MR. LEIGH having on a former day of this term asked permission to qualify as counsel at this bar, it was then resolved by the whole Court, that in addition to the oaths of qualification heretofore usual in such cases, he must take the oath prescribed in the 3d section of the late act to suppress duelling: which he said he would consider of, and for the time declined. And now, by leave of the Court, he again moved to be admitted to the bar, on his taking the usual oaths, without the additional one last mentioned. He flattered himself he should be able to convince the Court that its first impression on this subject, formed and expressed as it was without argument, and on the sudden, was incorrect; in which, if he should have the good fortune to succeed, he should have no doubt or apprehension which would preponderate with that tribunal, the love of justice or the pride of consistency. The act directs, "that from and after the passing thereof, every person, who shall be appointed to any office or place, civil or military, under this Commonwealth shall, in addition to the oath now prescribed by law, take the oath" therein prescribed. Mr. Leigh insisted, that the practice of law was not an office or place under the Commonwealth, within the meaning of the act; that the act intended public offices only, and not private ones of any kind.

I agree, said he, it is laid down, generally, that attorneys at law in England are in all points officers of the respective Courts in which they are admitted. 3 Bl. Com. 26. But their character of officers of Court in England, is derived from certain restrictions they are under, and privileges they enjoy, in that country, unknown in this. In England, attorneys cannot be bail in civil cases; nor can attorneys at law practise as solicitors in Chancery; nor attorneys in one of the Courts of Westminster in any other; nor can they be called to the bar, till struck off the roll of attorneys; nor, if once admitted barristers, enrolled as attorneys again, till disbarred at their inns of Court; and they must not only be examined and sworn, (as here,) but must be enrolled, and must have served five years' previous apprenticeship as attorney's clerks. Doug. 114 466, 467. 3 Bl. Com. ubi supra. Stat. 4 Hen. IV. cap. 18. cap. 23. 2 Geo. II. cap. 27. 12 Geo. II. cap. 13. 22 Geo. II. cap. 46. 23 Geo. II. cap. 26. 30 Geo. II. cap. 1. On the other hand, attorneys cannot, regularly, be held to special bail; they must be sued by bill, not by original; they can only be sued in the Courts they belong to; and they are exempt from serving in offices they may be elected to against their inclination. Doug. 312. 1 Bac. Abr. 191. T. Raym. 179. 1 Lev. 265. And to prove that this character of officers of Court attached to attorneys in England, springs from these restrictions and privileges, Mr. Leigh remarked that (king's counsel excepted) serjeants and barristers at law, who are subject to such restrictions, and have no such privileges, take no oath of office, and are not deemed officers of Court. 3 Bl. Com. 28. Now, in Virginia, no such restrictions or privileges exist: here attorneys are counsel. In England, too, it was formerly held that attorneys were compellable to act. Co. Litt. 295. b. But it has been since adjudged, that an attorney is not compellable to appear for any one, unless he take his fee, or back the warrant. 1 Salk. 87. And even if the law, as stated by Sir Edward Coke, has not been thus exploded; still counsel were never thought compellable to act; (Harg. Co. Litt ubi supra. n. 1.) and as in Virginia, the characters of attorney and counsel are inseparably blended in the same person, so that one cannot be engaged as attorney, without being engaged as counsel, in which latter capacity he is, on no principle, compellable to act; it results, that no part of the profession is so compellable in this country. Attorneys, therefore, are no more officers of Court here, than counsel are in England. A class of men they are, indeed, in this as well as in that country, concerned in the administration of justice, to whose diligence, integrity, ability and honour much is necessarily confided, while from situation they are exposed to peculiar temptation; and on that account subjected to examination and probation, sworn to do their duty, regulated by rules of policy and practice, and liable to summary punishment and privation for unworthiness or misconduct. But these, their only traits of the officer known to our law, they have in common with jurors: jurors, as well as attorneys, are necessary in our system of jurisprudence, are selected, sworn, regulated, and summarily punishable for misbehaviour. Attorneys, therefore, are no more than jurors officers of Court in Virginia.

But granting that attorneys are on the same footing here as in England; that they are officers of Court; still, Mr. Leigh contended, they are not public officers within this act.

In fixing the legal construction of this our test, said he, I could not, for curiosity, forbear looking into the construction put by English legislators and lawyers, on their corporation, test and abjuration acts; which are known to have been enforced and interpreted in a spirit that the most rigorous expounder of our test, cannot except against. And here every thing confirmed my position.

