sections, providing for the disqualification of citizens, necessarily control the general equality of right, which is declared to exist by the first section of the declaration of rights; and the legislature is expressly au-thorised to enact laws to prescribe and enforce the disqualifications permitted. It may become important to consider to what state or condition of the citizen a qualification can be annexed. The terms ‘.office, or the tenure thereof,’ are used in the third section; ‘office, or place of honor or profit, under the authority of the State,’ in the fourth; and ‘ oíiieo,’ generally, in the fifth. It is supposed these are not.,sufficiently comprehensive, to include an attorney or counsellor at law, who are said to exercise a function or duty. In my opinion, this inquiry is wholly immaterial to the determination of the present question, as the conclusion to which I have arrived, will apply as well to the case of an officer, strictly so called, as to any other individual. If a statute excluded from office, one convicted of a particular offence, and used no other term of designation, I should not hesitate to decide, that the profession of a lawyer was not included within the meaning of the term, as generally used;, because, he can no more be said to hold an office, than one who pursues the profession of a physician, the avocation of a teacher, or who discharges the functions of an administrator or guardian. But if I were called on to declare, that the constitution, by these express grants, has not invested the general assembly with power to exclude from the exercise of these or similar professions, I confess I should very much doubt the propriety of such a construction. The present inclination of my judgment is, that those terms are sufficiently comprehensive to include all avocations, franchises, professions or functions, which are public in their nature, and which, therefore, may affect the constitution and well being of society.

I have arrived at the conclusion, (satisfactory to myself at least,) that the authority to pass disqualifying laws, whether affecting the citizen as an individual, or as an officer, is derived them the sections oí the constitution quoted, and exisis In no oilier cases. I have endeavored to show, that the general assembly is thereby invested with plenary power over the whole subject matter of duelling, extending to disqualification from office, or from the exercise of any avocation, profession, franchise or function, of a public nature, and that any oath may be required as a qualification for office, imposing on the conscience any obligation to do or omit any act which can be performed or omitted by every citizen, in relation to any mailer connected icith the suppression of the practice of duelling. I have also endeavored to show, that the retrospective -part of the duelling oath, requiring a state of innocence which is not possessed by all, imposes a disqualification on the guilty. It remains only to consider if this disqualification can be enforced on any individual, guilty of the offence of duelling, in the manner contemplated by this act.

I have omitted any agament, to show, that disqualification from office, O’- from the pursuit of a lawful avocation, is a punish incut: that it is so, is too evident to require any illustration; indeed, it may be questioned, whether any ingenuity could devise any penalty which would operate more forcibly on society.

Let us now examine this act, with a view to determine whether a mode is provided by which guilt can be ascertained, and is punished. A citizen is informed, that by the laws of the State, he is entitled to aspire to any office, or pursue any avocation which any other citizen can; yet when he is about to enter on the office or avocation, he is require;! to swear to ids innocence of a particular crime : it then beam:"", ('video,!., if he cannot truly take the oath reunirá1, hat he, is excluded. Can it he doubted, that for ail the purposes of disqualification, the guilt of the individual is aseorkvlncd ? In what does it differ from a general cm.cf moist, tic; luring that a candidate for office shall bo required to ¡ reve and establish his innocence of the specified .crime?

Admitting an individual to be guilty, he is neither accused, tried or convicted, by any tribunal known to the laws, yet he is punished with unerring certainty and the utmost celerity : his conscience is made his sole accuser and judge : his punishment commences with the commission of the crime, and terminates only when he ceases to exist.- he is excluded from the sympathy of his peers — no legal doubt can intervene, to produce his acquittal — an error of his judgment involves his soul in the awful guilt of perjury, or punishes him without guilt. I have no hesitation in declaring, that this act provides a mode of ascertaining and punishing guilt, which is not only unwarranted by the constitution, but is also in direct contravention of several of the most important provisions of the declaration of rights, by which the liberties and . privileges of the citizen are guarded. The twenty-eighth section provides, that “ the right of trial by jury, shall be preserved inviolate.” This was doubtless intended to guarantee the trial by jury, as it existed when the constitution was formed, and to prevent the assumption of any power by which this institution could be impaired. The tenth section had previously guaranteed, that i; in all criminal prosecutions, the accused has a right to be heard by himself and counsel; to demand the nature and cause of his accusation, and have a copy thereof; to be confronted by the witnesses against him; to have compulsory process for obtaining witnesses in his favor ; and in all prosecutions by indictment or information, a speedy public trial, by an impartial jury of the county or district in which the offence shall have been committed; he shall not be compelled to give evidence against himself, nor shall he he deprived of his life, liberty or property, but by due course of law.” These restrictions must mean, if they are not idle declamation, that no one shall be subjected to any other mode of trial for criminal offences, than was recognised by the common law; and so careful were the framers of the constitution to guard the citizen from all encroachment, that in another section, they declare that no person shall, for any indictable offence, be proceeded against criminally, by information, except in cases arising in the land and naval forces, or the militia, when in actual service, or by leave of the court, for oppression or misdemeanor in office — Section twelve.

When once it is admitted or proved, that a citizen has the right to aspire to office, or to pursue any lawful avocation, it seems to me impossible that he can be legally deprived of this right, as a punishment for an offence committed, without a trial by jury; and I can perceive no sound distinction between a law which deprives one of his right without a trial, and that which ascertains and punishes his guilt by an illegal mode of trial.

There is another view in which this act may he considered. The governor is invested with authority, by the eleventh section of the fourth article, to grant reprieves and pardons in all criminal and penal cases, except in those of treason or impeachment. We cannot presume that the general assembly intended by this act, to interfere with the constitutional prerogative of mercy vested in the executive, yet this act, if constitutional, imposes a penalty which cannot be remitted, and inflicts a punishment beyond the reach of executive clemency.

We are not at liberty to disjoin the several parts of this oath, and require such part only to be administered as we consider to be legal, because such an oath would not be the one prescribed.

A majority of the court is of opinion, and so decide, that the oath, being in part illegal, ought not to be imposed ; and therefore, the gentleman who has been examined, will receive license to practice, on taking the other oaths required by law.

ORMOND, J.

— The grave and important question raised in this case, is, whether the applicant has the right to practice as an attorney and counsellor at law in this State, without taking the oath prescribed by the law against duelling, passed in the year eighteen hundred and twenty-six. That law provides that “ all members of the general assembly, hereafter to be elected, and all officers and public functionaries, hereafter elected or appointed under the authority of the constitution and laws of this State; and attorneys and counsellors at law, shall, before they enter on the discharge of the duties of their stations or offices, either civil, military, or otherwise, take and subscribe one of the following oaths, (as the case may be,) in addition to the oath prescribed by the constitution, before any judge, &c.: ‘I ■---, do solemnly swear, (or affirm, as the case may be,) that I have, neither directly nor indirectly given, accepted, or knowingly carried a challenge, in writing or otherwise, to any person or persons, (being a citizen of this State,) to fight in single combat or otherwise, with any deadly weapon, either in or out of this State, or aided or abetted in the same, since the first day of January, one thousand eight hundred and twenty-six; and that I will neither directly nor indirectly, give, accept, or knowingly carry a challenge in ary manner whatsoever, to any person or persons, (being a citizen of this State,) to fight in single combat or otherwise, with any deadly weapon, in or out of the State, or in any manner whatsoever aid or abet the same, during the time for which I am elected, or during the time of my continuance in office, or during my continuance in the discharge of any public function.’ And upon Ms or their refusing to take the oath aforesaid his or their seat, (if a member of the general assembly,) or his or their office, or public function or appointment, shall be vacated, and shall be filled in the same manner as if he or they had resigned. Any attorney or coun-sellor at law, failing or refusing to take the said oath, shall not be permitted to practice as such, in any court in this State.”

The succeeding section of the law varies the oath, as to such persons who have become citizens of the State since the first of January, eighteen hundred and twenty-six, requiring them to swear, that “ I have not given, accepted, &c., since I have been a citizen thereof,” &c.

Tile clause of tile constitution supposed to be relied on to sustain this law, is the third section of the sixth article, and is in these words: “ The general assembly shall have power to pass such penal laws, to suppress the evil practice of duelling, extending to disqualification from office, or the tenure thereof, as they may deem expedient.”

The first question which naturally presents itself, is, whether the privilege or right to practice law, is an office within the meaning of the third section of the sixth article, just cited.

The word office has two meanings — the one popular, the other legal and technical. Thus, we speak of the office of an executor, guardian, &c. The legal meaning of the term always implies “ a charge, or trust, conferred by public authority, and for a public purpose.” It is most unlikely, that in framing a constitution of government, its authors should have used a word of the importance of this, technical in its nature, and by consequence having a fixed legal signification, in a loose or popular sense. The presumption must be, that it was used in its legal and technical sense, unless the context show the contrary. The language of the clause in question, “ extending to disqualification from office, or the tenure thereof,” is quite conclusive of its meaning; for with no propriety of language could the tenure of an office be spoken of, unless it were an office of public trust.

