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


Ject. Whether they are in fact, restric-
tons, Will be considered hereafter.
1he license granted under the COM
/ nohWealth, and this State, have SIM
Ply authorized the licensees to practice
IN the courts OF the State; be-
ing silent as TO the tenure of attor-
neyship, conforming in this to the stat
ute, and conveying in this particular.
the same construction. The first gem
eral statute providing for the appoint
| Inent OF attorneys, or (as may say Nor
the organization of the legal profession
in England, is the 4th Henry 4th, chap.
Is, in the year l402, q stat at large
page 54S, authorizing the Judge to ap-
point attorneys on proof OF proper
/ character and attainments, expressed
! in these words:
ALSO for great damage and mischiefs
I which have ensued before this time To
I divers persons of the realm by the
| great number of attorneys, not know
ing nor learned in the law as they were
/ wont to be before this time-it is or
dained and established, that all attor-
neys shall be examined by the justices,
and by their dIscretious their names be
| put in II roll, and such as be good and
received, and sworn well and truly, to
I serve in their offices
and other attorneys shall be put out By
the discretion of said justices,
! and II any such attorney be hereafter
notoriously found in default, of record
or otherwise, he shall torswear the court,
and shall never after be received to
make any suit, in any court OF the
King" the act being silent as 10 tenure.
Our code, L !, chap. l64, page 699,) is the
! same in its idea. In this particular the
English act remains in iorce, and the
! practice of the English courts, which
shall presently allude to, is evidently
hos EaH IL . Al
vests right in the attorney to continue
practice, it must impose a reciprocal
duty to remain in practice. II he may
not, on the one hand, be stopped in his
practice, at the will OF the State, he
may not, on the other hand, withdraw
from it at his own will. Yet, was it
ever doubted, that the attorney might
| leave practice, or withdraw from the
| profession at will? The courts of gem
eral jurisdiction, both in England and
I in the United States, have exercised
supervision over the attorney upon the
universally assumed right, TO exclude
/ or admit, on application for admission.
or TO dismiss after admission for mis-
| conduct, or untitneSs OF character treat
! ing the power to pass upon the original
application, and the question of dis
missal, as commensurate; the mode be-
ing, where the untitnesS of the party a IS
to character or conduct is questioned
rule to show cause, accompanied with
| specification of charges-conferring
upon him the right TO purge himself, on
oath, and subjecting him to counter
proof. Bl. Com, 2S7. / Zabriskie,
S46-State IS. Eagle.
In New Jersey, Zabriskie, 346, State
IS. Eagle, the usual qualification of
character and attainments are required
the proof of them being by certificate,
and in that case the court held that il
could go behind the certificate of char
acter as II may have been given upon
Misrepresentation, and ordered rule 10
issue accordingly. II is clear that un-
der l, chap. l64 of the code, the judges
might likewise go behind the certifi-
cate. So that, in respect to the power
to admit or exclude an original appli-
cation, the power of our courts under
this section OF the code, is in accordance
with the general practice.
Has the right to dismiss for miscon-
duct, or loss of character, been re-
stricted by the code? Every presump-
ton is the other way. The only sec
tions relating to the point are D and 6.
Section would seem to be confined TO
I cases of admission under : /, but
/ whether so confined or not, evidently
authorizes the court to dismiss upon
! production OF the record, Qf in its
| keeping, or a duly certified COPY Of
record, if the original lies elsewhere, }
/ of conviction OF the felony, and dis
! pensing with the proceeding by rule.
/ Otherwise this section of the statute is
supeThuous.
In this view the section enlarges the
| power of the court in cases of felony
certainly does not restrict it. Sec. 6, in
cases of malpractice, enlarges the pow
! er of the court, by authorizing it, in its
discretion, TO submit the issue 10 a
jury.
All other cases, besides those specif-
ed in and 6 as felonies, where there
has been no conviction, or misdemean-
OF, other than for malpractice, are left
as at common law.
The courts on suggestion that either
of the applicants has been in compile
ity with the rebellion, might, under n
rule require him to purge himself on
oath, whether an attorney or a cAndi-
date for attorneyship,-but subject to
counter-proof.
In view of the widespread influence
OF the rebellion, the court, upon proba-
BILE ground of suspicion that he had
been in completely with il, might pro-
perly require every party asking for
admission TO the bar, or claiming to re-
turn to practice, after an absence from
II during the war, to show cause under
the usual rule.
Now the legislature may, under the
/ constitution, regulate the powers of the
EOuNLaH hlAulnlSuV eDlArR9 Them.
Hence, in the exercise of its reserved
authority, may do what courts in the
exercise of their common law powers,
as defined by their common law prac-
tice, or in the exercise of their statutory
powers cannot do. Clearly il may do
as much 1t has done less.
Through the medium of q test-oath,
the act of Feb. 18th, 1886, as a mere
summary proceeding, to test the fitness
of the party, without the formality of
q rule TO show cause,-giviDg to the
party an opportunity to purge himself
not SU6JH9utiIt1 him TO eOHllteT-proOL
and prudently applying TO all appii-
/ cants, TO meet the eEigency of the case
The statute is not even retros pectiye
except in the sense in which almost
every remedial proceeding is retroac-
tive that IS, applying remedy against
! an existing or transpired mischief. In
other words, the legislature has only
exercised power co-extensive with the
evil It has sought to remedy.
The proposition, so confidently and
constantly advanced upon the Rrgu-
ment, that the test-oath can no more be
/ applied to n lawyer, than il can be to a
farmer, or mechanic, is merely specious.
| Whether such an oath would be ap-
/ piled to a farmer or mechanic, as a con-
| dition OF continuing his vocation, we
are not called upon 70 decide.
1t is suficientto say that their y-i1It
| to labor iIt their poedti0H IS founded, not
| upon license, but upon eitizenshtp, that
The LdUyeT'S IS founded not upon citizen-
Sifip, but license: and that so peculiar
as 20 leave the control of it continuously
and supremely in the State. l am
clear that the act of February IA, 1865,
does not impair the obligation OF con-
1.-THE objection that the act of Feb
ruary IA, 1856, WAS a bill OF attainder