By the test act, stat. 25 Car. II. c. 2. it was enacted, "that every person that shall bear any office, civil or military, or shall receive any salary, fee or wages, by reason of any grant from his majesty, or shall have command or place of trust under his majesty, or by his authority, or by authority derived from him, within England, " &c. shall take the oaths of supremacy, &c. Now, within this statute, (of which the words are stronger than those of ours,) it seems, attorneys and counsel were not supposed to be included, as holding offices or places of trust under the king, or under authority derived from him; otherwise Parliament would not have thought it necessary to subject them to the test by a special statute, as they did by 7 and 8 Wm. III. c. 24.

By the abjuration act, 13 Wm. III. c. 6. it was enacted, "that every person who shall bear any office, civil or military, or shall receive any pay by reason of any grant from his majesty, or shall have command or place of trust under his majesty, or by authority derived from him, within England, &c. and all ecclesiastical persons, members of colleges, &c. and all persons teaching pupils, &c. and all preachers, &c. and every person that shall act as a serjeant at law, counsellor, barrister, advocate, attorney, solicitor, clerk or notary, by practising as such in any Court, shall, within three months after they enter upon such office, or take upon them such practice," take the oath of abjuration, &c. Upon which Mr. Leigh remarked, that the alternative words (or take upon them such practice) plainly referred to the legal characters before mentioned; and shewed that the parliament did not deem their profession, nor was it generally understood to be, an office or place under government; if they had thought so, those words would not have been inserted.

And by the corporation act, 13 Car. II. stat. 2. c. 1. it was enacted, "that no person shall be placed or chosen in any office of mayor, alderman, recorder, bailiff, town clerk, common councilman or other office of magistracy, place, trust, or employment, concerning the government of any city, borough, or cinque port, and their members, or other port town, that shall not within one year next before such choice have taken" the oaths of supremacy, &c. and in default thereof, every such placing and choice is declared void. Mr. Leigh thought that if any words would include the attorneys of Corporation Courts,as officers or placemen, those of this statute would. Yet it had been expressly adjudged, that an attorney was not an officer within that act. T. Raym. 56. 94. S. C. Sid. 94.152. 1 Keb. 349. 354. 387. 558. 675. Which he took to be a direct decision of the very point now in discussion. In all the notices of this case, the only question ever raised was, whether an attorneyship was such a place as that a mandamus would lay to restore one to it; and it is decided that of an attorneyship in the common bench, to which the profession here is in that respect analogous, no mandamus in any case would lie, because of the Court's summary power of removal: but no doubt was ever entertained, that the attorney was not within the corporation act. It had been even doubted, whether a censor of the college of physicians (who by the acts of incorporation, stat. 32 Hen. VIII. c. 40. and 1 Mary, stat. 2. c. 9. must be sworn in office, is compellable to officiate, and is vested with large powers of fine and imprisonment) was a public officer within this act. 5 Mod. 431.

The English lawyers, judges, and parliament, therefore, in the utmost fury of religious zeal, gave not to stronger words, so large an interpretation, as had been given to the far weaker words of our act to suppress duelling.

But, said Mr. Leigh, a reference to our own institutions will place the true meaning of this statute in a yet more striking light; and ascertain, beyond doubt, the justness of the construction I contend for.

The act itself furnishes one clear criterion of its meaning. When the legislature ordains that an officer shall take an oath to observe a particular law during his continance in office, (such are the words of the oath,) surely it alludes to such offices as are wont to be formally resigned and vacated. This act, therefore, could not have alluded to the practice of the law, of which an actual resignation is unheard of. It is true, judicial and some other offices are, from obvious policy, incompatible with such practice; but if the incompatible office be abandoned, professional rights are ipso facto restored. If, for example, a Judge of this Court were to resign his station, surely he might resume his practice in his former courts, without qualifying anew.

It must be agreed, that if the profession of the law be an office or place under the Commonwealth at all, it is a lucrative one. Now the constitution of Virginia expressly provides, that all persons, "holding lucrative offices, shall be incapable of being elected members of either house of assembly, or the privy council." Art. 14. If then the construction I am controverting be right, lawyers are excluded from the assembly and the council. Yet the framers of the constitution, most of whom sat in the first assembly under it, and their successors ever since, never (as we know) had any such idea. The whole practice of the constitution from its origin to this day, the contemporaneous, the present, the constant exposition of it, refutes this inference; and, by consequence, explodes that construction, of which it is the direct induction; that attorneys are officers under government. I never heard of but one doubt on this point, which was started by one member of the last Assembly. Nay, some of our ablest men have much doubted whether the appointment of State's Attorney in the County Courts, is an office under government. In the Senate, the negative was resolved in Mr. Doddridge's case; in Mr. Campbell's, the affirmative: in the other house I remember no precedent, though the case, to my knowledge, has often occurred.

