Ex Parte Charles J. Faulkner. November16th, 1863

Citation1 W.Va. 269
PartiesEx Parte Charles J. Faulkner.
Decision Date31 January 1866
CourtSupreme Court of West Virginia

An attorney at law is not an officer within the meaning of the act of November 16th, 1863, and is not required to take the oath therein prescribed for officers.

Charles J. Faulkner applied at the bar of this court to be admitted to practice herein without taking the oath* prescribed by the legislature, November 16th, 1863, claiming that an attorney at law was not an officer within the meaning of that act.

Mr. Faulkner in support of the motion, after some preliminary remarks of a general character, said: The question before the court was, whether an attorney at law, duly licensed according to the statutes of the State, and in all other respects qualified, may not rightfully claim admission to the bar of West Virginia, without taking the oath prescribed by the act of the 16th of November, 1863?

That act provided that" every person elected or appointed

*Be it enacted by the legislature of West Virginia:

The first section of the act entitled "An Act concerning oaths and affirmations," passed June 26, 1863, shall be amended and re-enacted so as to read as follows:

1. Every person elected or appointed to any office of trust, civil or military, shall, before proceeding to exercise the authority or discharge the duties of the same, take the following oath:" I, A. B., do solemnly swear that I will support the constitution of the United States and the constitution of this State; that I have never voluntarily borne arms against the United States; that I have voluntarily given no aid or comfort to persons engaged in armed hostility thereto, by countenancing, counseling or encouraging them in the same; that I have not sought, accepted nor attempted to exercise the functions of any office, whatever, under any authority in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power or constitution within the United States, hostile or inimical thereto; and that I take this obligation freely, without any mental reservation or purpose of evasion." to any office or trust, civil or military, shall before proceeding to exercise the authority or discharge the duties of the same, take the following oath." It was unnecessary to read the oath. It was sufficient to say, that it was not an oath of allegiance, nor of fidelity; not designed to purge the person taking it from any present or subsisting disloyalty, nor to secure fidelity to the government in the future; but an oath, retroactive in its operation ex post facto in its requirements, and punitive in its effects. It was designed to operate as a disqualification and punishment for supposed past offences. No conscientious man can take it, who at any period of the war, has had any direct connection with the late insurrectionary movement. Wherever, therefore, it is construed to apply to such attorneys and is enforced, it is a practical revocation of the attorney's license, a disqualification to the practice of his profession.

The simple inquiry, therefore, is, does the act embrace attorneys at law? If it does, the court will enforce it, if they regard it constitutional. If it does not, the court will not by judicial legislation, extend its application. Courts sit to administer, not to make laws.

The persons required to take the oath are civil or military officers. It is idle to discuss the question whether an attorney is a military officer, we are therefore narrowed to the inquiry, is he a civil officer? If he is not the law does not apply to him.

The term " civil officer" is of frequent occurrence in English and American statutes. Its meaning has been distinctly ascertained by this use for the last two centuries. It is found in the statutes of Great Britain, 25 Charles 2, ch. 2; 7 and 8 William 3, ch. 24; 13 William 3, ch. 6. In the constitution of the United States, 4th section, 2nd article; in the laws of Congress, July 2nd, 1862, January 24th, 1865; in the statutes of Virginia, November 24th, 1794, January 7th, 1818, January 16th, 1819, and in the constitution of West Virginia, article 3rd, sections 4, 5, 6, 10. In all these eases where the term is used, it describes a person deriving his authority from the government, directly responsible to and receiving his pay from the government, and concerned with the business of the government: wherever used, it always by necessary implication, and in some instances by express legislative declaration, excludes an attorney at law. See Story's Commentaries for the meaning of the term civil officer as used in the constitution of the United States, from section 399 to 407; 1 Bouvier Law Dictionary, civil officer; Cunningham's Law Dictionary, title officer.

The act of the 16th of November, 1863, is not to be construed as an independent statute, but as the 1st section of the act of the 26th of July, 1863. So construed, it explains itself, and shows the officers of the State Government which it was the purpose of the legislature to embrace within its provisions.

Wherever the question, whether an attorney is a civil or public officer has been submitted to the courts, the decision in the tribunals of last resort, has been without any exception, that he is not a civil officer. He referred to Leigh's case, 1 Munford, 468, which being a decision of the supreme court of appeals of Virginia, was authoritative and binding upon this court. To the decision of the supreme court of New York, 20 Johnson's Reports, and to a recent decision of the supreme court of Kentucky, Tenney's Case.

