FEBRUARY 1812.

#### Administrators of Byrne *vs.*Adm’rs of Stewart.

«ase lv.

An act of the dSaringthat the state practise law, or solicitor^is not officer has his must conform to the law.

[Tried before Chancellor Waties, Charleston,

February, 1812.]

THE question in this cause arose upon a rule taken out in the above case against Charles Lining, to shew why another solicitor should not be substituted in his place for the defendants, on account of his being ordinary of Charleston district, and disqualified as from practising as a solicitor by an act passed by the Legislature m December, *1811.*

^ aPPeare‘d that Mr. Lining was admitted to the bar in the year 1774 *;*was appointed ordinary in February, 1783, and res 'ed the practise of an attorney and solicitor in 1786.

Mr. PRINGUE, Mr. Ford and Mr. Simovs argued against the rule.

I have not been furnished with any note of Mr. Pringle’s argument.

Mr. Si^ioks.

The question depends upon the construction of the 2d sect, of the 9th art. of the constitution.

*“*No freeman of this State shall be taken, or impri- ■ soned, or deprived of his freehold, liberties, or privi-ledges, or allowed, or exiled, or in any manner destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the law of the land j nor shall any hill of attainder, ex post facto law, or law impairing the obligation of contracts, ever be .passed by the Legislature of this State.” This is the solemn declaration of the rights of the people of this State.

Rules for the construction of the constitution.

*iC*The construction if merely literal must be pernicious | it must be a sound and liberal exposition, animated by the same spirit which dictated the constitution.

, *“*The trust is most important, and pre-supposes great virtue in the functionary entrusted.

« Without virtue the institutions to be protected by the constitution cannot exist.

*467What were the objects of the convention in borrowing apd enlarging the 29th article of Magna Carta ? Not to limit a monarch, for we had none 5 but to check the powers invested with sovereignty.”

To prevent the legislature from legislating upon any but general and public principles, which would embrace the governors as well as the governed,” to forbid partial laws.

“ When therefore a law is repugnant to these principles, though it may wear the face of public law, it invades the constitution.”

When consistent with these principles, though it may seem to interfere with the letter, the law is still constitutional.

There is no danger from this, power in the Judges, It is a shield, without a sword.

Examine the article.

No bill of attainder or ex post facto law shall ever be past. Definition of ex post facto law, by Blackstone.

*“*When after an action indifferent in. itself is committed the legislator for the first time declares it to be a crime and inflicts a punishment on the person who has committed it.”

All lav/s must in some degree have an ex post facto relation. Laws of primogeniture. But the odious, principle is the having a special victim.

Words of the constitution : “ Attainder is the penalty of capital punishments, therefore ex post facto laws were added in the constitution, for attainder is ex post facto.”

“ Whatever therefore operates generally on the citizen before the act lias been declared a crime in ail, is-ex post facto 5 acts pro re nata,”

Among the .Roman ex post facto laws, were denominated privilege or private laws.

The terms of the constitution are emphatic: « at any time, in any degree.”

See the act of the legislature : The effect is to deprive Major Lining- of his profession,”

*468Private, supposing it to affect the whole class of ordinaries, but here it makes a victim of Major Lining.

Suppose the law had declared that Mr. L. should forfeit his estate if he continued in office ?

pfhat cannot be done directly shall not be done indirectly.

Effects of the principle.

“ Nihil est crudelius, nihil perniciosius, nihil quod jtninus has civitas ferre possit.”

Odious in a monarchy, a canker in a republic.

No freeman of this st ate shall be taken or imprisoned, or deprived of his freehold liberties, or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty, or property, but by the judg-. ment of his peers or the law of the land.

1. Shew the interest of Mr. Lining.

Surely not such a freehold as mentioned in the constitution, that is a freehold inland, nor such an office, that is an office of profit, or trust under the state.

But it is such an office as constitutes an incorporeal he-reditament.

2 Blackstone, 36.

Magna Carta, art. 29th, ordains that no person shall be deprived of his freehold, &c. but by the judgment of his peers, or according to the law of the land, which does not only relate to common disseizins *;*but the King may not otherwise seize into his hands the freehold of the subject. Wood’s Institutes, 614.

Privilege.

Attornies at common law have privileges. They acquire their right to practise under particular statutes, and by virtue of diplomas.

Property. Industry and faculties are most valuable property in a republic.

The constitution copies and enlarges 29th article of Magna Carta. 1 vol. Beeves, 249.

Against whom was the constitution intended to pro-*469$ect the citizens, not from individuals, for the laws were sufficient$ but from public bodies.