Some may attempt to obviate this last argument, by taking a distinction between offices under the Constitution, and under the Commonwealth; and though it be too subtle for the vision and grasp of my mind, yet, should it occur, it will be put to rest by considering that this principle of the Constitution is not restrained to offices of its own providing; that the clause itself recognises all lucrative offices; and that, though the profession of the law is not mentioned by the Constitution, yet it depends on Courts of constitutional organization.

Again, by the Constitution of the United States, art. 1. s. 6. cl. 2. "No person holding any office under the United States shall be a member of either house during his continuance in office." Is it, or has it ever been, thought that hereby the bar of the Federal Courts are excluded from Congress?

One instance more. By the act of 1788, New Rev. Code, p. 40. "The members of the Congress of the United States, and all persons who shall hold any legislative, executive, or judicial office, or other lucrative office whatsoever, under the authority of the United States, shall be ineligible to, and incapable of holding, any seat in either house of the General Assembly, or any legislative, executive, or judicial office, or other lucrative office whatsoever, under the government of this Commonwealth." And by the act of 1799, ib. p. 392. "No person holding or occupying any office or place, or any commission or appointment whatsoever, civil or military, under the authority of the United States, whether any pay or emolument be attached to such office, place, commission or appointment, or otherwise, or accepting or receiving any emolument whatsoever from the United States, shall be capable of being elected to, or holding any office, legislative, executive, or judicial, or any other office, place, or appointment of trust or profit, under the government of this Commonwealth."

Now, if lawyers in the State Courts are officers or placemen under the Commonwealth, lawyers in the Federal Courts are so under the United States, and are, by the statutes just recited, excluded, not only from all political and military state offices, but from the state bar also. If I am to be excluded from this bar for refusing this test, the gentlemen of the federal bar must be disbarred in the State Courts. Yet it was never imagined; even the keen-sighted jealousy which produced these laws never imagined, that such a conclusion could grow out of them. The objection has eluded the sagacity of all our statesmen, lawyers, judges; of all concerned in devising, making, executing those laws. In fine, it never occurred as a possible opinion, that lawyers of the state or federal bar are officers under the state or federal government; otherwise, doubtless, the exception made by those laws, in favour of county justices and militia officers, would have been extended to them.

We must suppose the legislature acquainted with the terms, principles, and spirit of our laws; with the English legal language and doctrine, the basis of our own; much more with our particular institutions, and with the universal practical construction of them; that when it uses particular language, it uses it in the sense affixed to it, by the English jurists, by the state and national constitutions, by former laws, by constant practice under them all, and by the universal understanding of the public in previous cases, all concurring.

