February 14th, 1866,

Decision Date31 January 1867
Citation2 W.Va. 122
CourtWest Virginia Supreme Court
PartiesFebruary 14th, 1866,

1. The act of the Legislature of West Virginia, passed February 14th, 1866,

in relation to the oaths of attorneys at law, is not unconstitutional.

2. A pardon granted to rebels from the Federal Government, restores the

parties to the rights and privileges held or derived from it only. There fore, no attorney can be admitted to practice his profession in the courts of this State, without complying with the terms of the act in relation thereto.

Andrew Harder, Samuel Price, W. S. Sammers, Samuef Miller and Caleb Boggess applied at the bar of this courts at the July Term, 1866, for admission to practice without being required to take the oath provided by the fact of the Legislature, passed February 14th, 1866.

Some of the applicants produced pardons from the Executive department of the Federal Government.

Judge B. L. Berkshire was a member of the court at that

Be it enacted by the legislature of West Virginia: No attorney at law shall be allowed to practice in any court, or before any justice or board of supervisors of this State after the passage of this act, until he shall take in the court in which he proposes to practice, in addition to the oath now required by law, the following oath: "I, (A. B.) do solemnly swear that I have not since the twentieth day of June, eighteen hundred and sixty-three, borne arms against the United States, nor against the State of West Virginia; that I have voluntarily given no aid or comfort to persons engaged in armed hostility thereto by countenancing, counselling or encouraging them in the same; that I have not sought, accepted nor attempted to exercise the functions of any office whatever, under any authority in hostility to the United States or to the State of West Virginia; that I have not yielded a voluntary support to any pretended government, authority, power or constitution within the United States, hostile or inimical thereto, and that I take this obligation freely, without any mental reservation or purpose of evasion." time, and in consequence of Judge Harrison''s illness, Judge Loomis, of the VI. circuit, was called to the bench. The matter was elaborately argued by the parties, and by their counsel, at that term, but no decision was had until January Term, 1867, when it was determined by President Brown and Judge Loomis, Judge Berkshire's term having expired.

Charles J. Faulkner appeared for the applicants.

Attorney General Maxwell and B. F. Stanton resisted. Mr. Stanton said:

The applicant, Andrew Hunter, presents himself to the court and asks the privilege of practicing at this bar, without taking the oaths prescribed by the law of February, A. D 1866, which requires all attorneys who propose to practice in the courts ot this State, to take an oath that they have done nothing in aid of the late rebellion smce the 20th day of June, A. D., 1863.

The facts upon which he bases his application are as follows:

1. That he was duly licensed to practice law in the courts of the State of Virginia in the year 1824.

2. That he practiced as an attorney in the courts of Virginia from his admission to the commencement of the late rebellion, in the spring of 1861.

3. That in May, 1861, he was elected to the House of Delegates of the State of Virginia, and served out his term of two years, during which the State legislature, of which he was a member, disclaimed any allegiance to the Government of the United States, and recognized the supremacy of the Southern Confederacy.

4. At the expiration of his term of service in the House of Delegates, he wras elected to the Senate of Virginia, and served a term of two years in the Senate, while Virginia was a State of the Southern Confederacy.

5. As a member of the Senate and House of Delegates. he took the oath of allegiance to the Southern Confederacy.

6. He does not come within airy of the exceptions to the the President's amnesty proclamation of May 29, 1865. He took the amnesty oath prescribed by the amnesty proclamation of President Lincoln of December, 1863, and Presb dent Johnson's proclamation of May, 1865.

7. The State of West Virginia was admitted into the Union as a State on the 20th of June, A. D., 1863.

8. The applicant was never admitted to practice in the courts of West Virginia, nor in the courts of the restored government of Virginia.

Upon this state of facts, Mr. Hunter claims the right to practice law in this State without taking the oath required of lawyers in this State to practice in the courts of the State, passed February, 1866.

It is claimed in the first place that by a just construction of this law, it does not apply to lawyers practicing before its passage.

But the whole scope and spirit of the law is so manifestly intended to embrace all lawyers who propose to practice in the State, that the applicant manifestly places but little reliance on this proposition. The law says that "no attor-ney-at-law shall be allowed to practice in any court, or before any justice or board of supervisors of this State, after the passage of this act, until he shall take in the court in which he proposes to practice, in addition to the oaths now required by law the following oath."

But if this were so, Mr. Hunter never was admitted to practice in the courts of West Virginia. And I propose hereafter to show that he is not entitled to practice in this State by virtue of his license to practice in the State of Virginia.

But the applicant relies mainly upon the proposition that the law of February, 1866, is unconstitutional, because it is ex post facto, is in the nature of a bill of attainder, impairs the obligations of a contract, and divests vested rights. To this I reply:

1. That the presumption is always in favor of the constitutionality of any law upon the statute book. It will never be presumed that the legislative department of the Government has transcended its powers, and passed a law in violation of the constitution which the members of the legislature were sworn to support. If, therefore, upon a full consideration of the whole question, the court is in doubt as to whether the law is in violation of the constitution or not, the decision must be in favor of its constitutionality.

