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
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,
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
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
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
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 reser
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
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
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 in
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
I have arrived at the conclusion, (satisfactory to myself at least,) that the authority to pass disqualifying
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
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
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
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.
— 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
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.
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
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 refer
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
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.
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
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
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
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..
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
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
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
' 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.”
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
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
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.
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.
— 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.
' . 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
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
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
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 li
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-
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 constitu
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
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.)
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.
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
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 alto
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 con
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
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 com
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
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
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 con
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.”
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
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—
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 suf
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.
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 dis
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
In this country, it cannot be endured, that the judges
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.
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.