Mr. Leigh knew of only two objections to his argument, which had been deduced from our own laws and usages. One was, that, under a general provision that all officers of government shall take the oath of allegiance, the members of the bar, state and federal, have been always held bound to take that oath; that is, they have been held to be officers under government. But this objection, Mr. Leigh shewed, was founded on a plain mistake in point of fact: it was not from any such reasoning or inference, but from positive and express provision, that the profession had been required to take the oath of allegiance to the state or to the union. Rev. Code, p. 55. 96. Laws U. S. cong. 1. sess. 1. c. 20. s. 35. p. 74. 2 Dal. 399. Yet he had been well informed, that this was the chief, if not the sole ground of the opinion of those most respectable Judges of the General Court, who, conferring on this subject in June last, hastily concluded that the profession was within the 3d section of the act to suppress duelling. So true it must for ever prove that the laws of nature, as unlike as they are above those of man, tolerate no exceptions; and that the most enlightened minds are not exempt from that liability to error ordained of all that is human. Another objection was, that the act of 1792, c. 71. s. 2. directs that counsel and attorneys "shall take an oath of office," namely, "I do solemnly swear, that I will honestly demean myself in the practice of the law, as counsel or attorney, and will in all respects execute my office according to the best of my knowledge and abilities." This objection, Mr. Leigh thought, hardly needed an answer. It begged the whole question in debate. The lawyer swears he will execute his office: What office? The practice of the law. And this brought it back to the first point; the nature of that office. Office there meant no more than duty. An office had been defined to be a right to exercise a public or private employment, and to take the fees and emoluments thereunto belonging; whether public, as that of magistrate; or private, as of bailiff, receiver, or the like. 2 Bl. Com. 36. I admit, said Mr. Leigh, that in a large sense, an attorney at law is an officer; so is an attorney in fact, an administrator, a physician, and who not? In the largest sense, every duty is an office. Thus, the finest treatise of ancient philosophy, that has been saved from the beautiful and admired ruins of antiquity, is called by its author and his countrymen, Cicero de officiis; by us, Tully's offices. The question here is not whether the practice of the law be an office, but whether it be (as the chief justice says, 5 Mod. 432.) a public office or not? I know no better criterion of a public office, than that mentioned by counsel in Carth. 478. "that it is a rule, that where one man has to do with another man's affairs against his will, and without his leave, that is an office, and he who is in it an officer: " to which I beg leave to add, that to every public office belong duties to which the officer or his servants only are competent, and to which he is compellable. But an attorney or counsellor in Virginia may or may not be employed, may or may not engage his services, at the public or his own pleasure. Try it by another test: "It may be said once for all," says Sir Edward Coke,"nonuser of itself, without some special damage, is no forfeiture of private offices; but nonuser of public offices which concern the administration of justice, or the Commonwealth, is of itself a cause of forfeiture." Co. Litt. 233. a. Now as, certainly, nonuser is no forfeiture of the office of a lawyer, it is not a public office concerning the administration of justice, or the Commonwealth. And Comyns, in enumerating the officers of the Courts of King's Bench and Common Pleas, pretermits the profession altogether. 3 Com. Dig. 279. 1 Ibid. 598.

But even though the practice of the law were an office or place under the Commonwealth, within the meaning of this act; Mr. Leigh said, he was not bound to take the oath, which those officers only were to take, who should be appointed after the passing of the act. He could conceive no other appointment of a lawyer in this country (what other was there?) than the license. His license was of eight years' standing. His case, therefore, was not within the words or spirit of the act. And the Legislature would have had good reason to make such a difference. A young man had a fair and free election to take or to forego the profession with its conditions; other and open roads to fame and fortune lay before him: while one whose destiny in life was fixed had no such freedom of choice, and ought not to be thus required, ex post facto, to subscribe new terms, or abandon his only means of earning a livelihood.

Of the doubt as to the constitutionality of this law, that had been suggested from the bench, (by Roane, J.) Mr. Leigh said, the more he had pondered it, the deeper impression it had made on his mind. Our Constitution (art. 14.) provided that certain "officers (Judges, Attorney-General and Secretary) shall have fixed and adequate salaries; and, together with all others holding lucrative offices, and all members of the gospel of every denomination, be incapable of being elected members of either house of assembly or the privy council." Now these being the only constitutional disqualifications, the strong implication was, that there should be no other. And there would be no doubt of it, but for another provision of the Constitution; "that delegates and senators shall be chosen of such men as actually reside in, and are freeholders of the county or district, or duly qualified according to law." Art. 5, 6. As to which Mr. Leigh remarked, that these very words were plainly meant to fix a qualification; otherwise, the whole passage had as well been omitted, and the subject left entirely to legislative discretion; whence the phrase or duly qualified according to law, must refer to some pre-existent, or coeval, not future laws. Then, as he conceived, that phrase stands opposed merely to freeholders; so as to restrain the power of change, if any was intended, to that point only. Mr. Leigh had been informed, as matter of history, and he believed, that those alternative words referred to certain sections of the Commonwealth, the citizens of which had, at the time, no freehold titles in their lands, or at least imperfect ones, and yet were duly qualified by law to elect and be elected.(a) But if the words of the Constitution were doubtful, its spirit could not be mistaken. If the Legislature might add one new disqualification, they might add many; multiply disabilities without end; disqualify whole districts or classes of men by personal or local description; make an academical degree, or even a previous service in one of its own bodies, a necessary qualification; and thus convert the government into an oligarchy. If this tremendous power existed at all, it was boundless and uncontrollable as the winds; and dissipated at once all our fond notions of a written constitution, late the glory of American politics. These test laws, particularly, were the first weapons young oppression would learn to handle; weapons the more odious, since, though barbed and poisoned, neither strength nor courage was requisite to wield them. Should we rely on public virtue to keep us from the use and extension of this system of tests? In no age, nor clime, nor nation, had ever virtue wholly swayed human bosoms and actions; man was universally liable to be transported with passion, blinded with folly, corrupted with vice, and yet more with power, maddened with faction, and fired with the lust of domination; let us not flatter ourselves we were not exempt from the common lot, and although the wise exposition of the bill of rights, by the act to establish religious freedom, might for a time secure us from a religious test, a political one was certainly a possible, perhaps a probable, and not very remote event. Sir, said Mr. Leigh, I am possessed with a strange delusion, if the very law in question does not appoint a political test. I fear other instances might be recounted. Such are the beginings. The end of all these things is death. A free constitution cannot coexist with this dangerous and parricidal power in the hands of the ordinary Legislature. I recur, therefore, to the fundamental principle of the revolution, which I take to be obsta principiis, and directly submit the constitutionality of this law to the judgment of the Court.