The fourth clause, which immediately succeeds the one just discussed, is in these words: “ Every person shall be disqualified from holding any office or place of honor or profit, under the authority of the State, who shall be convicted of having given or offered any bribe, to procure his election or appointment.”

The fifth reads thus: “ Laws shall be made to exclude from office, from suffrage, and from serving as jurors, those who shall hereafter be convicted of bribery, perjury, forgery, or other high crimes and misdemeanors.”

Here we find, in the fourth section, the word office defined to be “ a place of honor or profit, under the authority of the Stateand in the fifth section, where the same offence mentioned in the fourth section, (bribery,) is again provided for, the disqualification is from "office” simply, without adding the explanatory words found in the fourth section. No reason, it is believed, can be assigned for the use of this word in a different sense in the third section, from its clear and plain meaning in the fourth and fifth sections.

But again : under the head of impeachments, we find that the governor and till civil officers shall be liable to impeachment for any misdemeanor in office. The term is general — all civil officers — and must embrace all persons holding an office within the purview of any constitutional regulation or restriction; yet no one, we apprehend, would contend, that for mal-practice, or for other good and sufficient cause, an attorney at law must be removed by impeachment before the Senate. Yet this would be the consequence of considering attorneys and counsellors at law, officers within the meaning of the constitution. It is therefore, I think, demonstrable, that by the term “office” in the third section of the sixth article, the privilege or right to practice as attorneys or counsel-lors at law, is not included; but that the phrase is referable only to those who exercise an office or place of honor or profit under the State government, and by authority derived from it.

As it appears clear, from the slight examination just made, that the word i: office” was not intended by the framers of the constitution to extend to, or include the right to practice law as an attorney in this State, it is quite unimportant, for the purpose of this investigation, what rank in the scale of society may have been assigned to this class of persons elsewhere. The question, however, came before the Court of Appeals of the State of Virginia, in Mr. Leigh’s cas;, (1. Muaford, 468,) whether an attorney at law was an officer of the Commonwealth, and as such required to take the anti-duelling oath; and it was determined he was not. So, also, in the State of New York, it was determined by the Supreme court, that an attorney or counsellor at law did not hold an office or public trust in the sense of the constitution— (.0 .lohnson’s K. 492.) In England, also, where attorneys and counsellors at law are vested with many important privileges unknown in this State, it has been held that they are not officers of the government, so as to be required to take the test or abjuration oaths.

I am therefore clearly of opinion, that if the law in question rests for support on the third section of the sixth article of the constitution, and on the ground that attorneys at law, are officers upon whom the disqualifying law authorised by that section, to be passed, was to operate, it is unconstitutional and void.

It is not, however, certain that the legislature, in the passage of the law in question, considered attorneys and counsellors at law as officers of the State, upon whom, as such, the refusal to lake the oath was to operate as a disqualification. This receives some countenance from the peculiar phraseology of the law. The persons required to take the oath swear that they will not offend against its provisions, during the lime for which they were elected, or during their continua?),ce in office, or whilst in the discharge of any -public function; the act thus proceeds: “And upon his or their refusing to take the oath aforesaid, his or their scat, (if a member of the general assembly,) or his cr ilieir office, or public function, or appointment, shall be vacated, and shall be filled in the same manner us if he or they had resigned.” It is too manifest to require illustration, that thus far, the requisitions of the act would not apply to attorneys and coun-sellors at law. The act then proceeds thus: “ Any attorney or counsellor at law falling or refusing to take said oath, shall not be permitted to practice as such in any court of this State.” It is, therefore, not only very clear, that no authority to require the oath against duel-ling, to be taken by attorneys and counsellors at law, can be derived from the grant of power in the third section of the sixth article of the constitution, to pass laws disqualifying from office, offenders against it, but it is also quite apparent from tile law itself, that the legislature d(d not derive its authority from that source.

The great object of all free governments, has been to secure an equal administration of the laws. But the people of the United States have attempted the still more difficult task of binding even the legislative department of the government, by an organic law.

In England, when the principies of civil liberty were not as well understood, or as firmly established as they are at the present day, eminent men have at different times asserted that the parliament was not omnipotent, and fearlessly declared those principles of civil liberty, which have since then, in tills country, been declared and placed beyond all doubt, by their assertion, as part of the organic law of the land.

Thus, we find Lord ( hief Justice Hobart, asserting that “ if a statute says that a man shall be a judge in his own cause, such a lav/, being contrary to natural equity, shall be void.” And again, Lord Ooi.ce, in Bonham's case, declared that “ where an act of parliament is against common right or reason, cr repugnant, or impossible to be performed, the common law shall adjudge it to be void.” Of this declaration, Lord Holt, in the case of the City of London and TTood, said “that the observation of Lord Coke was not extravagant, but was a very reasonable and true saying.”

It is true, that in that country, these opinions were then, and have since been questioned, as applicable to the British constitution, though it is conceded by a recent English writer, that such is the law of the United States —(See Dwarris on statutes, 646.) Indeed, it cannot be necessary, at this day, to cite authorities to establish the principle, that a law contravening the constitution is void, and that the judiciary have power to declare it so.

“ In the case of Calder vs Bull—(3 Dallas Rep. 386)— Judge Chase, impelled by the same strong sense of justice, and animated by the same principles of liberty, which influenced the British Judges, just quoted, takes the high ground, “ That there arc certain vital principles in our free republican government, which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by-positive law; or to take away that security for personal liberty, or private property, for the protection of which government was established. An act of the Legislature (for I cannot call it a law,) contrary 10 the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law, in governments established on express compact, and on republican principles, must be determined by the nature of the power on which it is founded. A few instances will suffice to explain what I mean. A law that punishes a citizen for an innocent action, or in other words, for an act which when done, was in violation of no existing law; a law that destroys or impairs the lawful contracts of citizens; a law that makes a man a judge in his own cause; or a law that takes property from A and gives it to B. It is against all reason and justice, for a people to entrust a legislature with such powers, and therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit of our State governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them. The Legislature may enjoin, permit, forbid and punish ; they may declare new crimes and establish rules of conduct for all their citizens in future cases; they may command what is right, and prohibit what is wrong, but they cannot change innocence into guilt, or punish innocence as a crime; or violate th 1 right of an antecedent lawful private contract; or the light of private property. To maintain that our federal or State Legislatures possess such powers if they had not been expressly retained, would, in my opinion, be a political heresy, altogether inadmissible, in our free republican governments.”

Judge Iredell, in tile samo caso, held a different doctrine, maintaining that if a law was within the general scope of constitutional power, no court could pronounce it void, because it was, in XI e judgment of such court, contrary to the principles of natural justice.

It is not necessary to decide the abstract question, mooted by these eminent mea-^/hqtj.her the very principles upon which our government is founded, do not forbid the passage of laws which are repugnant to nat-_nr^l insticAuasd equity, or which violate the principles of civil liberty, because the people who formed the Constitution of Alabama, have provided by the organic law of the State, for the examination by the judiciary, of all laws having this tendency, whether expressly forbidden by the bill of rights or not.

The people, by that instrument, have enumerated and asserted certain first principles, w hich they therein declare, they have reserved to themselves, and have not delegated to the legislative department of the government. The last section of the Bill of Eights, is in these words: “ This enumeration of certain rights shall not be construed to deny or disparage others retained by the people; and to guard against any encroachments on the rights herein retained, or any transgression of the_ high powers herein delegated, we declare, that every thing in this article is excepted out of the general powers of government, and shall forever remain inviolate; and that all laws contrary thereto are void.”

By this it appears, not only that the rights asserted in this instrument, are reserved out of the general powers of government, but also that this enumeration shall not disparage others not enumerated ; and that any act of the legislature which violates any of these asserted rights, or which trenches on any of these great principles of civil liberty, or inherent rights of man, though not enumerated, shall be void.

It cannot, I think, be successfully maintained, that this last and not least important clause of the Bill of Rights, is void of meaning. Is it unreasonable to suppose that the framers of this declaration knew, that the principles maintained by the immortal British judges, cited in this opinion, as well as by the jurists of our own country, had been frequently called in question ; and that they intended to provide against every possible infraction of our free institutions ? Be this as it may, it is certain that many cases might easily be supposed, of flagrant enormity, of most undeniable injustice, and in direct hostility with the dearest rights of man, which are not forbidden by the bill of rights, if this clause has no effect.

We are not to construe this instrument as if it were a penal law, singling out individuals, and operating harshly on them: it is for the benefit of the whole, and should receive a large and liberal interpretation. Nor do I know of any sound canon of legal criticism, which would authorise its rejection. It is the most solemn act of the people, in their sovereign capacity — dictating the termsomwhich they are willing to be governed; and it is duty and interest to preserve it unimpaired.

jfBmmTnow proceed to test the law in question by these principles, as well as by the express interdict of the bill of rights.