The doctrine that an attorney is not a civil or public officer is recognized in the daily practice of the circuit and supreme courts of the United States. If an attorney was an officer, how could such men as Webster, Clay and Pinckney, whilst senators of the United States, and Sergeant, Binney and Hardin, whilst members of the House of Representatives, practice in those courts? The 6th section, 1st article of the constitution, declares that "no person holding any office under the United States shall be a member of either house during his continuance in office. If the qualification of an attorney in the circuit or supreme court of the United Stedes is to hold an office under the United States, how could they become members of the Senate and House of Representatives? and further, how could they continue to practice in the supreme court, whilst holding their seats in those bodies?

This long established practice by the most eminent expounders of the constitution is a conclusive view of this subject Attorneys at law are officers of their respective courts in England, whether they are officers of the courts in Virginia might admit of some question. Still the point may be conceded without detriment to the application before the court. The re-organized government of Virginia, as the British Parliament had done before, and as the Congress of the United States has done since, has discriminated in the imposition of its oaths, between civil officers and attorneys at law, substantially declaring that attorneys at law are not civil officers: Ordnance of the 19th of June, 1861; act of the 10th of February, 1862.

William Ware Peck, for the State.

1. The act of November 16th, 1863, is to be construed in the light of surrounding circumstances and of its purpose. The principle is familiar and requires no citation of authority.

2. It is essential to protect the public offices from being filled with a disloyal element, and so exposing the State to usurpation. This is not a test, but an important criterion, under the enquiry, whether the law is as wide in its scope as is claimed. It is morally obvious that the legislature intended to cover a particular case; but it is claimed that it does not come within the provisions of the statute; and again, mischief would result from a narrow construction; the court will incline to a liberal construction to effectuate the legislative intent and to guard against the mischief; and the inclination will strengthen with the mischief: Sedgwick on the construction of Statutes and Constitutions, 213; 18 Vt.; opinion of judge D. Polsley, in Quarrier case, October term, 1865, Kanawha circuit,

3. It has been the uniform and immemorial practice of the European governments to apply test oaths to revolutionary movements. The Federal government and the loyal States generally have adopted the principle. The present test oath is a copy of the Federal test oath, with the addition of an oath to support the constitution of this State.

4. The applicant states on the argument that before the organization of this State, he was licensed to practice in Virginia and that the reports of that State have his name as counsel in various causes.

Assuming that his name so appears in the Virginia reports; that does not necessarily indicate that he appeared there other than ex gratia, nor is any evidence beyond that point.

Assuming that he was regularly licensed to practice, in the absence of proof that he has taken the oath prescribed by the act of February 10th, 1862, (pp. 69 and 70, Acts of 61 to 63), it must be assumed that he has not taken it; and that it expired under the operation of the act. He could not practice under it there: how can he here?

If his license survived this act, it expired as to the territory of this State on its organization, it being only a license to practice in the courts of Virginia; and this whether it conferred an office or only a franchise.

It is then but a foreign license, and could avail him on application by him only on proof that he is now practicing under it in Virginia; sec. 3, Code, page 699. The section probably applies only to non-residents, otherwise residents, unable to comply with section 1, would evade it by obtaining licenses in other States. The application must be made under sections 1 and 3 of the Code, same page. Therefore he has not qualified himself to take the oath...

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9 cases
  • State v. Nibert
    • United States
    • West Virginia Supreme Court
    • 4 d2 Junho d2 2013
    ...to that time the Attorney General exercised his inherent common law authority to appoint assistant attorneys general. See Ex parte Faulkner, 1 W.Va. 269 (1866) (discussing the position of assistant attorney general in the case). 51. Our conclusion also is supported by an attempted amendment......
  • State ex rel. Rist v. Underwood, No. 26653
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    • West Virginia Supreme Court
    • 3 d3 Novembro d3 1999
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    • 15 d2 Fevereiro d2 1927
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    • 28 d4 Maio d4 1992
    ...Browning v. Jarrell, 156 W.Va. 256, 192 S.E.2d 493 (1972); State v. Hansford, supra; Ex parte Quarrier, 2 W.Va. 569 (1866); Ex parte Faulkner, 1 W.Va. 269 (1866). In State v. Boyd, supra, the Court examined at some length what constitutes misbehavior of an officer of the court in his offici......
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