The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1867-01-22

10 change the punishment, ana to
inhict a greater punishment than
the law annexed to the crime
when committed or, Fourth, to
alter the legal rules of evidence, so
that less or different testimony than the
law required at the time of the COM
mission of the offence, might be receiv-
ed to convict the otfender-unless, l
say, it was the intention of the Legis-
ture to do, by this act, and in fact did
do, some one or more Ofthe four things
above specified, then the act is not an
er post 5dctO law within the prohibition
of the constitution.
The act in question is in the words
following: mo attorney at law shall
be allowed to practice in any court, or
before any. justice or board of super
visOrs, OF this State after the passage of
this act, until lie shall take in the court
in which he proposes to practice, in ad-
dition TO the oathS now REQUIRED by
law the following oath:
I, a. b, do solemnly swear that I
have not since the 10Th day of June,
1868, borne arms against the United
States, nor against the State of West
Virginia; that have voluntarily given
no aid or comfort to persons engaged
in armed hostility thereto by counten-
ancing, counseliug or encouraging in
the same; that l have not sought, ac-
cepted nor attempted to exercise the
functions of any office whatever under
any authority in hostility to the United
States or the State of West Virginia;
that have not yielded IA voluntary
support to any pretended government,
authority, power or constitution within
the United States, hostile or inimical
thereto; and that 1 take this obligation
freely without any mental reservation
or purpose of evasion.
l fail to see anything in this law that
contemplates a punishment for any past
act whatever, or for any of the things
mentioned in the oath itself.
1t declares no action TO be criminal
which was innocent when it was done.
1t makes no crime greater than it was
before the passage of the law.
1t neither changes punishment nor
int1Icts greater one; nor does it alter
the rules of evidence in any respect, in
order to convict an offender; therefore,
in no proper legal sense can the law
be regarded as er post JdctO: and for the
same reasons il Possesses none of the
requisites necessary to constitute il a
bill of pains and penalties.
While the statute, if sustained, NAV
operate an Inconvenience, and even
hardship TO these applicants, and others
similarly situated, 1t is nevertheless a
remedial and not a penal statute II is
manifeStly retrospective in some of its
bearings, for it relates to attorneys that
" Clc SIGlA lACNAOGS ~ AA4G duAG vi AAS
passage, and refers to actions done by
them antecedent thereto. Statutes are,
pT-ind fdcie, prospective in their opera
tions;and 1t ought never to be presumed
that the Legislature intended to enact
retrospective laws when the words will
admit of any other meaniug.-(Elliott's
Exs. rs. Lydell, Call. 26S.J
1 think that by no fair Interpretation
can the words employed be made to
have an exclusive prospective opera
ton. The expression NO attorney at
law" has the same Specification as not
any attorney at LdV. In other words,
the effect of this statute is, to require
eUeTy attorney at law, regardless of his
former rights and privileges, to take the
oath therein prescribed,-if he did not
take it he could not be allowed to prac-
tice. A different construction would
render the law totally Intellectual as a
remedy for the evils which called it into
existence. These evils have already
been adverted to. The evident inten-
ton of the law-mRker was TO guard
the public against n class OF persons
who occupy a semi-official position,
clothed with privileges not enjoyed by
the private citizen. For by the very
nature of the relation of attorney and
client, the latteris compelled to entrust
the former with the most sacred inter-
ests, affecting property, character, and
even life itself; having no assurance
for the attorneys fidelity, other than
his license to practice-which is a Ger
tificate by the court that its possessor
is person of moral and intellectual
worth, and OF that high character for
honor and integrity that entities him TO
the confidence of all needing profession
al aid.
The Legislature has thought it dan
gsrous TO the welfare of society, to con-
tinue to the attorney his privileges as
such, who, by voluntary completely
with the rebellion, is unable to take the
oath prescribed by the act in question.
1t is a statute-not to punish the attor-
ney-but TO protect society, and to
keep free from reproach the profession
of which he is a member. This being
then a remedial act is not uncOnstitu-
tional because of its retrospective opera
tion. tCont. Is. Hewitt, II. q VI. ISL
Our next inquiries are, does this
statute impair the obligation of con-
tract, and does it deprive a party of
property without due process of law?
Neither OF the applicants has been Ii
csnsed in this State as an attorney, and
there Is no proof of either having been
licensed in another State. Whatever
may be our individual and unofficial
knowledge that each has been a prac-
ticing attorney in the courts of Virgil
mia, this knowledge is not prooE-we
cannot take judicial notice of the fact
and so far as any fact under the mo-
tiOn is required toinvoke a construction
of the constitutional merits of the
statute, it must be proved.
1t is the duty of the Court, in a mat
ter of such gravity, to proceed with
strictness. Although the Attorney
General has confined himself to the
discussion OF the validity OF the act of
February l4th, 1866, do not under
stand him as having conceded this
proof, except argumentatively. The
applicants, therefore, seveFally stand
as unlicensed, and, to be admitted to
practice within this State, must comply
with l, or ,, of chapter I64, of the
Code, page 699-as the case may be-in
order to qualify themselves to be sworn;
whether the proper oath be that pre-
scribed in z 3, same chapter, only; or
this and the oath prescribed in the act
of February 18th, 1866. Then If the
Court was to act strictly upon the proofs
before it, with prOpriety it might be
said, there Is nothing presented in this
application which raises construction
of the last named act. But let US as
sumo that each OF the applicants has
produced under his motion, a license
duly issued 10 him in Virginia, to prac-
tice in her courts. The license is a
license to practice in the courts of Vir-
ginia, and, by its necessary import,
can of itself have no extra territorial
operation.
As the territory OF the State might
from time to time be enlarged, or by
the formation of new States be con-
tracted, so the territory covered by The
license would be expanded or contract
ed. A different construction would
give to the license an operation broad
er than its terms, and enable the State
Of Virginia 20 impose upon any new
State, thereafter formed out other terri
tory, legal profession against the poll