I have shown, that it cannot be supported by the express grant of power in the third section of the sixth article ;vso far, that allows disqualification from office.— It may’however be supposed, that the clause just mentioned, contains two grants of power; the one just enumerated, and a general power to pass penal laws to prevent the evil practice of duelling. But the power to pass general penal laws for that purpose, must have been included in the high power conferred on the legislature by its creation with legislative powers; a special grant of the power, therefore, was nugatory and idle. I infer, therefore, that all that was intended by this article, was to authorise the legislature to make the offence of dueling, a disqualification from office. But if more was intended, and a further grant of power was made, to pass penal laws to suppress dueling, surely it was not an unlimited grant of power, but must be held subject to the same restrictions that the generaUgrant of legislative.

This is a highly penal law — it excludes, unless its terms are complied with, all persons from practising as attorneys and counsellors at law in the courts of this State. It must therefore receive a strict construction, in accordance with well established principles, and the authority to pass it, be clearly and fairly derivable from the constitution..

The tenth section of the Dill of Rights, among other things, provides, that no oao “ shall ho Q.mp^U£dtofeive ^448íU^U!£^iaUhkíiiscif, nor shall he be depi^^^Khis life, liberty or happiness, but b;v due course — After a patient and mature examination of the matter, I am of opinion, that the requisition of the ’ expurgatory oath exacted by this law, offends against this portion of the bill of rights. It is so offensive to the first principles of justice to require a man to give evidence against himself in a penal case, that independent of the constitutional interdict, no one in this enlightened age will be found to advocate the principle. But it may be said, this is not a case of this kind, as no corporal or pecuniary punishment is the consequence of a refusal to take the oath against duelling. But are not the results the same, whether punishment follows from the admission, or is imposed as a consequence of silence. Can ingenuity make a distinction between a punishment inflicted in this mode, as a consequence of the refusal to take the oath, by closing one of the avenues to wealth and fame, and a positive pecuniary mulct ? If there he a difference, I think it entirely in favor of the latter, so far as the amount or weight of the penalty could affect the decision of this question.

In ascertaining the intention of the people, in the reservation’of certain great rights and privileges, we should give them a broad and liberal construction, so as to effect the manifest intention of its framers. In this there is no danger. They have asserted that they have not delegated the power to invade either of the great natural rights just cited- Does it become this court, or the legislature, to quibble on its terms? If tlie mischief is as great in one case, as in the other, are not both included within the prohibition. With great deference to the opinion of others, whojnay Pi her hour me in opinion, I think, that the requisition by the legislature, of this oath, in substance and effect, requhv.) the applicant for a license to give evidence against I-'msclf; and that if not within the letter, is at least within the mischief of the prohibition; — the very foundation of which is, that every one is presumed to be innocent until the contrary appears.

But if it were admitted, for the purpose of this argument, that the legislature could prohibit all persons concerned in a duel from practising in the courts of the State, by making it a high penal offence, still the crime or offence must be ascertained by “ due course of law,” according to the requisition of the tenth section of the bill of rights, just cited. The term “ due course of law,” has a settled and ascertained meaning, and was intended to protect the people against privations of their lives, liberty, or property, in any other mode than through the intervention of the judicial tribunals of the country.— But.,this law seeks to ascertain a fact, exalted into a crime, and punished in a peculiar manner, not by the judgment of a competent court, but by the admission of the offender, and construes his silence into evidence of guilt.

It may be again said, that there is no deprivation of life, liberty or property, consequent on a refusal to take the oath. I answer, that the law itself presumes the right to practice law, a valuable right, as it confers it as a boon, on those who can, and are willing to take the oath. Can it be seriously contended, that it is not a valuable right, and as deserving of protection as property ? Suppose the right to practice law, was confined to a particular class or order of men, by law, would it not be esteemed a most valuable privilege? And if the right of entering this fraternity could be purchased with money, would it not command a high price? I think there can be no doubt of it; and if so, exclusion from it must be the privation of a valuable right; as worthy of the protection of the law, as property ? I think, therefore, that in this view, the law in question, is contrary to the spirit, the plain intent, and meaning of that part of the tenth section of the bill of rights, which provides, that “no one shall be deprived of life, liberty, or property, but by due course of law.”

I am also of opinion, that the act in question, so far as it prescribes an expurgatory oath, as a condition to the practice of law in this State, (though passed with the most laudable motives,) is contrary to the very scope and design of a free government. The most arbitrary and vexatious inventions of tyranny, are those regulations of law, which interfere with the domestic concerns of society, by preventing the citizen from the pursuit of happiness in his own mode. The “pursuit of happiness” is asserted in the Declaration of Independence, to be an inherent right; and is promulgated as a self-evident truth. And certainly if that expression means any thing, it must include the right to select which of the various avocations or pursuits in life, a young man will engage in; his future destiny, and his value to the State, as one of its members, demands the utmost freedom of choice ; and it is, therefore, of the highest importance, in a free government, that this right of choice should not be impaired. But here is an act of the legislature, which prohibits the candidate for wealth, and fame, and public honors, from selecting the profession of the law, unless he will take an expurgatory oath, that he has not been guilty of a certain act or offence, and that he will not be guilty in future.

' I am unable to distinguish this, in principle, from the test oaths, which have stained the statute books of other countries. I admit, that the object in view is more praiseworthy, than was the object of those who disfranchised their fellow citizens for supposed heresies in religion, or for errors of political belief; but in principle I think they are the same. Indeed it may well be questioned, whether in so far as future good conduct is required to be stipulated for on oath, by the act in question, it does not violate the rights of conscience. Judge Roane, in Mr. Leigh’s case, which arose on a statute similar to ours, expresses himself thus: “ However laudable the act to suppress duelling may be, it is still a highly penal law, and must be construed strictly. It is unusually penal, if not tyrannical, in compelling a person to stipulate on oath, not only in relation to his past conduct and present resolution, but also for the future state of his mind; and his future conduct with respect to the offence in question, under all possible circumstances ; a stipulation which many consciencious persons, however prepared to take the oath as regards the time present, might well hesitate to enter into.”

The resemblance of the requisition of the oath, in the act to suppress duelling, to a test oath, is more apparent when we consider, that the oath required to be taken, does not describe any offence known to our law. The oath is in these words: “ I, —--, do solemnly swear, that I have neither directly nor indirectly, given, accepted, or knowingly carried a challenge, in writing or otherwise, to any person or persons, (being a citizen of this State,) to fight in single combat or otherwise, with any deadly weapon, in or out of the State, or in any manner aided and abetted in the same, since the first day of January, eighteen hundred and twenty-six; and that I will neither,” &c. &c. As the law stood previous to the year eighteen hundred and nineteen, to deliver, offer, send, or accept a challenge to fight a duel, was an of-fence punishable by law, whether any duel was fought in pursuance of such challenge or not; bub by the law, as it now stands, the mere sending or accepting a challenge to fight a duel, is no offence punishable by law, unless the duel be actually fought. - This point has been determined by the Supreme court, in the case of Smith vs the State, (1 Stewart, 506.) It follows, therefore, that the act requires the applicant for a license to practice law, to swear that he has not, since the year eighteen hundred and twenty-six, or since he has been a resident of the State, done certain acts, and that he will abstain from so acting in future, which acts constitute no crime or offence known to our law.

11 It is conceived that the very essence of a test oath, is the prohibition to entertain certain religious or political opinions, which do not expose to punishment, hut which merely exclude from office, the holder of them. The enormity of test oaths consists mainly in this, that there is nothing in the opinions themselves required to he abjured, which unfit the person holding or maintaining them from filling the offices or dignities of the State, but merely that such is the exaction of the law. But if exclusion from office on such grounds, is justly considered incompatible with free institutions, how much more objectionable is it in principle, when the test is sought to be applied, not to the tenure of office, but to the walks of private life. For it if be true, as I think I have shown, that an attorney or counsellor at law, is not an officer within the meaning of the constitution, then there is no more reason or propriety, in exacting the oath against duelling from an attorney at law, than there would be in demanding it from a physician, from a planter, or from any other class of the community.

Attorneys and counsellors at law, having to manage the business of others, and having important interests entrusted to their charge, it is proper that they should be of good moral character, and reasonably skilled in the law. There can be no possible objection to requiring from them an oath of fidelity to their clients. This appertains to the duties of their employment, and is in harmony with other similar provisions in our code,in reference to persons who fill quasi offices: such, for example, as is required of executors and administrators. But if this plain and intelligible ground is abandoned — if it be conceded that the legislature can impose as the price of filling these stations, an oath, not appertaining to, or in any manner connected with their, employments — -the same process of reasoning which conducts to the conclusion that such oaths are constitutional, will authorise the imposition of a political test, as the qualification not only of those who may desire these employments' or quasi offices, but also of the offices created by the constitution.