Footnote (a) See ordinances of convention, 1775, ch. 4. s. 12. Chan. Rev. p. 31. which seems to put the truth of this fact out of doubt.

It had been plausibly suggested, that it cannot be unconstitutional to require one to abjure the commission of a crime. Mr. Leigh pursued this doctrine to its consequences; if true on a small scale, it was so on a large one. If it were a constitutional qualification to require of officers that they shall abjure duelling, so cheap a system of preventive justice might be extended beyond those persons, and that crime, to all persons, and to every crime and vice of the decalogue; not to reckon new ones, which legislative ingenuity might create, or (alluding to the 6th section of the act under discussion) appropriate from our sister states. What then? Would the sin original of man's fall, which the redeemer's blood hath not blotted out, fade and vanish before this poor earth-born scheme of salvation? Or would crimes and vices, spite of this oath, still continue to infest the world? Then, said he, the only effect of this blessed system of abjuration would be, to heap on the head of every sinner the adventitious guilt of perjury; to forge racks for the conscience, and tortures for the soul. Can such horrid refinement of tyranny be constitutional? If not against the word, is it not against the spirit, which declares, "that cruel and unusual punishments ought not to be inflicted?" Surely the pains directly denounced against the duellist, disfranchisement, excommunication and death, (for exile is denied,) are severe enough; and in regard to a professed pious motive of this law, religious men, I think, might have been content with punishing the body, without impiously preparing the damnation of the soul. Because I would not lightly run the slightest risk of abjuring the right of self-preservation, under the vague words of this law; because I disapprove its policy; because I think the Court has no rightful power to force me within its pale; because I hold it to be at war, at least, with the spirit of the Constitution; withal, because I abhor rash oaths of all sorts, I do utterly loath the taking of this oath, and feel myself bound by my honour as a gentleman, and my duty as a citizen, to resist the imposition of it to the uttermost of my power. With the light of history before my eyes, I have not the vanity to think that my mind and actions, any more than other men's, are proof against force or temptation; and for that reason only, I forbear to say, positively, that I never will take this oath as a forensic qualification. I am speaking of it more particularly in that view. The application of this test, in principle and in consequence, to offices which are of public gift and trust, is widely different from such application to professions which are matters of right and modes of livelihood.****************************

The Justices Delivered their Opinions

Judge TUCKER. On a former day of this term, Mr. Leigh, a gentleman who has practised as an attorney and counsel for several years in the District Courts, County Courts, and Court of Chancery, made a motion to be permitted to practise in this Court; a question was propounded, whether he must take the oath prescribed by the act of the last session for the suppression of duelling. I was of opinion that he could not be permitted to practise in this Court without taking that oath. My opinion was founded upon these principles: that an attorney at law is a public officer; that his license is only an inchoate step to office; that he becomes an officer in that Court only in which he qualifies as the law directs; that his admission to practise in one Court does not authorize him to practise in any other Court, without the permission of such other Court, and taking the same oaths therein as if he had never been permitted to practise in any other; that such an admission was equivalent to an appointment, inasmuch as he thereby becomes an officer of that particular Court: that the policy of the act for suppressing duelling extended as well to such officers, as to any other officer under this Commonwealth.

