The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1866-06-20

would purge himself and prove his in'
nocence by his own oath. ,-.r.~ss4r
1t has been ably argued that Inc e eIS
IN question is in violation OF the oIn
section of the ID article of the constita,
ton of this State, viz: mo persSeni ;fa
time of peace shall be deprived Oh I as,
liberty or property without due proeefSs''
Of law" Ill "a
Due process of law has been Wen sou
tied to be the adjudication by some coGlV
of competent iurisdiction-not leglsia-
tive condemnation See 1st Kent
The right of an attorney to practlee
being derived from the State by grant,
though franchise, is of yalue 1t is II,
reyocable except for the causes stateu
in the statute 1t is property, III Is his
means of support. as much property "
him as the tools of mechanic are prop
erty to their owner.
Nav it not then we'll be considered
that to deprive him of that franchise OF
value, that grant, without due process
of law. is in violation of the provision
of the constitution referred toF
The opinion obtained in Virginia, as
far az this court is advised, is that it was
not competent for the Legislature to pass
apy law imposing test oath without
authority from the constitution.
By the constitution of that State
Usi9) sec. II. article 3rd, authority was
given the Legislature to provide by law,
fhat no person should be capable OF
holding any post of profit who shonla
thereafter fight or engage in duel. bGt
by the same section of the same article
of the constitution it was also provided,
that no person should be so dlstran-
chised by reason of his having thereto
fore fought or engaged in duel, mani
testify q clear intention to avoid a retro
active effect, which would have been
obnoxious to the constitution OF the
United States.
The Attorney General relies upon the
decision of the Supreme Court of APP
peals in this State, in the case OF -,
in which, as it is said, that court decided
the law imposing the test oath as appil-
ed to officers was constitutional. ms
court very much regrets that it has not
the report of that case before it; for,
apart from the legal duty, it would DO
the pleasure of this court to respect and
obey the decision Of such high author
ity.
In the county Of Wetzel, in this cir
cult, upon the application of Ewing,
who had been elected Recorder OF that
county, and who applied to be qualified
without taking the test oath, for the
reason, as he alleged, that it was uncon-
stitutional; and not because he could not
take it. Upon this application, and be-
e. 1, in Snnrnmn
Court, this court held the law to be con-
stitutional as to officers and required
the Recorder elect to take the oath. lie
acquiesced in the opinion of the court,
took the oath-hence the question in
that case did not go up. But take the
case as stated, this court cannot con-
ceive that it settles the question or sheds
any light upon it. The officer elected
must accept the Office as he finds it with
the then existing legislation in force,
The law imposing the oath was in
force at the time he proposed to accept
the office. But how different it would
have bean if prior to the enactment of
that law he held Grant from the State
to enjoy the Office for life or for term
of wears, and after the emanation of that
grant the law should have been enacted
prescribing an oath that was not required
when he was qualified and that he could
not take. To enforce such an oath would
simply have been lesislating him out of
office; which, to say the least of it,
would have been anomalous The same
court. however, decided in Quarter s
| case that an attorney was not an officer
within the meaning OF the law and was
| not bound to take the oath.
Whatever doubts may be, II any, over,
| hanging the question rs TO the cOnstitu-
tionality of the act under consideration,
this court does not think that there can
be any question as to the effect Of the
pardon granted by the President to the
applicant, and the amnesty given him
for his participation in the rebellion.
The act in question relates directly to
the rebellion and visits upon those con
nected Herewith the oath prescribed by
| that act. which IN this case works for
fixture of his license.
Now, if the applicant engaged in the
rebellion, it was treason against the gov
erument of the United States-all minor
offences, if any, growing out OF the same
| act We're merged IN the greater offence
| treason 1t Will not be denied that by
the I'd section of the ID article Of the
| constitution the President is invested
with power to grant reprieyes and par
dons for offences against the United
States, except III cases of impeachment"
his power upon this subject is more fully
defined by an act of Congress passed
| 18th July, 1862, which provided
That the President is hereby author,
| led at any time hereafter, by pIocla
nation, to extend to persons who may
have participated in the existing rebel.
lion in any State or part thereof, par.
don and amnesty, with such exceptions,
and at such time, and on such condi-
lions, as he may deem eXpedient for the
public welfare"
We also have the interpretation of
President Lincoln as to his authority :;
he claims that as President and Com
mander-n Chief of the army and navy,
he is clothed with the laws of war in
time of war.
| In pursuance Of this authority, 80 de-
rived from the constitution and the act
of Congress, the President did issue his
amnesty proclamation granting pardon
upon the terms and conditions therein
contained, which the applicant in this
case has complied with.
The 1st section Of the lst article of
| the constitution of this State declares,
"The Constitution of the United States
and the laws and treaties made in pur-
| suaDCa theraOf oh III no +I,o cu,ro,,o / -