The constitution has, in terms, prescribed the oath which the officers of tile State government shall take. This, by necessary implication, excludes the imposition of any other oath as a qualification to office under the State government.It is true, the third and fourth sections of the sixth article, confer on the legislature the power to exclude from office, persons guilty of certain offences, but I deny that the commission of these offencés can be ascertained by the oaths of the accused. It is not necessary that their existence should be thus ascertained, to give effect to the law. It is a mode unknown to the common law, and forbidden by the bill of rights. It follows, therefore, that if attorneys and counsellors at law, can be considered as officers within the meaning of the constitution', no oath of office can be prescribed by the legislature, other than the one provided in the constitution. j

As I do not doubt that the law in question has had a salutary operation in restraining the barbarous practice of duelling, I lament the necessity which has been cast upon me, of determining that it is void ; and if I could entertain a reasonable doubt of the correctness of the conclusions I have attained, I should give it my sanction:

I am, however, sustained by the reflection, that it is in the power of the legislature to accomplish this desirable object — so far at least as law can operate, without infringing on the constitution.

I have stated my objections to the law under discussion, with the freedom which the station I hold demanded; and have put that construction on the constitution, which 1 think best comports with the intention of its framers. It may be thought by some, that many of the objections I have stated are visionary, and never likely to occur in practice — that it is not fair in argument to put such extreme cases, as the passage of a law requiring a political test. I answer, that I do not suppose it probable that the legislature will so act. But the judicial tribunals, in expounding a law, with the reference to its constitutionality, must say whether the constitution warrants it or not - not whether the invasion of the constitution, if there be one, is likely to be prejudicial. The legal presumption is, that all violations of the constitution are prejudicial. Experience teaches, and all history shows, that there is but one mode of preserving free institutions in their purity, and that is, by resisting the first attempt to overleap the prescribed boundary.

For the reasons given, I am of the opinion that so much of the sixteenth section of the act on the subject of duelling, as requires the oath therein prescribed to be taken by attorneys and counsellors at law, is contrary to the constitution, and therefore void.

COLLIES, C. J.

— With a view to perspicuity, I will -consider, First: In what manner attorney’s at law are » admitted to the bar ; Second : The character of the trust acquired by a license to practice as an attorney and coun-sellor at law, and the rights it confers; and Thirdly : How such a license may be revoked or annulled.

First. Every one required, by the King’s Writ to appear, by the common law, was obliged to appear in person, but after his appearance, it was competent for the Chancery, King’s Bench, Common Pleas, or other court which held flea by toril, to admit him by attorney: And even a court holding plea, without writ, might allow that privilege, if the King had granted a writ de attorna-to faciendo—(1 Com. Dig. 748;) (Crabb’s Com. Law, 118.) So the King, by virtue of his prerogative, by grant either under the great or privy seal, might authorise the plaintiff or defendant in any suit, to make an attorney, and order the court to admit the attorney appointed, either naming in the authority issued for that purpose, some particular attorney, or else giving leave to the party to make quem aut quos voluerit. And the King might grant to a party, power to make a general attorney in all pleas motis vel movendis in all courts—(Ibid and 1 Bac. Ab. 288.)

' . By several English statutes, the first of which is the statute of Merton, (20 Hen. 3 ch. 10,) attorneys are allowed to be made in particular courts and cases; but the common law, as applicable to courts and cases in general, remained without change until the statute of Westm. 2, (13 Edward I, ch. 10,) which authorised persons im-pleaded for tenements in Eyre, or in B. R. or assize, in County court, or court baron, to make a general attorney to sue for them in all pleas, moved for or against them, during the circuit, <fcc. This statute has been followed by many others providing for the admission and regulation of attorneys—(1 Com. Dig. 741 et post; 1 Bac. Ab. 288, et post.) And rules have been adopted from time to time by the higher courts in England, upon this subject, on the ground that attorneys are officers of the courts in which they practice, and subject to their control and direction.

In the different States of the Union, the rules are various in regard to the qualification and admission of attorneys. They are prescribed either by statute or rules of court; all of which impliedly assume the practice of the law to be a privilege to which the legislature may attach such conditions as its wisdom may dictate—Griffith’s Reg. Commonwealth vs Judges of Cumberland county, (1 Serg. & R. 187;) Anon, (4 Johns. R. 191;) Ex parte Sayre, (7 Co wen’s R. 368.)

In this State, several statutes have been enacted upon the subject. The first in the order of time is the act of eighteen hundred and seven, which inhibited every person from practising as counsellor or attorj any of the courts of the then territory previously produce a license, and take i the court) an oath to support the constit ted States, as well as an oath to demean| as counsellor or attorney, and in all respl to the best of his abilities, his “ office.” AndUls^rthcr declared, that every person convicted of any felonious crime, shall be incapable of obtaining such license; or if licensed, the judge of any court in which such person may practice, on proof thereof being made, may suspend his license — (Aik. Dig. 43, 44.)

The statute of eighteen hundred and nineteen, enacts “ that no person shall be permitted by any court, to practice therein as counsellor or attorney at law, unless he shall have obtained a license from the Supreme court of this State; and it' shall be the duty of said court, when application shall be made by any person as aforesaid, on his producing satisfactory evidence that he sustains a good moral character, to examine, or cause to be examined, in open court, the person so applying: and if after such examination, it be the opinion of said court that he is duly qualified, it shall be the duty of the judges thereof, to grant a license under their hands and seals, which shall be attested by the clerk of said court.” This law contains a proviso, exempting from its operation, all persons theretofore regularly licensed. And the statute itself was so far modified, by an act of eighteen hundred and twenty-one, as to allow any two judges of the Circuit courts to grant licenses to attorneys to practice in the Circuit and County courts.

By an act of eighteen hundred and nineteen, all applicants for admission to the bar, together with persons elected to civil or military stations or offices, were required to declare upon oath, that they had not' been guilty of having given, accepted, or carried a challenge to fight, &c. and that they would not be guilty, &c. — • This act was slightly modified by a statute of eighteen hundred and twenty-six, which prescribes the following oath, to be taken by counsellors and attorneys at law, and persons elected to civil or military office, &c. “ I, -, do solemnly swear, (or affirm, as the case may be,( that I have neither directly nor indirectly given, accepted, or knowingly carried a challenge, in writing or otherwise, to any person or persons (being a citizen of this State,) to fight in single combat or otherwise, with any deadly weapon, either la or out of the State, or aided or abetted in the sanie, si nee the fast day of January, one thousand eight hundred and iv.yuty-six; and that I ■will neither directly or indirectly give, accept, or knowingly carry a challenge in any manner whatsoever, to any person or persons (being a citizen of this State) to fight in single combat or otherwise, with any deadly weapon, in, or out of the State, or in any manner whatsoever aid or abet the same during tile time for which I am elected, or during my continuance in office, or during my continuance in the discharge of any public function.” And upon the failure or refusal by auy attorney, or counsellor at law, to take the oath provided by the act, it is declared, that he shall not be permitted to practice as such in auy court in this State. Persons emigrating to this State, after the first day of January, eighteen hundred and twenty-six, before they enter upon the discharge of any public function, are required to take the oath quoted above, so modified as to make it relate back to the time they became citizens of the State.

In addition to the oaths provided by the several statutes referred to, the act last cited, requires that attorneys at law, shall take the oath directed by the constitution to be taken by all officers, which is as follows: “ I solemnly swear (or affirm, as the case may be) that I will support the constitution of the United States, and constitution of the State of Alabama, so long as I continue a citizen thereof, and that I will faithfully discharge, to the best of my abilities, the duties of --, according to law. So help me God.”

The only rules of court we have, applicable to the liCense and qualification of attorneys, relate alone, to the particular days of the term, on which, applicants for admission are to be examined. And having shown the manner in which attorneys are admitted to the bar, I proceed to consider the second point.

Second. — It will result from what has been already said, that the right to exercise the functions which pertain to the 'profession of the lato, is not an absolute right derived from the law of nature, but it takes its origin in the institutions of the social state; and by these it is regulated. A license to practice law, confers a mere franchise or privilege; and is granted by the legislature, through its organ the Supreme court, in the one case, and two judges of the Circuit courts, in the other, to persons applying, who may discover the proper legal attainments, and exhibit satisfactory evidence of good moral character. The license thus obtained, confers no rights in itself,' — it is conditional, depending for its efficacy, upon taking the oaths prescribed by law : when the licencíate has taken these, he is then, and not sooner, invested with the character of an attorney and counsel-lor at law; and entitled to exercise the privileges, and bear the responsibilities, which belong to his situation. No one can claim an admission to the bar as a matter of right. The legislature, in authorising the merits, (both moral and scientific) of the applicant to.be scanned, have given to the licensing power, a discretionary jurisdiction over the subject. (Burr’s case, 1 Wheeler’s Grim. Cases, 505.—Leigh’s case, Roane’s opinion, 1 Munf. R. 481.)— Hence it is, that a mandamus will not lie, commanding the judges of an inferior court to admit a person to prac-tico us an attorney there; but if it be grantable at all, it can only be to examine his testimonials of character, and to enquire of his knowledge of the law.—(Rex vs York sh’ff — 3 B. & Adolp. 770.)