Examine the effect of the law.

He was in the enjoyment of his office as ordinary and profession as a lawyer. Their tenure was lawftil. The act itself implies its lawfulness.

By the 1st section of the 3d and 2d of the 5th, he can be removed only by impeachment, and by the 2d section of the ninth article, his profession can’t be taken away.

But this law makes it necessary to surrender one or the other.

Mr. Ford.

Since this rule was moved yesterday, I have given to the question it embraces some consideration, not enough to enable me to discuss it in a manner answerable to its importance, though sufficient to satisfy my own mind of the manner in which it ought to be decided.

I could have wished indeed that circumstances had admitted of a little’more time for investigation, more especially that I might have been enabled to present the argument in a manner correspondent with the expectations of the Court.

But it was a case under every circumstance admitting of no postponement. To several suitors in this Court it would have operated a delay or impediment of justice *;*and to a free citizen of this country, it would have operated a suspension of those precious liberties and privileges which she purchased by her revolution, and which are guaranteed to all by the sacred charter of her constitution. It is a question of no common import, that now comes before the Court. If in the constitution of the Roman Commonwealth, the whole republic felt concerned in an invasion of the rights of one Roman, citizen, however humble and obscure, has much more in our truly republican government, where those rights are better defined, more zealously guarded, and more peacefully enjoyed. Here indeed the rights of one are the rights of all. The enjoyment of thy liberty is a pledge to me, that I shall possess mine. Our privileges *470are all bound up in one common bond, not one of which can be withdrawn without shaking the whole mass. Upon this union depends their safety. These are embodied in the constitution which is committed to the judiciary like the holy fire, to the Vestal, to be preserved pUr0 an(j enth»e. Here it is that the last civil stand for the constitution must be made. Other departments of the government may act thoughtlessly and unadvisedly without full time to deliberate, without the aid of discussion ; but here in the tribunals of justice, their acts, arc liable to be brought emphatically to the touchstone of the constitution, which the judges are sworn *“*to preserve, protect and defend.”

When an act of the legislature is brought into com-, petition with the constitution, the task imposed op. counsel is delicate, and on the court painful. Far be it from me to ascribe to our legislature even an indifference, and far less hostility to the great principles of the constitution, I am sure they did not intend to invade it; and if incautiously they have done so, I firmly believe they will be amongst the foremost to rejoice that means yet remained to avert its consequences. Here read from 1 Cranch, 176.

1. Position that an ordinary isa judicial officer, and lias cognizance of causes in an inferior court.

I will not go into thé books for proof and illustration of this. They are Ml, but rely on our own acts of assembly.

The 1st clause of the act of 1789, expressly calls them judges of the Court of Ordinary of this state. Pub, JLaws, 491.

The XVI sect, of an act of the same session implies it by giving an appeal from their " judgment or sentence” to the Court of common pleas. P. L. 489. See P. L. 472.

2. Position. That an attorney and solicitor of the Courts of law and equity in this state are public officers, constituted under the laws of the state and vested with rights and interests of which they cannot be divested. *471'except by a trial by their peers or by the law of the land.

The stat. 3 Ed. 1 C. 29, (P. L. 28,) provides for their being silenced and imprisoned for any manner of deceit or collusion to the guile of the Court or the party, « and thereof be attainted,” meaning convicted.

This statute was passed in the year *1275,*under a Prince who made several stretches of arbitrary authority, yet he did not provide punishment without prosecution and conviction.

« And it is the right of all persons, plaintiff or de-mandant, tenant or defendant in all actions real, personal or mixed, to appear by attorney.” 1 Corny. *■446.*

A great variety of statutes have been passed in England, to declare the powers and duties, and prescribe the qualifications of attornies.

If an attorney be retained, his authority continues to the end of the cause, and no other can intermeddle without his consent or death, and after he accepts the warrant, he cannot refuse to be the attorney of the party. 1 Corny. Dig. 443.

An attorney is an officer of the Court and is punishable in a summary way $ 3 Black. Com. 25. X Corny. 444.

An attorney has divers privileges. 1 Corny. *405.*His privilege is the privilege of the Court.

But it is needless to go into all the English law, relative to the office of an attorney at law or solicitor in Equity, because we have sundry statutes of our own, on the subject, and which go to establish this position.

They are exempted from the statute of 28, Ed. 1, C. II, against maintainance, made of force, P. L. page 30, and may take a fee for his counsel or pleading.

