The West Virginia journal. [volume] (Charleston, W. Va.) 1864-1877, 1866-02-21

States, IN permitting CebdloIS anu hcP
rcscntatives in Congress to practice 10
that Court and still sit in their rcspec.
tive houses, which they could not have
done upon any other rulo of construc.
ton than that settled 10 the casc above
cited because the Constitution Of the
United Statos, which they all swore to
support, declares that no person holding
any Office under the United States shall
bc q member Of either House during his
continuance in Office. IF, then, an at,
torncy at low is, as conteuded for by the
contestant, an officer, and when admitted
to practice in the Supreme Court of the
United States, is an officer under the
United States, within the meaning Of
the Constitution, then he could not be
member Of either House, nor sit 10 those
bodies during his continuance in his
Office Of attorney.
TO do so would be such high ofensc
that it cannot be supposed to have
passed, uuobserved, or unthought of, BY
the many eminent lawyers, statesmen
and jurists who have habtually dono the
like from the commencement Of the gov.
ernment to the present time, without
apprehension in single instance.
Again: The act of Congress, July I'd,
1862, requiring every person elected or
appointed to any Office Of honor or pro.
fit under the government Of the United
States, either in the civil or military or
naval departments Of the public service.
excepting the President Of tho United
Stules," to take and subscribe the Con
gressional test oath therein prescribed.
has nowhere been held or contended to
include Attorneys vt Law.
The test oath prescribed by the act OF
November 10th, 1863. is almost>s trans.
cript, mutahs.mutands from the Con.
gressional test oath, with some additions
or local nature.
Iu January 9th, 1865, little less
than three years after the passage OF the
former act Of July %, 1862, Congress
passed another act supplemental to the
former act, aud so stated in the title to
be supplemental to the former, requiring
attorneys to take and subscribe the oath
prescribed in the former aes.
But one reason can be given for The
passago Of thi. latter act, and that is
that the forme, did not embrace attor.
eys aud councillors At law. Here was
con srossiou uul and legislative interprc'
ta,ion Of the act from which our test
act was taken.
And it is manifest that the Judges oi
the Federal Courts throughout the
country must have taken the same view
Of the former act, otherwise they would
have enforced it against all their attor'
ueys, and thus have prevented the neces'
oity Of passing tho latter act.
Again, the Act of l7SS, az Hen,
Stat. at large which, though proved by
subsequent legislation, and revived OF
much Of its verbosity, still stands on the
statute book, in al its subGtantlal Gle.
ments, the luv Of to day, prohibiting all
persons holding any Office Of trust under
the Uuited States government, from
holding any Office Of trust under the
Commonwealth, whether civil or military,
Legislative, executive or judicial, with the
exception that mem bers Of Congress may
bs j Justice. Of the Peace, and certain
other exceptions therein specified, among
which attotneyi arc not named nor TO-
cludei.
If, therefore, attorneys At law were
officers, A. contended for by the Assls.
tant Attorney General. no member Of
Congress, nor attorney pricticing in the
Supreme, or my Of the Circuit or Dis.
,rict Courts Of the United States, could
hold any office or trust, civil or military,
under the Commonwealth Of Virginia,
nor Of this State, nor be allowed to prac.
ticc a. m attorney 10 the Courts of either
State. Yet no such exclusion has, in a
single instance, ever been enforced since
the passage Of thut act Of lISs, even
attempted an omission so marvellous.
if not right, that i. would be difficult in.
deed to excuse or account for it.,
Were the Eact in question of even
doubtful construction, Court would
hesitate long before giving it. cous'ruc.
ton that would produce such wide
spread and serious consequences.
Again: The ordinance Of the eonven
ton Of june, 1861, which rcorganiIed
the State Government that had been
usurpcd by the rebels, required oil
" officer. 10 tue service Of the State. or
Of any county, city or town thereof to
b. elected or appointed for such service.
10 take the oath prescribed by that or
dinance."
But it was never held, or even con-
tended, that attorneys were thereby re-
ouired to take said oath to entitss them
to practice in the court, 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 the I'd section OF
which they were in express terms re-
ouired to take the oath prescribed in
said ordin:nce fcr officers.
Thus it seems clear from the lcSIsla.
ton reviewed md considered, that wher.
ever i. vas the legislative Intention to
embrace attorneys 1t Ian they are named
i. such, and when they orc not so in.