Nor does an attorney and counsellor at law, as such, hold an office under the government. An office in legal language, say the Supreme court of New York is, “An employment on behalf' of the government, in any station, or public trust, not merely transient, occasional, or incidental. In common parlance, the term has a more general signification. Thus we say, the office of executor or guardian ; or the office of a friend. In my judgment, an attorney or counsellor does not hold an office, but exercises a privilege or franchise. As attorneys or counsellors, they perform no duties on behalf of the government ; they execute no public trust. They enjoy the exclusive privilege of prosecuting suits for clients who may choose to employ them.” — (In the matter of attorneys’ oaths; 20 Johns. R. 492.) And the Court of Appeals of Virginia, in considering the nature of the trust acquired, by an admission to the bar, say — “There is no just ground on which we can erect, by implication or construction, into governmental officers, those who, in England, are not exalted to that character, and who, in the only books and doctrines handed to us on the subject from that country, are held, at'most, to be mere subordinate officers of their respective courts. But if attorneys could even be considered as officers of the government, they do not hold an office of profit or emolument under the government; otl erwise they would have been excluded from a seat in the legislature, by the constitution; which has never been done nor attempted in relation to mere attorneys, however it may as to those who are “ appointed” to prosecute for the commonwealth, and receive a salary therefor. — (Leigh’s case, Roane’s opinion, 1 Munf. R. 483.)

In the case of Woods, (Hopk. Ch. R. 6,) Chancellor Sanford was of opinion, that the station of an attorney or counsellor was an office or a public trust, within the meaning of the constitution of New-York. And in Seymour vs Ellison (2 Cowen’s R. 13,) Chief Justice Savage deólared his acquiescence in the correctness of the chancellor’s opinion ; though in the latter case, the point does not seem to have been determined.

Taking the law to have been correctly adjudged, in the cases cited from 20 Johns, and 1 Munford, an attorney may be said to hold a privilege ox profession, acquired under the sanction of legislative authority, for which, he renders no direct equivalent to the State, but undertakes expressly, that in its exercise, his course shall be characterised by integrity and patriotism; and, in addition to the oath against duelling, he impliedly stipulates, that he will not commit a felony or other crime founded in moral turpitude.

The common law, has its foundation in an enlightened and elevated morality: its aim is single — the administration of justice, upon principles of moral right; and to this end, it is guided and controlled by rules and principles applicable to every state of facts and circumstances. The attorney and counsellor, who must be presumed to be peculiarly conversant with the science, is largely concerned in the administration of justice, and placed in a situation, in which, if he regard the promptings of evil, he may inflict upon others, the severest injury, and greatly impair the tone of public morals.

The science of the law, when properly understood and appreciated, inspires to noble and generous effort. The pursuit of the virtuous and enlightened lawyer, is most honorable. He cherishes, with ardent feelings, benevolence, charity, and all the virtues which elevate man in the scale of moral beauty. He explores the abstruse and obscured learning of other ages, that he may the more successfully protect the weak, vindicate the innocent, and punish the oppressor — looking to the consciousness of having performed his duty for his chief reward; and seeking that consideration, which intellect, directed by virtue and industry, will always secure.— To maintain the respectability and honor of a profession, which is capable of exerting so extensive an influence, and of consequence, to protect individual interests, the law has wisely provided checks for the consciences of its members.

The right conferred, by an admission to the bar, is irrevocable; unless the attorney, was then, unworthy of the profession, or afterwards committed some act, or omitted some duty, which the law determines to be, in itself a forfeiture of his functions, or a sufficient cause for the vacation of his license. If he commit a breach of the conditions, on which he is admitted to the bar, he forfeits his trust in the same manner as the grantee of a public franchise does, who omits to perform the terms on which it is granted — (City of London vs Vanacre—12 Mod. R. 271-Bank of New-York vs Stryker—1 Wheeler’s Crim. Law, 330.)

I am now brought to consider the third point.

Third. — It is well settled, that at common law, an attorney may be disbarred, or, as it is most usually called, stricken off the roll, in a summary way, for dishonesty in his practice, or other sufficient cause.—(1 Bac. Ab. 306; 1 Com. Dig. 761 ; Leigh’s case, Leigh arguendo, 1 Munf. R. 470; Bank of New-York vs Stryker—1 Wheeler’s Crim. Law, 330 ; In matter of Sh’ff, &c. of New York, on complaint of McClelan—ibid, 319; Burr’s case—ibid, 503; Darby’s case—3 Wheeler’s Crim. Law ; 1 Anon.; 2 Cowen’s R. 589; State vs Holding—1 McC. R. 379; Burr’s case—9 Wheat. R. 529; Anon.; 2 Hals. R. 162; Ashton’s case—1 Mod. R. 41; ex parte Troy—1 Mod. R. 6; ex parte Hill and Hargrave—2 Bla. R. 991; Brownsail’s case—Cowp. R. 829; The King vs Southerton—6 East’s R. 126; Anon.; 1 Chitty’s Rep. 557; In the matter of - 1 D. & R. 529; Smith vs Mathan—4 D. & R. 738.) So, if one was admitted to the bar, whose moral character was previously such as to render him undeserving of a license, he may be excluded from the profession. Thus, in the matter of Dormenon, (1 Mar. R. 129,) a rule was entered against Mr. Dormenon, to shew cause why his name should not be stricken from the roll, as an attorney and counsellor at law, on the grrund that he had aided and assisted the negroes of St. Domingo, in massacreing the white people in seventeen hundred and ninety-three. The court declared, that if they had been in possession of these facts, Mr. Dorme-non’s application would have been refused; and the court now having evidence of them, it was their duty to exclude him. And the rule was made absolute.

The right to proceed summarily against attorneys, for ill practice, &c. is considered, at common law, to rest upon the ground, that an attorney is an officer of the different courts before which he practices — (1 Bac. Ab. 306,) —and to result from the discretionary power to admit attorneys and counsellors to the bar. — (Burr’s case, 1 Wheeler’s Crim. Law, 505.) But, Hawkins, in his Pleas of the Crown, (2 vol, 2 B. ch. 22, sec. 30,) in treating of barristers, remarks — that notwithstanding they are neither officers of any court, nor invested with any judicial office, but barely practice as counsellors, yet, in as much as they have a special privilege to practice the law, and their misbehavior tends to bring a disgrace upon the law itself, they are punishable for any foul practice as the ministers of justice are.

In the case of Niven, (1 Wheeler’s Crim. Law, 337, in note,) an attempt was made to distinguish between the responsibility of an attorney and a counsellor; whereupon it was said, “ They are both licensed by the court: nor can they engage in professional employment without its special permission. This permission can only be obtained by evidence of ability and integrity. Both are deemed requisite to a candidate for admission, before he is considered worthy of being entrusted with the protection of the property and the vindication of the rights of his fellow-citizens; and it would seem to follow, that the same power which conferred, ought to be authorised to withdraw, this permission whenever those valuable purposes are abused.” And again, “ It would be strange indeed, if this vigilance should be required towards those who were passing the threshhold of our courts, and that ■when once admitted, they should bid defiance to restraint, and with impunity be guilty of acts, which would have debarred their entrance. ■ If the great purposes of justice require this early caution, and this careful examination, they still more imperiously demand the same watchfulness over those, who have been presented to the public as deserving of their confidence and patronage. The case of Burr (before cited) was brought before the Supreme court of the United States, upon an application for a mandamus to restore him to the bar; when the court remarked, that “ The right to dismiss an attorney from his profession, is incidental to all courts, and is necessary for the preservation of decorum, and the respectability of the profession”—(9 Wheat. R.. 529.)

The common law procedure against attorneys for improper practice, has been modified in this State, by an act passed in eighteen hundred and seven, “ concerning counsellors and attorneys at law,” which so far as need be noticed, is as follows: “ If any of the judges of the Superior courts, from their own observation, detect any mal-practice in the said courts, in any counsel or attorney of those courts; or if complaint in writing be made to them of such mal-practice in the said courts, or in the County courts of any county, the party accused shall be summoned to shew cause why an information should not be filed against him: and if such information should be ordered, and the counsel or attorney so offending should be found guilty of the matter therein charged, the said judges of the Superior courts may either suspend his license during a certain time, or vacate it altogether, as they shall deem most proper; first ordering a jury to he empannelled for the trial of such information.” Thus, instead of exhibiting charges and calling upon an attorney to shew cause, why he should not he stricken from the roll, he is required to shew cause why an information should not he filed against him; the allegations of which he is entitled to have tried by a jury.

