The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1866-02-07

Saturday last, having by a majority
Judges Berkshire and Brown) decided
that the, act, ofrSoyembep 10 1853, does
not apply to attorneys, Judge n. Har-
rison dissenting from this decision, de-
livered the following opinion: II
E5 Pdrte.
saoHARLEs JAafEs FAULRNER.
This is a motion by the Hon. Charles
James Faulkner, of West Virginia, to-
be admitted to the bar Of this Court,
without taking the oath prescribed by
the act of ofNovenberl6, 1868, (see Session
Acts of 1858, ch. do6l page lSs.l Ihat
act provides, that every person elec-
ted or appointed to any Office of trust
civil or military, shall, before proceed
ing to exercise the authority or discharge
the duties of the same, take the fol-
lowing oath: sci ABB y do Ysolemnly
swear that will support the Constitur
tiou of the United States, and the Con-
stitntion of this State: that / have never
voluntarily borne arms against the
United States; that have, voluntarily,
given no aid or comfort TO persons en-
gagged in armed hostility thereto, by
co1ntenancing, counseling, or encour-
aging them in the same; that
tempted to exercise the functions
of any, Office fwhateyer,r under any
authority IN hostility to the United
States; that have not yielded volun-
tary support to any pretended govern
ment, authority, power or constitution
within the United States, hostile or
iuimical thereto; and that take tins
obligation freely, without any mental
reservation or purpose OF evnslon."
Before proceeding TO the main inquiry,
whether an attorney at law is an othcer
within, the meaning of this statute,
there is a preliminary question to De
settled; whether the applicant from
his own showing is entitled to be adj
mitted to this bar. either with or with I
out taking the oath. He claims admlS-
sion as a resident lawyer of this State,
under a license obtained more than thlr1
ty years ago topfactice his profession IN
the Courts of Virginia. In his learned
SndS 5,l5Ie opinion in the Quarter case,
(pape n Judge Polsley remarks: The
4th section of "an ordinance" passed
June 10. 1851, after enumeratipg a long
number of officers, (among which at
l'torneys are not meniioned,) proVldes
that none of them shall proceed TO DIS
charge theluties of their several offices,
until they take an oath to support the
Constitution of the United States and
| tn nnhold and defend the government
of Virginia as vifdicated and restored;
by the Convention which assemoiea AT
Wheeling on the llth day of June, 1861.
On the lUI0 QaY vi 4CS>t
being doubted whether attorneys were
such officers as come within the pur-
view of the ordinances referred 70, the
legislature of the Commonwealth or
ViT1fnid, (meaning the Legislature
of the Restored Government1at Wheel
ing,) passed an act which took ettect
on IT'S PASSAGE; providing that
before an attorney, who is q resident of
this State, shalt be permitted to prac-
tice his profession in any county oil TINS
| Commonwealth, he shall be requtred 10
take and subscribe the oath prescribed
for officers, by the ordinance aioreSald.
There is no proof before this Court,
nor does the law presume, that the
| applicant ever complied with this re-
otlfrement. lItlwas'a a condition prece-
cedent TO his right to use license pre-
Yiously granted, and without which,
had he applied for admission To the par
of any Court of this State, whist that
course, have been refused. In practice
at least, If not in law, he was no longer
an attorney, until he took that oath.
It was test of fealty to the Govern
ment which the Legislature had right
TO require, and which the applicant as
an attorney was bound to take. Upon
his falling to do so, or rather, during
the continuance ofsuch failure, his Ill
/ ..ense became suspended or abeyed, un-
~ the Act of February; 1852 was conf
niitSd with, and until that act
Il. shown to have been compiled
with, he cannot be- treated tpy Inns rs
ConTt. . even as a, licensed lawyer in
VITlinia. nnder'a license whose opera
tion was thus suspended, nor can he be
raeornIzed -as--an- attorney at this Dar
funder anyIIicense until heNhas fpeen re-
lIhnbilitatsd or Jfe4ltcensed as such, ac-
cording to the provisions OF sections I
| and, SEof the Code ofc Yifgfnia,g page
ts;e. Which prescribe the mode OF pro-
ceeding in snch cases. My opinion is;
ths.t i1s must either be licensed de aouo,
or show that his original license, once
suspended or abeYedi ts again 1ntorce.
Besides, admitting the. validity or that'
license in VfFgfuia, IN order 10 give II
anv validity in this State, he would have
TO show that he was not only dlt5y ~
eensed, but practising tt'ideT Stieh k4cstlse,
ss counsel or attorney in the, State OF
VirRiniA (which has not been SHOWN.
See Code of Virginia, page 500, sec; 3.
am. therefore, .lof-optnion, that Ar.
FanIkner,Iost his status, as a,NirginiaI
LAWYER by failing 10 take the oath pre-
scribedi iby.the act of February 10. 1867,
and that there is nothing in the record
which restores that stains or ,whtch.
shows that he is now a properly ilicens-
ed attorney, eitherthsre or hsre, accord
2nd.r Assuming theIappiicant 70 pc
| duly licensed as an attorney, Is he
bound .as.snct, before he can properly
\ be admitted, at this bar, TO take the oath
/ prescribed by the act of November 10
/ is6SP This question turns entirely up
I ON the construction of the term "oft1-
/ cer," in its application to attorneys-at-
| law. Is an attorney-attIaw an otieerf
| Is he an; officer of trust Is he, u ctvil
/ or military officer? Is he an othcer ell
| theri elected or appointedf h Upon the
| answer TO these questions must depend
1.-THE fate OF this motion. ~ n2eissls s.a1 = E.
/ An attorney, says Bacon, one set
\ in the place of another, and Is etltteS
| r,Ii6ltc. as an attorney y-dt-tdtp whose war
! rant Is tails 19O5sit loco SIto tdteH5 dttoI'ld-
[ t1t,I,7 or private, who has authority gtv-
| an him TO act in the place and stead OF
him by whom he is delegated. 1
! Again--sThe person here treated oIis
| an attorney ae law, tVIo IS dppotnted 70
tnrosecute and defend for his client, and
4 cousidered as an officer belonging 70
there are several statutes and sresolh-
\ lions. See /, Bacon,s abr, page 4l4
title Attorney, sd BIaekstone's Com
i25 % i. Cunningham's Law Dict. 1ItlE
1 e itorney, Burns Law ID. page69,
lI7.snt'a Com. S06 TO sos. 5az1slaii
49Sba definition and classification o.
4 ae5cors generally, viii be found IN z,
4 !f5acoTf's abr. 279, 2S0-tiue, once anG
l 5fScers. From this may he dea1ced
fIst i9Hnt, sfhe 1ro11d o5see lcgtetttna
i i1noFtstt dug or trust, =;
81. T1at all oD5sefs are e1ttser eipit O. 2,
u,iIitary, pgbIie or p Eig5te, deeoa
the Ratiie p thsir seDeEdt fEllS -.
3rds Tidt ereTy nam - q
iEho hath GgIy ~. Ne o9,e.s, 5Ss.s
A. -, Sf5r.-;f,s IL ol,ffaed to 1adTf0t