2. But I hope to be able to relieve the court of all reasonable doubts on the subject, and to show beyond cavil and controversy, that the law is clearly and plainly a constitutional and valid enactment.

The case depends upon the nature and character of the rights acquired by an attorney by his admission to the barr and the power of the legislature and the courts over him in his official character as an attorney.

I deny that an attorney by his license acquires any rights that are not subject to the absolute dominion and control of the legislature, and the courts in which he is authorized to practice,

It is important to any just and accurate conception of the questions involved in this application to understand precisely the relation which an attorney occupies towards the court, the law and the community.

They have been recognized as an essential part of the machinery for the administration of justice, as an indispensa-* hie appendage to the courts as far back as we have any traces of the common law.

We find them recognized in the acts of Parliament in England, as far back as the reign of Henry HI. In the4 20th year of the reign of Henry IIL, they were authorized to appear for persons owing suit or service to the court leet, or the court of the manor.

From that time there are frequent recognitions by act of Parliament, in the shape of laws conferring authority upon them in special cases, prohibiting certain offences, &c., fee.

In the fourth year of Henry IV, for the first time, a roll of the attorneys practicing in each court was required to be kept in the courts in which they practiced From that time to the present, not only Parliament, but the courts in which they practiced, have exercised the most unlimited control over them.

The history of the State of Virginia is full of instructive precedents on this question. Very soon after the settlement of the colony a struggle commenced between the planters and the lawyers, which continued for more than a century.

During that period numerous laws were passed regulating the mode of admitting lawyers to the bar, prescribing the oaths they should take, regulating their fees, punishing them for misconduct, taking illegal fees, &c., &c., in which the colonial legislature exercised the most unlimited control.

in 1642, a law was passed requiring all attorneys to be licensed, and regulating their fees. 1 Henning Statutes, 275.

In 1645, a law was passed expelling all attorneys from office and prohibiting them from practicing in the courts. 1 Henning Statutes, 305. At the same session a law was passed repealing the law authorizing attorneys to be licensed. 1 Henning, 313.

In 1647, a law was passed prohibiting attorneys from taking any fees or practicing in the courts, and requiring the courts to manage causes for weak parties who could not manage them themselves, or to appoint some person from among the people to manage them for them. 1 Henning, 849.

1656, the law expelling "mercenary attorneys" was repealed, and the Governor and Council were required to appoint attorneys for the quarterly courts, and the commissioners to appoint them for the county courts. 1 Henning, 419.

The next year, 1657, a law was passed prohibiting any person from pleading any cause for gain or profit, under a penalty of 5, 000 pounds of tobacco. 1 Henning, 482.

At the same session a law was passed expelling all lawyers in the colony from the bar. The Governor seems to have made strong scruple about signing it, and said something about.magna charta, and quite a contest ensued be- tween the House of Burgesses and the Governor, in which the House finally triumphed.

So the matter remained for twenty-three years. In 1680...

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23 cases
  • In re [67 W.Va. 214]Application for license to Practice Law
    • United States
    • West Virginia Supreme Court
    • March 15, 1910
    ...The general effect of this legislation has been a subject of judicial determination and interpretation by this court. In ex parte Hunter, 2 W.Va. 122, 152, Judge Brown "Again, attorneys have been the unquestioned subject of legislative control by the British Parliament from the reign of Hen......
  • In Re Application For License Topractice Law.
    • United States
    • West Virginia Supreme Court
    • March 15, 1910
    ...in this record. The additional power of summary suspension or revocation of license is not necessary for such purpose." In Ex parte Hunter et al., 2 W. Va. 122, 144, Judge Brown said: "The license, of itself, and before admission or induction by the court, does not constitute the holder an ......
  • State ex rel. Quelch v. Daugherty, 15784
    • United States
    • West Virginia Supreme Court
    • March 30, 1983
    ...or admit, on application for admission, or to dismiss, after admission, for misconduct or unfitness of character ...." Ex parte Hunter, 2 W.Va. 122, 182 (1867). However, as a result of legislative and constitutional modifications, the dichotomy of authority to regulate the practice of law, ......
  • State Rd. Comm'n v. Kanawha County Court
    • United States
    • West Virginia Supreme Court
    • April 12, 1932
    ...almost the same language in one of the first cases decided by this court, Ex parte Stratton, 1 W. Va. 305. It was repeated in Ex parte Hunter, 2 W. Va. 122, 161, and has never since been questioned in this jurisdiction. See, generally, 12 C. J., supra, §§ 157 and 167; Cooley, supra, pp. 354......
  • Request a trial to view additional results

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