It has been shown, that the licensing authority have a discretionary power over the application of individuals seeking admission to the bar, — that without a “ special permission,” no person has the right to assume the functions of an attorney and counsellor at law, — that this right, when acquired, is at most, a mere privilege to practice that profession, so long as the attorney shall approve himself worthy of its honors, or do no act operating a forfeiture, but subject to be withdrawn, whenever his misconduct shall be such as to authorise his exclu sion from the bar. This view has been taken, that it might be seen, that no absolute or positive right of the citizen was involved in the subject, and that it was of consequence, open to legislative regulation.

Havingsettled the general proposition,that the legislature may prescribe the qualifications of an attorney and coun-sellor, and the causes for which they may be excluded from their profession; — -we will now enquire whether the oath prescribed by the act to suppress the “ evil practice of duelling,” is incompatible with any provision of the constitution.

The arguments on this point have been elaborate and ingenious, and present the following inquiries: 1. Is the legislative authority dependent upon the grants contained in the constitution, or cannot that department exercise such powers as are not expressly or impliedly withholden ? 2. Docs the constitution inhibit expressly, or by some incompatible grant or prohibition, the enactment of the act of eig'htecn hundred and twenty-six, as it regards its operation, and the manner of its operation on attorneys and counsellors at law ?

1. The powers possessed by the federal government are conventional, and it can exercise none others than those conferred, for it owes its existence, its nature and its continuance, to the agreement of its members, as evidenced by a written constitution. But in regard to the authority of the State, the legislative power is not derived from a constitutional grant — it was possessed previous to the formation of its constitution, and is but regulated and controlled by that instrument. This distinction between the federal and local legislatures rests upon such clear principles, that it will be needless to enlarge upon the proposition, by the employment of any reasoning of our own. Mr. Madison, in discussing the supposed danger from the powers of the Union to the State governments, remarks: “ The powers delegated by the proposed constitution, to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised on external objects, &c. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvements, and prosperity of the State”—(Federalist, No. 45.) In Golden vs Prince, (3 Wash. C. C. R. 313,) Mr. Justice ’Washington, considered, that the State, in the adoption of the' federal constitution, retained the right to make such laws as they might think proper, within the ordinary funetions'of legislation, if not inconsistent with the powers vested exclusively in the Government of the United States, or not forbidden by some article of the constitution of the United States or of the State; and such laws were obligatory upon all the citizens of that State, as well as others who might claim rights, or redress for injuries under those laws. So, in Barker vs the People, (20 Johns. R. 457,) it was held that “ the powers of the legislature were not conferred by any express grant, but result from the institution of a supreme legislature. It is an axiom, that the legislature possess all power, not expressly forbidden either by the constitution of the State or of the United States, which relates to the prevention of crime, or the ■ well ordering of society.” And in the State vs McDonald, (4 Porter’s R. 465,) this court say that “ the Congress of the United States possesses only such powers as are delegated, or such as are necessary to give effect to those that are expressly delegated. Our legislature looks not to the constitution for a grant of powers, but exercises all such as are compatible with the social compact, unless restrained by express inhibition or clear implication.” Let these citations suffice to show, that while the constitution of the United States is an enabling charter, the constitutions of the States are instruments of re-' straint and limitation upon powers already plenary; and that it is competent for the legislature of a State to adopt such measures within the appropriate sphere of legislation, as are not inhibited either expressly or by implication.

2. 'Upon the second branch of the argument, it is insisted, that the constitution having made it the “ duty of the general assembly, as soon as circumstances will permit, to form a penal code, founded on principles of reformation, and not of vindictive justice,” (19 sec. 6 art.) has thus limited the power of the legislature, over the subject of criminal jurisprudence.

This provision, it is conceived, is addressed to the legislature merely, and invests it with a large discretion in determining what circumstances are favorable to the performance of the duty it enjoins, as well as great latitude in adjusting the proportion between punishment and crime. And if, in the opinion of the legislature, the time has not yet come when the “ penal code” shall be remodelled, that opinion cannot be revised, nor can legislative action be accelerated by a co-ordinate department of the government. Nor can this constitutional injunction impair the force of particular laws for the prevention or punishment of crime, enacted previous to the formation of the code contemplated by the constitution.

It has been further argued, that the tenth, eleventh, twelfth, twenty-seventh, and thirtieth sections of the first article, and the third section of the sixth article of the constitution, inhibit the requisition of the oath prescribed by the act of eighteen hundred and twenty-six. The tenth section secures to the accused, the right to be heard by himself and counsel; to demand the nature and cause of the accusation, and have a copy thereof; to be confronted by the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and in all prosecutions by indictment or information, a speedy public trial by an impartial jury of the county or district in which the offence shall have been committed: It declares further, that he shall not be compelled to give evidence against himself, nor shall he be deprived of his life, liberty, or property, but by due course of law. This section applies professedly to criminal prosecutions: but conceding that it refers to such as are quasi criminal, and what influence can it exert upon the application we are considering? Had not the applicant declined the relinquishment of his profession, it is true, that in order to his suspension from its functions, it would have been necessary for some court having jurisdiction, to have adopted coercive measures to effect that end; when he might have insisted (under an equitable construction of the act of eighteen hundred and seven,) upon a trial by jury. Instead, however, of taking that course, the applicant has with greater propiety withdrawn from the practice of the law, and now, instead of defending himself against a proceeding contemplating his removal, he is seeking a re-admission; so that the inquiry does not properly arise, whether he has been irregularly deprived of a privilege. It is, however, argued, that the anti-du-elling act of eighteen hundred and twenty-six, is obnoxious to the provisions of this section; because, in effect, it compels a man to give evidence against himself, and because it does not make a verdict and judgment of guilty, indispensable to an infliction of its penalties. This argument (with all deference,) assumes as a fact, that which seems to me to be false. It supposes that a man, in asking admission to the bar, does not act from volition, but under the influence of coercion, and if guilty, that he is compelled to disclose his guilt of having offended against the laws to suppress duelling. I have already shewn, that the right to practice law is a mere privilege, which no one is constrained to ask or receive, and that in determining the propriety of granting it, the licensing power is, for the public good, invested with a large discretion.

The oath prescribed by the act of eighteen hundred and twenty-six, does not, in terms, require the party taking it, to make a disclosure of any fact or facts affirmatively : — it merely requires him to disavow his guilt of having given, accepted, or carried a challenge to fight, &c. If guilty of having done either one of these, he has only to remain silent — but if it were possible to consider the oath as equivalent to an affirmation, directly the reverse of its terms, yet it would disclose no crime for which a party could be subjected to punishment according to the usual forms of criminal procedure. To give, accept, or carry a challenge to fight, &c. unless a fight actually ensues, is not a crime known to the laws of this State—Smith vs the State, (1 Stew. R. 506.)

The latter part of this section, declares that “ the accused shall not be deprived of his life, liberty, or property, but by due course of law.” The terms “ life, liberty or property,” speak their own meaning, and clearly refer to the three great interests — human life — personal liberty — and private property, which it was the object of civil government to protect. By “ due course of law,” we are to understand those forms of arrest, trial and punishment, guarantied by the constitution, or provided by the common law; or else such as the legislature, in obedience to constitutional authority, have enacted to ensure public peace, and elevate public morals. The twenty-ninth article of Magna Charla, declares that no freeman shall be deprived “ of life, liberty, or property, but by the judgment of his peers, or the law of the land.” Yet this has never been considered as inhibiting the right of courts of judicature to punish for contempts, or to disbar an attorney without the intervention of a jury Darby’s case, (3 Wheeler’s Crim. Law, 5.) The power to proceed summarily in these cases was considered as important to the respectability and influence of the bench, and the administration of justice in its purity. The terms employed in Magna Charta have a meaning quite as extensive as those used in our constitution, and the judicial exposition of the one, should be taken as a guide to the proper understanding of the other.

The eleventh section declares, “ that no person shall be accused, arrested, or detained, except in cases ascertained by law, and according to the forms which the same has prescribed ; and no person shall be punished, but in virtue of a law, established and promulgated prior to the offence, and legally applied.” This provision merely declares, that acts dispunishable by any pre-ex-isting law, shall not afterwards be made criminal; and that in all public accusations, arrests or detentions of the person — the laws, andthc forms 'prescribed by them, must be followed.

By the twelfth section, it is declared that “ No person shall, for an indictable offence, be proceeded against criminally, by information : except in cases arising in the land and naval forces, or the militia when in actual service, or, by leave of the court, for oppression or misdemeanor in office.” Without stopping to inquire whether at common law, it was an indictable offence, to give, accept, or carry a challenge lo fighl, S/c., it is enough to remark, that the application we are considering, involves no criminal proceeding against the applicant.— And it is clear, that neither this nor the preceding section can have any influence upon the validity of the statute of eighteen hundred and twenty-six.

It is difficult to conceive the application of the twenty seventh section, which merely declares, that .“ emigration from this State shall not be prohibited, nor shall any citizen be exiled.” There is certainly a great difference between exiling a citizen under a judgment of expulsion, and the refusal to grant a privilege or franchise, or even its withdrawal, in consequence of some act done, which the law has made a disqualification, or a cause of forfeiture. In the one case he is forced from his country — in the other, he remains — free to engage in all pursuits, but those which are authorised as public boons.

