The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1867-01-22
SUPREME COURT OF APPEALS
OF WEST VIRGINIA.
JANUARY TERM, 1867.
Opinion delivered by Hon. George
LOOmIs. -'- u .

ANDREW HUNTER, SAMUEL PRICE, w.
S. SUMMERS, SAMUEL MILLER, CALEB
BoGGESS-Upon an expGTte motion to
be admitted to practice as ATTORNEYS
in the Supreme Court of Appeals of
West Virginia without being re-
quired TO take the oath prescribed by
the Act OF the Legislature passed
February 14th, 1866.
1t is admitted by each of the parties
to this motion, except Mr.. Boggess,
that, his completely with the late rebel
I lion renders II impossible for him to
take the oath req uired by the Act of
the 18th OF February, 1866. Mr.. Bog
CESS alleges that he can take the oath
but declines to do so upon other
grounds. None ofthe applicants except
him has been admitted to practice in
any of the courts in this State. They
produce evidence of having taken the
oath of amnesty, and of having receiv-
ed a pardon from the President of the
United States, for all offences against
the United States.
In support of the motion it is claimed
that the act is unconstitutional, and
therefore void, because:
l. It is an e1 post .SGetO law-or a bill
of pains and penalties.
= The alternative proposition is con-
tended for, namely, that if it be con-
stitutional, then 1t must so be con-
strued as to have only a proSpectiUe
! operation, and cannot be held to relate
to attorneys who were licensed, and
who, but for this act, would have been
qualified to practice in this State, under
the laws as they previously existed.
( 3. If it be construed 10 have a retro
| spectiye operation, it is not only ez post
tJdcto, but -impairs the obligation of
contracts; and its effect is to deprive a
party OF property without due process
/ OF law.
4. 1t violates the principle that inno-
| cence is TO be presumed until guilt is
legally proven.
| 3. That the pardon of the executive
relieves the party from all penalties
which might, (buI for pardon,) have
I been incurred, and inflicted, for having
/ done the things mentioned in the oath.
The Court is then called upon TO per-
form most grave and delicate duty
namely. to inquire whether the co-or-
dinate branch OF the State government
has exceeded its power, SO as to require
the interference OF the Court; and this
in legislating for the protection of the
| liberties OF the State, and of the welfare
( fthe people against the demoralizing g
! influences of the Iate rebellion.
No principle is more familiar in the
construction of statutes than this:-
! that every presumption is in favor of
their constitutionality; and it is only
when all other interpretations fail, and
in the last resort, that the court will
decide against their constitutional val
idity.
hold it also to be clear, beyond dis
pute, that as It is paramount duty of
the legislature TO watch the bearings of
the rebellion, its theories and senti-
ments, its influences and tendencies
upon the interests OF the State, and the
welfare ofthe people, with IN earnest Wig
ilance, and to WELD legislative powers
accordingly; so it is the duty of courts,
and more especially OF this court-as
that of final judgment-in its sphere to
assist the legislature, by cordial CO.
operation. guarding against contraven-
tion OF the fundamental law but ap-
plying the weight of its character and
the vigor of its arm, 10 the strict en-
forcemeut of all laws, SO aiming to con-
serve our institutions, and the common
good.
1t would be a state of things which
the good and wise could not fail to
deprecate, If in times of imminent
public danger, imposing upon the law
making power, extraordinary respon-
sibilities, and pressing upon it extreme
demands, its coordinate and judicial
branch were to be found employed in a
system of hypercriticism and false en-
barrassmenE, and not in an efficient
enforcement of the law in all cases,
where not clearly found to be in conflict
with the constitution
1t is proper in this connection to re-
mark that the considerations which
have been urged upon the court by the
several applicants, based upon the an
ticipated hardships that will, or may,
result to them, and to others of the
same class, should this act be sustain
ed, are appeals which should have no
effect; and upon me personally will
have no influence. As appeals intend
ed 10 awaken the sympathies of judges,
and swerve them from the faithful dis
charge of duty, they are out of place.
am constrained further to say, that
however painful to me may be the con-
sciousness of the effect which the act,
if sustained, may have upon the pri-
vate interests of the applicants, and of
others in their condition, 1 am not ut
liberty, either as good citizen or as a
faithful judge, to exclude from consider
alton the patent fact, that each of the
applicants, but one, was an earnest
Participator in, and an abettor of, the
rebellion that the rebellion was trea-
son IN its worst and least mitigated
form; that they sinned against the
ight-not led astray themselves, but
leading others astray that deliberate
ly and with full estimate of chances,
they staked their private interests
upon the result that their aim
was the destruction of the Union,
involving, of necessity, the destruction
of each of its parts; that they invited
and accepted the risks which they
voluntarily incurred; and it does not
lie in their mouths to deprecate a law
which their misdeeds have, in the judg-
ment of the Legislature, necessitated-
! Nor am l at liberty to exclude from
view the other fact, that the State and
| the loyal people have their rights in
volved in the matter; and that a law
passed for their protection against a
great and threatening evil, creates pre-
sumptions in its favor.
Speaking for myself, as an iudiyidu-
al member of the Court, L regard il as
nv duty to notice the criticisms which
several OF the applicants have quite
freely bestowed upon The spirit OF the
statute,-the animus of the Legislature
in passing it,-and upon several OF the
members who took part in the debate
am unable to see in the statute, in
that body, or in any of the members
concerned in the debate, either the
spirit of presumption, malignIty, or
the indications of bad faith, which have
been attached to them.
In this respect, the applicants seem
te forget that they were heard upon
this application by the mere grace of
the, Court, and that if their aspersiOns
were allowed to pass without rebuke,
their impropristy was none the less
felt. The Court must be supposed
to be alive TO proper sense
of self-respeet, and to that surrounding
respect which is essential to its dignity
and usefulness Its ear is not open 10
be used for uncalled- for criticisms upon
the motives of the Legislature, or the
conduct of its members; especially in
view OF the factt that they emanated from
those who stood indictable tor high
[ treason against the State, and were en-
abled to appear here through. mere ex-
ecutiVe fOrbearauce.