The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1866-07-16

VA ALC SACGkAOL anu AOA IAlahbISA VA
the State of West Virginia, by ]. Mar
shall Hagans, Esq, to which We refer
red day or two since. We ask our
readers to give the article an attentive
perusal, feeling confident they will be
amply repaid for the labor. We shall
continue these extracts in to-morrow's
issue; in the meantime We beg our
readers indulgence for these long ar
ticles this intensely hot weather.
THE session of the Court of Appeals
has been thus far principally occupied
with the applications oftwo prominent
participators in the rebellion, for leave
10 practice in the courts of this State
without first taking the oath prescribed
by law. They have been using many
words more or less ingeniously to show,
that the law requiring them TO purge
themselves of any voluntary completely
in the rebellion, is unconstitutional.
They are still to be heard further, we
presume, and others like them are to
follow. Attorney General Maxwell
made reply to the arguments thus far
advanced, on Saturday afternoon.
While it was an unpretending speech,
and lacking somewhat in the force that
might have been thrown into it, yet it
was sound and strong, and as to the
weight of authority, certainly quite the
equal of the citations on the other side.
The point especially sought to be made
by Messrs. Hunter and Price, who have
thus far spoken, is that the law is pc
nal enactment, operating retrospective
= ly as an eL post jdctO statute. They have
argued against it mainly as such an
enactment. This would-be point of
theirs was we'll met by the Attorney
General in the course of his speech, by
citingthe opinion of the Supreme Court
of California in the case of Cohen Us.
Wright, delivered since the rebellion
broke out. In that opinion the court
held that
''The exclusion of the attorney from
the practice of his profession by this
law, similar to ours is not because he
has committed any crime, nor is it in
the nature of a punishment for any
criminal offense. The right to practice
law is not constitutional right, for it is
recognized or established by it. 1t is a
mere statutory PriviLege, not rising to
the dignity OF an office, except in a very
limited sense, as we have already
shown. This privilege is, by the stat
ute granting it, extended to all persons
who comply with certain conditions.
Before the passage of this act the condi-
tons were, that he should be white
male citizen, of 81 years of age, of good
moral character, possess the necessary
qualifications of learning and ability,
procure n license from the court to
practice and take the oath prescribed
by the law. This act does but change
the character and form of one of the
former conditions, and requires the
oath to be taken in the amended form,
upon the noncompliance with which he
is prohibited from practicing. 1t is not
a crime for him to decline to comply
with this new condition, by re-
taking of it is now made a
prerequisite to the exercise of the priv
ilege. If the effect of his refusal is to
exclude him from practice, it is a result
caused by his own voluntary conduct.
In no sense IS IL a punishment, for the re-
fusal to take the oath is not made
crime. a person may thus refuse who
has never been guilty of any treasona-
BILE act, and has no intention of that
kind; and if he is prevented from prac-
ticing 1t is by his own voluntary course
If there Is any punishment in this, it is
self imposed. a person who Volun-
tarily locks himself up in prison and
refuses to turn the key to let himself
out, could with as much reason com
plain that he was deprived of his liber-
ty without due process of law in viola
ton of the constitution. We do not
see how this conclusion can be avoided
unless IL can be shoLCn that traitors IL, act
and intention hare constitutional right
10 practice LdID."
By authorities such as the above quo
ted opinion, the Attorney General very
pointedly met and turned the argu-
ments of his two opponents in regard
to our statute prescribing an oath being
a penal enactment. The privilege to
practice law is like every other privi-
leHe-every other vocation-subject to
the legislation of the State. If in the
eyes of the law-making power it is dam
gerous 10 the public veal that a certain
set of men should practice law in our
courts, it is competent for that power to
protect the public veal by prescribing
an oath that shall search out and set
apart that class of men. In the esti-
Vi L46 Va ShAllOILla,
and in that of both the Legislature and
people of West Virginia, lawyers who
have UoIuntdrily been engaged in the re-
bellion are a dangerous class to REIN
state in the courts. Now we take it for
granted that it is quite as competent for
our legislature, backed by the whole
body of the people, to say that partici-
pants in the rebellion shall not be re-
instated in positions dangerous to the
welfare of the State as it is for such
persons to claim the privilege against
this overwhelming public judgment.
All of us know that no class of men in
West Virginia were SO deeply response
BILE for secession and all its conse-
quences, as the lawyers. The talent and
position of the bar in this State were on
the side of the rebellion. The minds
Of the people. were powerfully
impressed by this influence, and