The thirtieth section declares, that “ this enumeration of certain rights shall not be construed to deny or disparage others retained by the people: and to guard against any encroachment on the rights herein retained, or transgression of any of the high powers herein delegated, we declare that every thing in this article is excepted out of the general powers of government, and shall forever remain inviolate ; and that all laws contrary thereto, or to the following provisions, shall be void.” This section is the last of the “ Declaration of Rights and was doubtless inserted ex majors can,tela— lest it should be supposed that an article intended to embody certain fundamental rights of the citizen, should be construed as yielding up others, and throwing them into the general mass of governmental powers, and even impair proprio vigore, the limitations imposed in the subsequent parts of the constitution, upon'legislative authority. It, however, serves to shew, that the “ Beclara-ration of Rights” is, what its title imports — an article to restrain, and not to extend power. The terms, “ that every thing in this article is excepted out of the general powers of government,, and shall forever remain inviolate,” inculcate that idea with all the force that can he imparted to language, and prove that the general powers of government would continue without an express constitutional recognition. This provision, then, so far from shewing that the legislature lias no warrant for the enactment of laws not expressly authorised, or necessary to give an effect to an express grant, proves its competency to adopt regulations, not repugnant to the constitution.

I will now inquire, whether the act of eighteen hundred and twenty-six, so far as it professes to operate upon attorneys and counsellors at law, is in derogation of the third section of the sixth article of the constitution. That section is as follows : “ The general assembly shall have power to pass such penal laws to suppress the evil practice of duelling, extending to disqualification from office, or the tenure thereof, as they may deem expedient.” Here is a clear grant of authority to pass “laws to suppress the evil practice of do oiling.” Had there have been a more general delegation of power, without the latter member of the section, it mjghtwcll be questioned, whether the legislature could have made an observance of the anti-duelling laws an essential qualification for office. The constitution having declared who were eligible to office, and prescribed the oath to he taken by officers, might be construed as denying to the legislature, the right to impose other disabilities or tests. But to remove all doubt upon this head the legislature is author-ised to extend the penalties of the anti-duelling laws, “ to disqualification from office, or the tenure thereof.”— instead then, of the latter member restraining the first part of the section, it should rather be taken to enlarge its meaning, and to confer a power, which, if it existed independently, was at least, very questionable. The argument, that an authority to disqualify “ from office,” excludes the idea, that the right to exercise any privilege, grantable by the public, can by law be forfeited or withheld, is, according to my exposition of the section, entirely indefensible. Privileges or franchises, not particularly provided for by the constitution, are subject to such general regulations as the legislature may prescribe.— The “ general powers of government,” without any enabling grant, concede this much virtue to legislation.— In Leigh’s case (1 Munf. R. 468,) it appears, that an act was passed by the legislature of Yirginia, requiring that after its passage every person appointed to any office or place, civil or military, under that commonwealth, should, in addition to the oath now prescribed by law, take the foiio-.vn •; orfi: {!' do PuL-uiuly swear (or affirm, as I'm „."se r.u • be) V- .t ? hr re not been engaged in a ibui, by ¡km!! o-; '\v- :'n ; a clmPer.ge to fight a due-L or by ii ^; ■ ■ -y . ■. ;; -, or in ; a / otiter manner, in violation oí'lbe r.-.l. :ij.’oti an act to suppress duelling, since the pmmge of that act; nor will 1 beso concerned, directly or indirectly, iu such duel, during my continuance in office.” In that case, two questions were raised.

1. Were attorneys at law, as such, appointed to “ office or place, under the commonwealth? ”

2. Was the act itself constitutional?

Judge Tucker, in remarking upon the second question, observes, !! On the pr esent occasion I have not felt, nor do I feci the sum lest doubt of the constitutionality of the act in question ; the object of which appears to be, the prevention of a great moral and growing evil; and the provisions of it, so far as I have had occasion to consider them, well calculated to advance the benefit of society, and suppress the evil.”

Judge Eoane observed — “ As to the question of the constitutionality of the act to suppress duelling, the fore, going view of the case renders it unnecessary for me to say any thing upon it. I do not see, however, at present, that it can be deemed unconstitutional, as it relates to the qualification of attorneys at law or counsel; unless indeed it be on the broad ground of the injustice, if not tyranny, of compelling a man to swear, in advance, that he will not, for a given time, do or forbear to do any given act, a thing which tender and scrupulous consciences, however resolved at present, might well hesitate to do.” The foregoing view referred to by Judge Roane, as relieving him from a consideration of the objection to the validity of the act, was his conclusion, that it did not embrace attorneys.

In New-York, a statute was passed to suppress dueling, which required any member of the Senate or of the Assembly, and every person who should be elected or appointed to any office or place, civil or military, except town officers; and every person who should be admitted a counsellor, attorney or solicitor of the court of chancery, supreme court, or court of common pleas, &c. to take an oath that he had not been engaged in a duel, &c. The question, whether this act was constitutional, was made in Barker vs The People, (20 Johns. R. 427,) and was determined to be an enactment clearly within the competency of the legislature. — (See also, ibid. 492.)

The statute of New-York, like that of Virginia, required a person appointed to office, &c. to take an oath that he had not been engaged in a duel, by giving, accepting, or carrying a challenge to fight, &c.; — while that of the latter state, required the party to swear, that he would not be guilty of such an act. Yet neither of these laws was considered objectionable, as being inquisitorial, in requiring an individual to declare himself guiltless of a particular act; or in other words to maintain by his own oath, his legal qualifications for a public franchise. It may be remarked, that the old constitution of Yirginia, conferred no power to enact penal laws — and the constitutions either of that state or New-York, contains no authority to adopt measures to suppress duelling.

Here we have the authority of two courts, of high respectability, to shew—

1. That a, Cíate possesses “ the general powers of government,” apart from Its constitution.

2. In the absence of any fundamental Inhibition, the legislature may test the qualifications of a party seeking to enter upon the enjoyment of an office or privilege, by requiring an abjuration of ikal which disqualifies.

3. That the validity of a statute, imposing a test for office or privilege, will not be impaired, if it annexes disqualification to an act, which does not affect the capability of the man or the officer, for a discharge of the functions of his office.

But it is argued, that the act of eighteen hundred and twenty-six, in excluding from the bar those who have, or may offend against its provisions, inflicts a punishment, both cruel and unusual, and is therefore repugnant to the sixteenth section of the “ Declaration of Eights,” and the eighth amendment to the constitution of the United States. The disfranchisement of a citizen is not an unusual punishment, at least in that country whence wc derive the most of our legal notions ; and our constitution ciearly does not contemplate it as cruel: else why should it enjoin it upon the legislature to make laws to exclude from office, <fcc., those who shall be convicted of bribery, 'perjury, forgery, or other high crimes or misdemeanors, in addition to granting the authority to enact laws to suppress “ the evil practice of duelling,” extending to disqualification from office, or its tenure ? (Cons. Art. 6, sec. 3, 4, 5.)—See Barker vs. The People—(20 Johns. R. 459.)

It is further argued, that the constitution having au-thorised a disqualification from office or place, from suffrage and serving on juries, as the consequence of conviction of bribery, &c. or other Ai¿/t <vh,-e> and misdemeanors, it is tliesvfiR ?. iucOjaj'.cti. ul Jor the logisia-ture to annex disqualification as a punishment to other ■cases and for other causes. This argument is founded upon the maxim of expressio nnius cxclusio est allerins. It may he conceded, that the enumeration of offences, ■on conviction for any one of which, power is given to the legislature to enact laws excluding the person convicted, front office, &c., is an implied negation of the right, to disqualify for any other cause of a kindred character. And the constitution having required the passage of laws, to render persons convicted of certain enumerated offences, or oilier high crimes or misdemeanors, incapable of holding office, &c. it may be well doubted, that but for tiie third section of the sixth article, whether the legislature could have incapacitated for giving, accepting, or carrying a. challenge to fight, &c., unless these had been first made high crimes or misdemeanors. So, in regard to the right of suffrage and serving on juries, it may be questioned whether the legislature may divest a citizen of these rights, for offences not embraced in the fifth section of the sixth article of the constitution; yet, in respect to serving on the juries, it has never been seriously doubted, within my knowledge, but the legislature may require the residence of a juror to be within the county, and also that he should be a freeholder or householder ; for in making these requisitions it is not intended to punish crime, but merely to insure impartiality and discretion; and the constitution, in authoris-\ing disqualification as the consequence of crime, does not impliedly inhibit these requisitions as essential to the competency of a jurcr. — (20 Johns. E. 461.)

But suppose my reasoning upon this point is false, yet the maxim by 'which the argument is attempted to be sustained, cannot be made to exert such potency as to forbid the legislature to enact laws denying privileges and franchises, subject to its own regulation, to those who have done acts subversive of the public peace, or calculated to lower the standard of public morals. For such cases the constitution makes no provision, and consequently, they are left to the legislature, uncontrolled by any implied restraint.

