The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1866-03-07
RATFs on sUBscRIPTIoN.
TIES OF 7ADyBRTIsING.
- TmE COURT OF APPEAI!s.
Their Decision in the Case of Hon.
Charles James Faulkner---Letter
from n Distinguished Legal Gentle

/ from n DtstInSutSheN Lesnl SehtAe
man. sIsHis}4.7F ,lsrn i'fI a5 BON
Editors IHteLtlgencer:: l-,i4i i.,.+ - :
I have read the opinions of the Couri
of Appeals published in your pnper Of
February Sth, in the Faulkner and
Quarter cases. The majority of the
Court announced it as their duty to de.
clare the law as it is, and forthwith
proceed to declare it as it is not.
As to the Faulkner Case. II is singu-
lar that the President, with his usually
excellent Judgment, should have gone
SO readily and SO clearly astray. He
remarks, at has been so long and SO
| eLeaTLU established as the opinion Of epeT5
one m this STATE, that he tcdS not an on
Ger, bidt no one has presumed TO question
il since 1902 thai IS TO. Sdyj in the lst
| Mumford's Rep. in 1910 on the motion
of BENZ. Watkins Leigh for admission
to the bar of the Supreme Court of Ap-
! DenIS of VifEiniath that Court so dec1dedi
| the question had not previously, nor
| has it since arisen before that Court
and this decision has since in Virginia
| been regarded as the correct exposition
| of the law in that State. Beyond this
the remark of the learned Judge has no
force. BY .'the opinion Of eUGTy o7le," "
he probably meant the opinion of the
| bar. But professional opinions are not
the ruling interpretations of the law:
They are to be found only in recorded
l. II Is GuS lAiiNSlOh VI -
Court to reduce to reliable certainty the
irresponsible and floating views oil
popular or professional impressions.
| But tho decision of the Courts in
Leigh's case is based, not upon any
thing peculiar to the law or practice
in Virginia, but upon the gener-
al laws and practice-yet ignores
the entire law and practice as found in
| England and the other States of the
| Union from the earliest date; and is
| directly in the face of an unbroken line
of legislation in Virginia extending
back nearly two hundred years. The
case was one of an er Tdrte motioni ana
| the Court were divided in their judg-
ment. The Judgment, if sound, would
by all students be classed among the
| weakest of authorities or precedentS.
But it is unsound; it can abide no fair
! and intelligent criticism: with the single
exception of the case in 20 Johnson's 8
| New York Reports hereafter mention
| ed, is wholly unsustained by principle,
| precedent or practice; it is manifest
| error; therefore the only correct INFER
ence is or can be, that, had the question
again arisen before the same Court Tin
| Virginia) Leigh's case would have been
| oyeTruled; for. as it is the function and
duty of n Court to Interpret the tdI, MS
| LdLD: so, if. it has erred i'll this, tits It's
| duty unon tho question again coming
| befSre IL to correct its error. If 1t may
not originally commit the error; when
discovered, il may not perpetuate the
error. Else by misdeclaring, 1t would
easily come 10 altering the law, and
there would be no limit to this usurpa-
tion of the legislative function. SHrety
The hilheSt C0trt Of our STATE tEdS not
called upon to adopt as ttS glttde the JH-
Ciici6L error OF a sister STATE. AGAIN :
whatever the laws may have beeL Wheu ll
Leigh,s case was decided, ana whiteYer a.
were the merits of the decision, IT was
| nullffied by the Revised Code adopted
| in Virginia in 1920, which prescrloeS.
to tho attorney an "OuM oT oDleeI /.
and treats his status as that
of an officer, and as nothing
else. This statute continued till lSoO,
when it was re-enacted in what is
known as "the code of 1860, and the
latter is in force now in that State, Il
The act of February 10, 1862, of the
| ReorganiZed Government of Virginia, /,
is SO explicitly and plainly the same
way, thatiJ would seem as ifone could
not read it, and have n doubt.
But where does the learned Judge
find authorityfor his remark, 'the tphote
practice of The officers Of the United
States from its foundation TO The present
| time Shotps that an attorney IS not an ON
eer." A most extraordinary remark
The Federal Constitution requires that
st all officers of The United States, aud Of
90 the several States lfpOn their admission
! '' to office, be required to take The oath TO
I 20 St,pjIOrt that Constitution" Since its
| adoption, the uniform practice in the
Stntes has been to administer this oath
1 TO attornies with their oaths of office
1pon their admission to the bar. The
Supreme Court of the United States at
its first session, which was in FeDrunry,
100, adopted a rule requiring all attor-
news and counsellors of the Court to
take the oath so prescribed in the Con-
stitution, and this forthwith became the
rnle of the Circuit aud District Courts
of the United States. In the 1st of Hop.
kins' Rep, on the motion OF Daniel
Wood to be admitted to practice in the
Court IF Chancery of the State of New
York, the Chancellor OF that State
| (Sandford) decided that the applicant
must be sworn in under this provision
| of the Federal Constitution. Chaneel-
| lor Kent in the 1stvol. ofhis commenta-
ries, enumerntes among the ''I1T1Helpdt
ot7fcers Of tie Federal Coulfs, attorney, ,,I
4 Ee0yYilSelIorS, mdrShdLS aud clerks" There
is n o instance of Federal legislation to
the contrary; and Congress in its Act oil
January 25th, 1885, from which our
fest oath is copied, in prescribing the
oath to Attorneys and CounseilorS OF
those Courts, provides, among other
penalties that II falsely taken, q Shdtt
Il II
| the latest expression from the General
| Government Upon the subject
] NJ js strange that Judge Brown with
his matured experience should nave
4 cot so readily and so clearly astray. 1t
| is not necessary TO notice in detail the
/ errors that peryade his opinion. a
notice of several OF his positions will
sufficiently exemplify it. OF Leighs
ease he SAYS, " that II trds I.ighttutS
,deAermined, is confirmed 6y the I,nEtn9
If kJEa G0ttrt IA Neaoi York in the 20 John
sons Rep" This case arose upon an
ex parte motion, and was decided py 8
divided Court-a weak authority at the
best. Was the learned Judge unaware
that the Court in the 20 johnson was
an inferior Court? That wits nm a yeail
after, its Judgment was condeUo oned py
the highest Court of Judicature IN ina
Statef and never afterwards tho uSni
worthy of mention in any reported ar,
gument or decision in that State? anf
that since then till now the law has
there in the, highest Court been in more
than ten successive cases held dif1erent-
ly-the question arising in many vari-
has no value IN New. York. Can it
then have any value out of that State ?
| Should 1t have had any value to the
mind of the learned Judge7 Leigh's
case must be sadly in need of support,
If such aid must be invoked for it.
1 -A0diT: the learned Judge remarks
| that sit cannot be SUCCESSFULLY contTddiet-
/ ed that, IN one Se1aSe, an attorney Is an
oMeer''-does not claim that he is pri-
/ that he is not a public officer. Was n
third kind of officer ever heard of in
any civil polity "a sort of mixture of
| the two. neither the one nor