I have attended to the arguments which have been since offered by Mr. Leigh, in opposition to that opinion, and have examined such of the authorities cited by him as I could get access to. Hurst's case, Raym. 56. 94. which is the same case as in 1 Lev. 75. 1 Sid. 94. 1 Keb. 349. 354. 387. 558. 675., not to mention the authority of Judge Blackstone, 3 Comm. 26. clearly proves, that in England an attorney at law is considered as a public officer; otherwise a mandamus would not lie to restore him. The whole context of our act concerning counsel and attorneys at law, between whom there is no distinction in this country, proves the same thing to my apprehension. They are subject to penalties to which no private citizen could possibly be subjected. Let a single example suffice: the lawyers practising in the Inferior Courts may demand for an opinion or advice, where no suit is brought, or prosecuted or defended by the attorney giving such advice, but not otherwise, one dollar and sixty-seven cents; those in the General Court three dollars and fifty-eight cents, for advice, under the same restrictions. And every lawyer, exacting, taking, receiving or demanding any greater fee, or other reward, is subjected to a heavy penalty. Under what colour or pretext could the Legislature impose a penalty on any other than a public officer, for demanding and receiving a hundred or a thousand dollars, or any other sum whatever, for giving his advice to any person willing to pay for it?

If, then, the office of an attorney or counsel at law be a public office, it must be an office or place under the Commonwealth; which brings it within the words of the act. It matters not by whom the appointment may be conferred, or in what manner the investiture is made: whether the Legislature, the Executive, or the Court appoints or admits to an office, the office or place is held or exercised under the authority of the Commonwealth.

On the point of unconstitutionality, I never have doubted, nor ever shall controvert, the power of this Court to consider and decide whether any act of the Legislature be contrary to the Constitution of the State, or of the United States, or otherwise. My reasons and opinions on this subject have long been before the public. I shall not, therefore, repeat them. But on the present occasion, I have not felt, nor do I feel, the smallest doubt of the constitutionality of the act in question; the object of which appears to me the prevention of a great moral and growing evil; and the provisions of it, so far as I have had occasion to consider them, well calculated to advance the benefit of society, and suppress the evil.

I therefore feel no reason to depart from the opinion which I first delivered, that the oath prescribed by that act must be taken by every gentleman who may wish to practise in this Court, previous to his admission.

Judge ROANE. I had seen cause to doubt of the correctness of the sudden and off-hand opinion given in this case, long before I had heard Mr. Leigh's argument. That opinion was formed and delivered upon an insulated view of the subject, and under circumstances which precluded a due consideration of the question. I shall ever deem it more honourable, as it is, undoubtedly, more useful, to retract than to adhere to a hasty or incorrect opinion.

An attorney is defined to be one who is set in the place of another, and he is either public, as an attorney at law, or private, as being delegated to act for another, in private contracts or agreements. (1 Bac. 287. Co. Litt. 52.) With respect to these public attorneys, or attorneys at law, in order to ensure a due degree of probity and knowledge in their profession, so indispensable to persons acting in that character, none are permitted to act as such but those who are allowed by the Judges to be skilled in the law, and certified by the Court of the County of their residence to be persons of honesty, probity and good demeanour. As a further guard against improper practices in their profession, they are required to take the oath prescribed by the act upon this subject. But for the injury arising to the public in general from the want of skill in the profession, and the danger of abuses on the part of persons whose profession peculiarly enables them thereto, no legislative interference would be necessary to distinguish these public attorneys from the private attorneys before mentioned; nor, on any other ground, would it be just to abridge the general right of our citizens to employ any person whatsoever, as their attorney, at their pleasure. Having obtained the sanction of these two tribunals, touching these two particulars, an attorney is licensed or allowed to practise; and the Courts have also a continuing control over them, with power to revoke their licenses for unworthy practices or behaviour: But the licensing Judges cannot be said to "elect" or "appoint" an attorney: He can, perhaps, only be said to be "appointed" by the particular clients, who, after he is licensed, may severally employ him. This result is entirely justified by a view of the act "concerning attorneys at law and counsel," 1 Rev. Code, 96. in which these functionaries are nowhere said to be "elected" or "appointed," either by the government or the licensing Judges, nor are their functions anywhere called or designated as "offices" in the act, except in the form of the oath prescribed to be taken; and even there, that term may well be taken in a general and extended sense, as synonymous with "duty." The act, it is true, prescribes an oath to be taken as aforesaid, previous to being allowed to practise; but that can only be considered, as I have before said, as an additional security for the good conduct of the attorney: It would be too much to say, that this single circumstance of precaution (any more than those of the license and certificate of the County Court before mentioned) shall exalt that functionary into an "officer," when he is neither said in the law to be "appointed" to any office, nor to hold any office, and when he receives no salary or emolument, except the fees which individual citizens may please to give him. If this single circumstance should be construed to have that effect, it might be equally argued to have a similar effect, in relation to jurors, or others who are obliged to incur the obligation of a similar sanction, before they are permitted to officiate.