But if a person be poor, the judges shall appoint attorney and attornies for the same poor persons and all other officers requisite and necessary to be had for the speed of the said suits which shall do their duties without any reward for their counsels help and business in the same.” St. II. H, *7}*C. 12. P. JL, g. 44,

*472What other class of citizens is there in this country ant* under our free constitution, whom the Court and the Public Laws can thus command on duty in the service of another without compensation ? Not one. From what source can this liability thus to be disposed of arjsej what foundation for it ? Surely no other than that they are the officers of the Court, public officers over whose time and services the law assumes a controlling power.

And if an attorney be appointed by the Court and refuse to undertake the defence, he shall be silenced, and disfranchised. Pub. Laws, p. 387. I shall recur to this word “ disfranchised” afterwards.

This would be enough to establish that attornies and solicitors are public officers. But instead of any tedious detail of the statutes, I will specify the features of the office.

1. They are appointed by authority of the law.

2. None can be appointed but those who possess the qualifications fixed by law. P. L. p. 116 and 363, 81, 2.

3. He must take the oath of allegiance and the oath of office. Ibid.

4. Their compensation is fixed by law in like manner as other public officers.

5. They are officers of justice, and are classed amongst other public officers in the books. See 4 Corny, dig. 289, Office E.

6. There are sundry public offices that are declared by law to be incompatible with the office of an attorney, which they are forbidden to exercise.

Public Laws, p. 271, 5,10. « Sheriff, under sheriff, sheriffs, clerk, or other sheriff’s officer.”

Id. S. 15. Clerks of the Courts of Lawr.

But all these offices were prospective j not one officer so intended to be disqualified was as yet nominated or appointed. (See the title.)

Conclusion. That the office of ordinary is a judicial office *•,*that of an attorney a public office.

*473And each bath a freehold in his office. See 5 Bac. Abr. 200.

Now to put a person out of either of these offices is to disfranchise him.

The Legislature have themselves expressly said so. Recur to Public Laws, p. 387.

How is a freeman to be disfranchised ?

The ISth article of the Constitution will answer the question.

Lex terree has been solemnly adjudged, to mean the common law, and acts of Parliament down to the time ot the time of Ed II. Vid. Zylstra vs. City Council. 1 Bay, 384.

Now let us test this act of the legislature by this article of the constitution and the principles already established.

Before this constitution was made, Major Lining held two offices, ordinary, and attorney and solicitor.

He had exercised them for many years; they were neither incompatible of necessity, nor declared so by any law.

Not of necessity, because the office of an attorney and solicitor of the superior Courts of this state hath from the earliest times to the present day, been exercised by persons holding judicial offices in inferior tribunals.

Justices of the peace and of the quorum, recorder of the city of Charleston, master in equity, (judicial office) and ordinaries of the districts.

Attornies were every year appointed by the legislature justices of the peace and of the quorum.

The constitution found all these offices united in divers persons and left them so. *

And no law has declared them to be in their nature incompatible.

And here it ought to be remarked that the law having declared certain offices incompatible with that of attorney, amounts to a legislative declaration, that others, are not so j expressio unius est excksio altering.

*474is the constitution then a law to the legislature ? The veiT 9 th article on which we rely declares so.

Can then the legislature pass a law to oust a citizen 0f his franchises without crime, without accusation, without trial by his peers ?

Can they annex a new tenure to a judicial office and declare the office vacated for want of it, when the 3d ’article of the constitution declares «the commission shall be held during good behaviour.”

An attorney atlaw has been an ordinary'for 28 years, • and now the legislature declare that if he continue to be .an attorney, he'shall forfeit his office.

As well might they declare him to forfeit his office if iie continue a'planter.

Practice and acquiesence fixes the constructive compatibility of the two offices. And practice and acquiescence have even been adjudged to fix a construction of the federal constitution, by the superior Court of the '-U. S. See-Stuart v. Land. 1 Crancli, 299. Seo 309.

In the case of Huger and Osburné, 1 Bay, 198, judge Burke intimates strongly his opinion that there is between the state and its officers a contract by which the state is to be bound, notwithstanding legislative acts.

Our Courts have often done justice to individuals contrary to the acts of the legislature.

In the case of the State v. *Gaillard; 1*Bay, 492, they allowed a discount that was barred by-a positive act of 1786. P. L. p. 405.

•In the case of the master of this Court, it was decided contrary to a positive act that ordered the appointment of a commissioner, that the master could not be so superseded. See the decree of the Chancellors in the year 1800,

Refer to the luminous exporition of the chief justice of the IT. S. on the question how far the Courts are bound by an unconstitutional law, in the case of Marbury v. Madison. 1 Cranch, 176.

Can the legislature pass a law to prevent a man from *475being1 admitted an attorney? Can they pass a law strike an attorney off the rolls without trial ?

