The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1866-02-05

0eNS, aull stuuo hhfO
cessity of passing the latter act.
Again the Act of 1873, 12 Hen. stat
at large which, though proved Gy SUP d.
subsequent legislation, and revised VI
much of its verbosity, still stands on the
statute book in all its substantial eie,
ments, the law of today, prohibiting all
persons holding any office OF trust
under the United States government
from holding any Office or trust under
the Commonwealth, whether civil or
military. legislative, executive OF Judic,
ial. with the exception that members OF
Congress NAV be Justices of the Peace,
and certain other exceptions therein
specified, among which attorneys arc
not named nor included. !.
If, therefore, attorneys at law were ON
GERS, as contended for by the Assistant
Attorney General, no member OF Con
gress, nor attorney practicing In the Su,
preme, or any of the Circuit or District
Courts of the United States, could hold
anv Office or trust, civil or military, IN
der the Commonwealth of Virginia, nor
of this State. nor be allowed to practice
as an attorney in the Courts OF either
| State. Yet no such exclusion has, in
single instance, ever been enforced since
the passage of that act of 17Ss, or even
attempted; an omission so marvellous, II
not right. that it would be most difficult
| indeed to excuse or account for 1t.
Were the act in question OF even doubt
tul construction, a Court would hesitate
long before giving it construction that
would produce such wide spread and Sc
rious consequences.
Again: the ordinance of the convention
Of June, 1861, which recognized the
State Government that had been usurped
by the rebels, required all Officers in
in the service of the State, or OF any
county, city or town thereofto be elected
or appointed for such service to take the
oath prescribed by that OIL dinance."
But it was never held, or even contend
ed that attorneys were thereby required
to take said oath to entitle them to
practice in the courts of the restored
Government of the State. Neither were
they required to do so by the courts, until
the Legislature passed the Act of Feb.
10th, 1862, by thecd section of which they
were in express termsrequired to take
the oathprescribed in said ordinance for
officers.
Thus it seems clear from the legiSla-
ton reviewed and considered, that
wherever it was the legislative intention
to embrace attorneys at law they are
named as snch and when they are not
SO intended, they are not named and are
not included By the general terms 'all
officers elected or appointed" sc.
Viewed, therefore, in the light of past
legislative and judicial construction, so
generally acquiesced in, it would seem
to be the settled understanding from a
very early period of our history that at
torneys at law were not officers under
the government, either State or national,
elected or appointed. within the meaning
of any Of said acts relative to officers
civil or military
But on the contrary, that they we're n
profession or class sWi-generis, and
though called officers in one sense, and
sometimes officers ofCourt, get meyer in
the sense Oh these acts, nor intended to
be embraced by them.
1t is we'll settled principle, admitted
on both sides in the argument that in
giving construction to any statute,
the Legislature must be understood to
have used terms and set phrases in the
sense, in which those terms and phrases
for long years prior had been understood
and received IN relation to particular
subject
With such understanding, universally
acquiesced in by our own people, the act
of November 10th 1863 was passed, with
out naming attorneys passed in the
light OF the express decision of the
highest tribunal in the State standing
undisturbedi and unquestioned as the
law Of the land and the only rule of
construction in such case. Can that
statute so passed lie now construed by
any other rule Of Interpretation than
that so long and well settled and so uni
versally recognized and acknowledged
1t can not he on any principle of rea-
son, .jnstice or sound policy And the
construction contended for by the as
sistant Attorney General, is still more
untenable. when it is remembered that
the act, though perhaps not strictly
er post fdcto is penal in its nature and
retrospective III its operations and
should therefore lie construed strictly,
yet it is sought to make it embrace at
torneys when they are not named
1t seems to me to be impossible to
give the act in question such construc-
ton with such surroundings and such an
tecedents, or even to harbor a suspicion
that solitary member Of the legislature
that passed it even dreamed, mach less
beliered, that it embraced attorneys
see no reason, therefore, in the second
objection, to authorize this Court in re
fusing to permit the applicant to qualify
and practice as an attorney and coun-
| sellor in this Court upon his taking the
oaths required by law, viz: the oaths to
support the Constitution of the United
States and of this State, and the OATH of
Office of an attorney.
But it may be asked Ii an attorney is
not an officer elected or appointed with
in the meaning of said act, how is it he
is required to take the oaths to support
the Constitution Of the United States
and of this State
1t is answered, that by the Sd sec. of
chap. 164, Code 1860, every attorney is
required to take the oath of fidelity to
the State, the form of which is pre-
scrlbed by the lstsee of chap l3; and by
the Act of June Goth, 1868, chap Is of
the Code, is repealed, and the form of
the oath of fidelity made to correspond
with the requirements of the Constitu-
tion of the new State, which is the oath
to support the Constitution of the United
States and the Constitution of this State