It is not necessary, in this case, to consider whether, and in what degree attorneys are considered in this country (as they are in England) officers of their respective Courts; though it is easy to see that an attorney, in this country, not having as many privileges as the English attorneys, in consideration of which, that character is there holden to attach, a difference may probably exist in this country, in this particular; nor is it necessary to consider the operation of the act, as relative to the Attorney- General and his deputies, and other attorneys for the Commonwealth, who are all "elected" and "appointed" to their several offices, and receive an annual salary for their services. Even admitting, therefore, that attorneys are, in some sense, and in some degree, officers of their several Courts, as they are held to be in England, the question still recurs, are they officers within the meaning of the act to suppress duelling?

However laudable the object of the act to suppress duelling may be, it is still a highly penal law, and must be construed strictly. It is unusually penal, if not tyrannical, in compelling a person to stipulate upon oath, by the 3d section, not only in relation to his past conduct, and present resolution, but also for the future state of his mind, and his future conduct, with respect to the offence in question, under all possible circumstances; a stipulation which many conscientious persons, however prepared to take the oath as it regards the time present, might well hesitate to enter into. Thus premising that this act is highly and unusually penal, I will, under the influence of the rules for construing penal statutes, proceed to apply it to the case before us.

In making a construction upon this act, we must have an eye to every part of it; we must particularly have reference to the 2d section as well as the 3d; they both relate to precisely the same offence, (the giving or accepting a challenge,) and go to the disability of the same persons only. They differ only in this, that the last clause goes beyond the former, in requiring a pledge that the persons therein contemplated will never, in future, be engaged in duelling.

The 2d section declares that a person accepting a challenge, &c. "shall be incapable of holding or being 'elected' to any post of profit, trust, or emolument, civil or military, under the government of this Commonwealth. " It relates as well to persons now in office, as to those to be elected thereto, and we are to construe those of the former class, designated under the term "holding," as standing on a common foundation with the latter, i. e. that the former must have been elected as well as the latter must, of necessity, be elected. This part of the clause, in both its branches, excludes attorneys at law, who, I have endeavoured to shew, are neither "elected" nor "appointed" to office, but are merely permitted to practise, by those who are constituted by law judges of their character and qualifications respectively. Again, this clause only extends to those who hold "a post of profit, of trust or emolument, civil or military, under the government of this Commonwealth. " Admitting (which is the most that can be granted) that attorneys are to be considered as "officers," they are only considered, even in England, as I have before said, as officers of their respective Courts. (1 Bac. 287.) They do not, therefore, come up to the desideratum of this act; they are not officers under the government of the Commonwealth. There is no just ground on which we can erect, by implication or construction, into governmental officers, those who, in England, are not exalted to that character, and who, in the only books and doctrines handed to us on the subject from that country, are held, at most, to be mere subordinate officers of their respective Courts. But, if attorneys could be even considered as officers of the government, they do not hold an office of profit or emolument under the government; (or, in other words, a lucrative office;) otherwise they would have been excluded from a seat in the Legislature by the provisions of the Constitution; which has never been done nor attempted in relation to mere attorneys, however it may be as to those who are "appointed" to prosecute for the Commonwealth, and receive a salary therefor. This section, therefore, relating only to persons "elected" to office, which attorneys are not; to persons who are officers under the government of the Commonwealth, in which predicament attorneys do not stand; or to persons holding lucrative offices, which has never been considered as being the situation of mere attorneys at law, however gainful their practice may be, does not extend to persons of that character.

The phraseology of the 3d section varies somewhat from that of the 2d; but it is only a variation in words, not in substance. The office or place which it contemplates is one which equally requires an "appointment;" and is to be an office or place "under the Commonwealth," and not under an individual Court of Justice. These criteria exclude attorneys at law, as completely as those contained in the former clause under a varied form of expression. In addition to this, the words of the oath itself prescribed by this clause, "during my continuance in office," seem to indicate those public offices which are held by commission, or appointment, and are wont and proper to be resigned; they do not naturally apply to a function which is never resigned or formally given up, which it is the right of one citizen to exercise at the request and for the benefit of another, and in respect to which the regulating hand of the Legislature has only interposed, for the salutary purposes before mentioned.