Mr. Smith, in support of the rule.

There is a distinction between.the constitution .of- this State and that-of the United States. The constitution, of this State lias all power not taken away *;*that of the U. States no power not delegated.

The profession of an attorney is neither an office or a freehold.

The 8th article of the- constitution shews the profession is no freehold.

1 Cranch, 179.

The Santee Canal case..

3d, Blackstone, 24.

The argument of Mr.. Lining’s counsel would pre* elude the passage of every law.

?’;ajor Lining may still retain the office of ordinary.

Chancellor Waties, after taking time to deliberate, delivered the following judgment,:

A rule was taken out in this case against C... Lining,. Esq. to show cause why another solicitor should not be substituted in his place, for the defendants- on account, of his being the ordinary for Charleston district, and disqualified as such from practising as a solicitor by an-ací passed in .December, 1811.

The defendant shewed for cause that the act of the legislature which restrains him as afores&id, is void, because it is an expost facto law ; and that it is also void because it deprives him of a right of freehold,, without. the judgment of his. Peers,, or any law authorised by. the constitution.

OPINION OF THE COURT.

It lias been correctly said in the argument that the. question for the Court in this case is not whether the act. complained of is a just and proper one, hut whether the legislature had a right to make it? The power and the, duty of the Court to declare an act void, which violates ''"any right of the citizen secured, to him by the constitU’ *476tion, have been admitted on both sides, and I feel so strong a sense of this duty, that if the violation complained of was manifest, I should not only declare the act void *;*but in doing so I should think that I rendered a more important service to my country th:m I could by discharging the ordinary duties of a Judge for many years.

It is the peculiarand characteristic excellence of the free governments of America, that the legislative power is not supreme; but that it is limited and controlled by written constitutions, to which the Judges, who are sworn to defend them, are authorised to give a transcendent operation over all laws that may be made in derogation of them. This judicial check affords a security here for civil liberty, which belongs to no other governments in the world *;*and if the Judges will every where faithfully exercise it, the liberties of the Ame-ran nation may be rendered perpetual. But while I assert this power in the Court, and insist on the great va- ■ Hue of it to the community, I am not insensible of the high deference which is due to the legislative authority. It is supreme in all cases in which it is not restrained by the constitution ,• and as it is the duty of the legislators as well as of the Judges to consult this and conform their acts to it, so it ought to be presumed that all their acts are conformably to it, unless the contrary is manifest. This confidence in the wisdom and integrity of the legislature, is necessary to ensure a due obedience to its *authority;*for if this is frequently questioned, it must tend to diminish that reverence for the laws which is essential to the public safety and happiness. I am not, therefore, disposed to examine with scrupulous exactness the validity of a law. It would be unwise to do so on another account. The interference of the judicial power with legislative acts, if frequent or on dubious grounds, might occasion so great a jealousy of this power, and so general a prejudice against it, as to lead to measures which might end in the total overthrow of the independence of the judiciary, and with it this best *pres**477servative of the constitution. The validity of a law ought not, then, to be questioned, unless it is so obviously repugnant to the constitution, that when pointed out by the Judges,, all men of sense and reflection ip. the community may perceive the repugnancy. By such a cautious exercise of this judicial check, no jealousy of *it*will be excited, the public confidence in it may be promoted, and its salutary effects be justly and fully appreciated.

I will now examine, consistently with this general view of the subject, the constitutional objections which have been made to the act under consideration. And 1st, it was contended, that this is an ex post facto law, because it deprives the defendant of the right of prac-tising as a solicitor while he holds the office of ordinary, which it was lawful for him to do when he was appoint* ed to that office, and which he has continued to do ever since. It mast be admitted that this is, in one sense, a retrospective operation of the *law;*but this is not the technical and appropriate meaning of an expost facto law. It appears from the best authorities, that the words ex post facto, when applied to a lav/ refer only to crimes and penalties. J udge Blackstone is explicit on this subject: *“*The making of laws ex post facto,” says he, “ is when after an action indifferent in itself is committed, the legislature then, for the first time, declares it to have been a crime, and inflicts a punishment upon the person, who has committed it.” 1 Black. Com. 46.

If we look into the constitutions of several of the other states, we shall find that this restricted sense of the words expost facto is expressly declared to be the only sense in which they are understood. And in. the case of Caulder and wife v. Bull and wife, determined in the Supreme Court of the United States, the same construction was given to these words by all the Judges.