I am unaware of any acknowledged rule of construction which would authorise the conclusion that the convention, in prescribing an oath to be taken by “ the members of the general assembly, and,all officers, executive and judicial,” with a view to secure their fidelity and patriotism in the public service, must have intended that the same oath should be taken by all persons on whom the legislature should confer a privilege or franchise; or that in providing a constitutional oath for officers, they inhibited the requirement of any other, of persons who might exercise a legislative franchise; except such as related particularly to the nature of the function, to be performed by them. With all deference to the opinions of those who think otherwise, such a conclusion, in my judgment, can only be attained by the assumption, that the , rivilege conferred upon an attorney, makes him ipso facto, a governmental officer, at least in respect to the matter of oaths; for such only as are charged with the interests of the public, are officers within the meaning of the constitution.

If it be conceded that an attorney is not a,public officer, but insisted that be is a nasi such, by a liberal construction of the constitution, and. cannot therefore be required to take any other oath than that provided by it, unless it directly concern his 'professional duties; — I reply, that the argument still assumes too much. If he be quasi an officer, for the purposes of one provision of the constitution, where is the authority for divesting him of that character, when he is to be visited with another part of the same instrument? If he is to receive favors, shall he not also bear burthens? If he be an officer for the purposes of the first section of the sixth article of the constitution, — is he less so, when it is proposed to extend to him the third section of the same article? If so, where is the warrant for concluding that the constitution, in some of its general provision:', in regard to officers, relates to attorneys, while from others it excludes them ? Here are questions, which I confess my inability to answer. But all difficulties arc at once removed, upon the hypothesis that the functions of an attorney, and the conditions on which they are to be exercised, are subject to legislative direction.

I desire not to be understood by any thing I may have said, as asserting that it is competent for the legislature to make the giving, accepting, or carrying a challenge to fight, &c., or other offence against the laws, not really such, a high crime or misdemeanor. And as the view which I take of the question before us, relieves me from considering whether it is competent for the legislature to require of officers such an oath as is provided by the act of eighteen hundred and twenty-six, or whether disqualification should not bo raudo dependent upon a legal conviction, 1 therefore leave these questions to be decided when they shall arise in judgment.

It is further argued, that the act of eighteen hundred and twenty-six, is against common right, and therefore void. A statute, it is true, cannot change the law of nature, for jura nalurm sunt immuiabilia, and they are leges legum—Day vs Savage, (Hob. Rep. 87.) “ The law of nature stands as an eternal rule to all men,” says Locke, “ legislators as well as others; and the rules that they make for other men’s actions, must, as well as their own and other men’s actions, be conformable to the will of God, of which that is a declaration.” Lord Chief Justice Hobart was of opinion, that a law which makes a man a judge in his own case, is opposed to natural equity, and void. Lord Coke, (Bonham’s case, 8 Rep. 116,) with the boldness which marked his public career, declared that the common law would control and adjudge void, an act of parliament against common right, or reason, or repugnant, or impossible to be performed. And Lord Holt, (City of London vs Wood, 12 Mod. R. 687,) influenced by the same high sense of justice, — with a mind relying upon its own vigor, and often setting at defiance the restraints of precedent, declared that the observation of Lord Coke was not extravagant, but was a very reasonable and true saying. But Lord ‘Ellesmere, in his observations upon Coke’s Reports, calls his opinion “ a paradox, which derogateth much from the wisdom and power of Parliament, that where the three estates, King, Lords and Commons, have spent their labors in making a law, three judges on the bench shall destroy and frustrate their pains, advaming íV* ¡caro.) of a particular court above the judgment of the ¡•••ahu.” The same learned Lord recites, with tmprob.'.fon. the opinion of «'liief Justice í Serle, in the than of '• ’ a. T the ''Thrd, when he said, “Gomo achí of iCNbinr ni. : re made against law and right; whidi they that iu-'-b; themperceiving, would not put them into execution ; for it is m;ty.T congruum, that acts of Parliament should be corrected by the same pen that drew them, than he clashed to pieces by the opinion of a few judies.” AndGir William Blackstone, distinguished for the extent and accuracy of his legal erudition, says, he knows of no power, within the ordinary forms of the Drihsh constituid);!, that is vested with authority to control an act of Parliament, upon tiie ground that its enactments are unreasonable. But if absurd consequences seem to grow out of a statute, the judges ought, in decency, to conclude that the consequence was not forseen by the legislature and only quo ad hoc to disregard it.-(1 Bla. Com. 91.) That the learned commentator lays down the rule correctly, I have no doubt. As qualified by him, it is sustained by the fitness of things. When carried thus far, it maintains a proper balance between the different departments of government, and thus, by acknowledging the just powers of all, inspires each with a proper respect for the other ; and preserves that harmony so essential to internal quiet and public prosperity. It is the received opinion in Eng land, at this day, that an act of Parliament, so plain and explicit in its terms, as not to allow an application of the rules of construction, cannot be disregarded or controlled, by any court of justice.

Mr. Justice Iredell, (whose great self-possession and accuracy of judgment, entitle bis opinions to all respect,) in Calder and wife vs. Hull and wife, (3 Dal. R. 386.) after expressing tlie opinion, that a statute violative of constitutional provision is void, proceeds: “If, on the other hand, the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law within the general scope of their constitutional power, the court cannot pronounce it to he void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated hy no fixed standard: the ablest and purest men have differed upon the subject; and all that the court could properly say, in such an event, would be, that the legislature (possessed of an equal right of opinion) had passed an act, which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice. There are, then, but two lights in which the subject can be viewed. 1. If the legislature pursue the authority delegated to them, their acts are valid. .2. If they transgress the boundaries of that authority, their acts aue invalid. In the former case, they exercise the discretion vested in them by the people, to whom aloné they are responsible for the faithful discharge of their trust: but in the latter case, they violate a fundamental law, which must be our guide, whenever we are called upon as judges to determine the validity of a legislative act.” The learned judge places this question upon its true ground, and by his brief and common sense reasoning, excludes the opposite conclusion.

In this country, it cannot be endured, that the judges should declare a statute void, because, in their opinions, it is incompatible with the abstract principles of civil liberty, unless it also opposes the constitution. There is no certain standard of reference by which these principles can be determined. They must depend upon the varying opinions of various minds, and it is nothing more than respectful to suppose, that the opinions of the law-givers i upon a question of political expediency, are as apt to be correct as any other body. At any rate, the judicial, is not invested with power to supervise J;he legislative department: and it is well for the cause of freedom that it is not, or in coming time, we might witness the exercise of a judicial tyranny, more intolerant and intolerable than a legislature with unlimited powers. It is, then, my conclusion upon this subject, that to authorise the judiciary to declare an act of the legislature void, the act must appear to be violative of the constitution., or of some one of its i>ro visions.

That the act of eighteen hundred and twenty-six is defensible upon principles of the purest morality and the soundest policy, I cannot doubt, — and that it is within the range of legislative competence, I am alike confident. If that confidence were faltering, it would- be strength-éned by the reflection, that the legislature which sat within three months after the adoption of the constitution, enacted a law in principle the same, and in terms, almost to the letter, similar to the act we are considering —(Toulmin’s Dig. 264.) That in that legislature were many of those who had aided, in forming the constitution, and that both of these acts have been acquiesced in, from the periods of their enactment respectively, until this time.

Note. — The Reporter deems it proper to remind the reader, that although he has been compelled to abridge the arguments of counsel, in the above case, — -lie has not interfered with the composition or style of those arguments, in any respect whatever. The condensation which has been adopted, has only extended to the omission of such paragraphs as were ’ illustrative; and not absolutely essential to show the scope of the positions, relied on by the counsel.

I have considered the present question with the most anxious desire to attain a correct conclusion. While I feel a decent'respect for the opinions of the legislature, and a just concern for its respectability, 1 am sure I shall never he so far influenced by these considerations, as to prevent me from scanning with fearlessness and impartiality, the extent of its powers. As a man, cherishing, I trust, an elevated patriotism, I could wish to see the different departments of government kept within their legitimate spheres of action, — as a magistrate, I could know no discretion, but to follow the line of duty.

I here close the view, which the arguments submitted to the court, required me to take of this interesting question, and I think it clear, both on principle and authority, that the terms on which attorneys shall be admitted, and the causes for which they shall he disbarred, are matters of legislative regulation: and consequently, that the act of eighteen hundred and twenty-six, to suppress the evil practice of duelling, so far as it relates to attorneys and counsellors, is not repugnant to the constitution.

It remains but to declare, that the application of Mr. Dorsey for admission to the bar of this court, should, in my opinion, he denied.

Case Details

Case Name: In re Dorsey

Court Name: Supreme Court of Alabama

Date Published: Jun 15, 1838

Citation: 7 Port. 293

Court Abbreviation: Ala.