This construction of the duelling act, in this particular, is both supported, as aforesaid, by the cotemporaneous and continued construction by both houses of Assembly, admitting attorneys to a seat in the Legislature, notwithstanding the provisions of the 14th section of the Constitution excluding therefrom those who hold lucrative offices; and by the construction upon the act of December, 1778, c. 37. (1 Rev. Code, p. 40.) and that of January, 1799, (1 Rev. Code, p. 392.) disabling certain officers of the general government from holding offices under the government of this Commonwealth. By the last of those acts, it is enacted, that all persons holding or accepting "any office or place, or any commission or appointment whatsoever, civil or military, under the authority of the United States, whether any pay or emolument be attached thereto, or not" shall be "incapable of being elected to, or of holding any office, legislative, executive or judicial, or any other office, place, or appointment of trust or profit, under the government of this Commonwealth." Although these words are undoubtedly as extensive as those occurring in the duelling law now before us, it has never been pretended (although, if attorneys when they practise in the State Courts thereby become officers of the Commonwealth, they equally become officers of the general government when they practise in the Federal Courts) that the attorneys practising in the latter Courts cannot also practise in the former. On the contrary, the sanction of this Court, as well as of all the other Courts in the Commonwealth, has been given to this permission; and thus, a construction has been universal, in this country, in cases entirely analogous to the one before us; which, as well as those mentioned by Mr. Leigh, upon analogous cases in England, completely settles the present question. My opinion, therefore, is, that a mere attorney at law, or counsel, is under no obligation to take the oath in question previous to his being admitted to practise in the Courts of this Commonwealth.

As to the question of the constitutionality of the act to suppress duelling, the foregoing view of the case renders it unnecessary for me to say any thing upon it. I do not see, however, at present, that it can be deemed unconstitutional, as it relates to the qualification of attorneys at law, or counsel; unless, indeed, it be on the broad ground of the injustice, if not tyranny, of compelling a man to swear, in advance, that he will not for a given time do or forbear to do any given act; a thing which tender and scrupulous consciences, however resolved at present, might well hesitate to do. With respect to any questions which may arise upon this act in future, in relation to persons elected into the Legislature or the privy council, touching the power of the Legislature to abridge and circumscribe the number of those from whom the people have reserved to themselves the right to make their elections into those important stations; they will remain to be decided by the proper tribunals when they occur, upon full and solemn deliberation; whether the act before us falls within this description, and whether it be censurable, or not, on the ground of abridging the just and constitutional rights of the people, through the medium of an agent, who as yet has committed no offence whatsoever, when, undoubtedly, the Legislature only meant to impose a penalty upon the offender himself; will be then to be considered and decided. At present I am very far from having any conclusive opinion upon it.

Judge FLEMING. The act under consideration being a compulsory law, (however salutary it may be,) imposing on the officers of government an oath unknown to the former laws of the state, or of the United States, although there be no pecuniary penalty inflicted on those who refuse to take the oath therein prescribed, I cannot but consider it as a penal statute, and, as such, must give it a strict interpretation. It appears to me, therefore, that practitioners of the law are not comprehended in the act, under these words; "every person who shall be appointed to any office or place, civil or military, under the Commonwealth, shall, in addition to the oath now prescribed by law, take the following oath," &c. The practice of the law is a profession which every citizen of the State, having complied with certain requisites of the act of 1792, c. 71. may take up, engage in, and exercise, according to his own will and pleasure; and which he may lay down, and resume, as often as to him may seem convenient, without any responsibility for his conduct in so doing. The language or wording of the latter sentence in the oath, evinces, to my mind, that the practitioners of the law were not in the contemplation of the Legislature. The officer taking the oath, after swearing "that he hath not been engaged in a duel, by sending or accepting a challenge to fight a duel, or by fighting a duel, or in any other manner in violation of the act, since the passage thereof," is further to swear, that "he will not be so concerned, directly or indirectly, in such duel, during his continuance in office; " which, in my conception, has no allusion to practitioners of the law: but, admitting they are comprehended in the act, it has, or ought to have, a prospective, and not a retrospective, operation; and cannot affect officers of any description, appointed to office prior to the passage of that act; which I construe as if the phraseology of the clause had been thus; "every person, who, after the passing of this act, shall be appointed to any office, civil or military, under this Commonwealth, shall take the oath, &c. as therein prescribed." And I cannot conceive that a practitioner of the law of nine or ten years' standing, qualifying to exercise his profession in a Court where he had been unused to practise, can be an appointment to an " office, civil or military, under the Commonwealth." I am, therefore, of opinion, that Mr. Leigh may be admitted to practise at this bar, without taking the oath prescribed by the act to suppress duelling.

Mr. Leigh was therefore admitted without taking the oath.