The constitution of the United States declares that no state shall pass any bill of attainder, ex post fac-to law, or law impairing the obligation of contracts, (which are the very words of our constitution,) and *478JlldSe ^^erson in delivering his opinion in- the case, asks where is the necessity or use of the latter words, if a law impairing the obligation of contracts becomprc-hended within the terms ex post facto ? It is obvious x from the specification of contracts in the last member of *^.¡e*cjause ^at the framers of the constitution understood and used the words in their known and appropriate signification, as referring only to crimes and penalties. However injurious then the act complained of may be to the interests of the defendant, yet the constitutional objection to it, as an ex post facto law, has no foundation. / It was further contended that the office of' solicitor was a public office, and being for life, was an incorporeal freehold, of which by the second section of the ninth article of the constitution, the defendant could not be deprived but by the judgment of his peers, which means a tidal by jury, or by the law of the land, which means the common law.

It is not necessary, in the view whch I have of this case, to consider what is the true meaning of the words, “ the law of the land,” as intended by our constitution. It may not however, be amiss to observe for the sake of' information that it has been determined by the Constitutional Court, in several cases, that the lex terra Contemplated by our constitution, not only means the common law, which is unquestionably the sense in which it is understood in Magna Charta, (according to all the commentators upon it) but also comprehends all acts of' force at the time of making the constitution, so that any act which then abridged any of the privileges secured by the constiution, may be considered as constitutional exceptions to the privileges themselves.

I will now proceed to consider the objection which has been just stated. This at first had great weight with me, not because the office of solicitor is a public office, for this does not appear to me to be the case. He is not appointed by the legislature, nor is he amenaable to it, for he does not possess any portion of the public authority. His admission to practice is indeed. *479'regulated by law, but it is in the power of any wan, who will comply with the legal requisites, to become a •solicitor, independently of the will of the legislature. He can be considered in no other light than that of a private agent for the citizens of the country, who may ■employ him to do their legal business in the *Courts;*and although the law requires of him certain qualifications, and he receives a license from the j udges, yet his office is no more a public one than would be any other profession or trade which the legislature might choose to subject to similar regulations, and which is the practice in many other countries. But the objection of most weight is, that this act as it affects the defendant, will deprive him of a right which may fairly be considered as a species of property. It cannot be doubted that a man’s trade or profession is his property ; and if a law should be passed avowedly for the purpose of restraining any member of this bar, who was not a public officer, from exercising his profession, I should declare such a law void. But this law is made for public officers *;*it is a general regulation for all the ordinaries in •the state, its object no doubt was to place a high judicial office above temptation *",*and I think it a very wise and salutary object. For although the correct and upright conduct of the defendant in the exercise of both his judicial and professional duties, might have afforded ■sufficient security for the same correct conduct in future, ■and might have entitled him to an exemption from the general restriction of this law $ yet it must be admitted ■that cases may occur in which the duty of the Judge might be exposed to strong temptations, from the interest of the practitioner ; and the corruption of human nature does not permit us to expect the same integrity in every other ordinary in the state. The act has without any exception in his favor, restrained every ordinary from practising as an attorney or *solicitor;*and surely the legislature was . competent to pass such an act. Has it not a right to prescribe to a public officer the duties he shall perform, and to make any requi»sir *480^ons *‘me that ^ pleases ? *It*has by various acts reduced the fees of many of the public officers, ami it *ias increased the labors of some so as indirectly, by increasing their expenses, to diminish their salaries. But these acts are not therefore invalid, although they effect ¿jiC rjg.jj^s 0f office much more directly than the act under consideration. For this does not deprive the defendant of any right which was attached to the office of ordinary, as an official privilege. The profession of a solicitor never was an appendage to it. This act has indeed declared them incompatible, and therefore, requires that the ordinary while he holds his office shall not practice as an attorney or solicitor. The operation of it will no doubt oblige the defendant either to renounce his profession or resign his office. But I must repeat the distinction already made ; this act does not abridge the rights of a private citizen $ it only imposes a restraint on a public officer. ith respect to the former, the legislative power is distinctly limited by the constitution, hut the exercise of it towards the latter must from the very nature of its relation to it, be necessarily allowed a greater latitude. It is *to*be hoped, however, that the legislature will never require from a public officer a greater sacrifice of his ease and private interest than the public interest indispensibly demands, for no government can ever be ably and faithfully administered, unless those who administer it, are encouraged to a cheerful discharge of their duties, by a reasonable assignment of them, and a liberal support. But the act complained of is not fairly exceptionable even in this respect $ and as it does not appear to me in any view of it to be inconsistent with the constitution, the rule against the defendant must be made absolute.

Thomas Waties,

There was no appeal from this decree.