dissetiente. Tbis is.a motion by Charles James Faulkner, of West Virginia, to be admitted to the bar of this court, without taking the oath prescribed by the act of November 16th, 1863, (see Session Acts of 1863, ch. 106, page 138.) That act provides, that “every person elected or appointed to any office of trust, civil or military, shall, before proceeding to exercise the authority or discharge the duties of the same, take the following oath: “I, A. B., do solemnly swear that I will support the constitution of the United States, and the constitution of this State; that I have never voluntarily borne arms against the United States; that I have, voluntarily, given no aid or comfort to persons engaged in armed hostility thereto, by countenancing, counseling, or encouraging them in the same; that I have not sought, accepted, nor attempted to exercise the functions of any office whatever, under any authority in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power or constitution within the United States, hostile or inimical thereto; and that I take this obligation freely, without any mental reservation'or purpose of evasion.”
Before proceeding to the main inquiry whether an attorney at law is an officer within the meaning of this statute, there is a preliminary question to be settled; whether the applicant from his own showing is entitled to be admitted to this bar, either with or without taking the oath. He claims admission as a resident lawyer of this State, under a license obtained more,than thirty years ago to practice his profession in the courts of Virginia. In his learned and able opinion in the Quarrier case, (page 7,) Judge Polsley, remarks: “The 4th section of ‘an ordinance’ passed June 19th, 1861, after enumerating a long number of officers, (among which attorneys are not mentioned,) provides that none of them shall proceed to discharge the duties of their several offices, until they take an oath to support the constitution of the United States and to uphold and defend the government of Virginia, as vindicated and restored by the convention'which assembled at *296Wheeling on tbe 11th day of June, 1861. On the 10th day of February, 1862, it being doubted whether attorneys were such officers as come within the purview of the ordinances referred to, the legislature of the commonwealth of Virginia, (meaning the legislature of the restored government at Wheeling) passed an act which took effect on its passage, providing ‘ that before an attorney, who is a resident of this State, shall be permitted to practice his profession in any county of this commonwealth, he shall be required to take and subscribe the oath prescribed for officers, by the ordinance aforesaid.’ ”
There is no proof before this court, nor does the law presume, that the applicant ever complied with this requirement. It was a condition precedent to his right to use a license previously granted, and without which, had he applied for admission to the bar of any court in this State, whilst that statute was in force, he would, of course, have been refused. In practice at least, if not in law, he was no longer an attorney, until he took that oath. It was a test of fealty to the government which the legislature had a right to require, and which the applicant as an attorney was bound to take. Upon his failing to do so, or rather, during the continuance of such failure, his license became suspended or abeyed, until the act of February, 1862, was complied with, and until that act is shown to have been complied with, he cannot be treated by this court, even as a licensed lawyer in Virginia, under a license whose operation was thus suspended; nor can he be recognized as an attorney at this bar under any license, until he has been rehabilitated or re-licensed as such, according to the provisions of sections 1, 2 and 3 of the Code of Virginia, page 699, which prescribe the mode of proceeding in such cases. My opinion is, that he must either be licensed cíe novo, or show that his original license, once suspended or abeyed, is again in force.
Besides, admitting the validity of that license in Virginia, in order to give it any validity in this State, he would have to show-that he was not only duly licensed, but practicing under such license, as counsel or attorney in the State of Vir*297ginia, — which has not been shown. Code of Virginia, page 699, section 3.
I am, therefore, of opinion, that Mr. Faulkner lost his status as a Virginia lawyer, by failing to take the oath prescribed by the act of February 10th, 1862, and that there is nothing in the record which restores that status, or which shows that he is now a properly licensed attorney, either there or here, according to the laws of West Virginia.
2nd. Assuming the applicant to be duly licensed as an attorney, is he bound as such, before he can properly he admitted to this bar, to take the oath prescribed by the act of November 16th, 1863? -This question turns entirely upon the construction of the term “ officer,”' in its application to attorneys at law. Is an attorney at law an officer? Is he an officer of trust? Is he a civil or military officer? Is he an officer either elected or appointed? TJpon the answer to these questions must depend the fate of this motion.
An attorney, says Bacon, “is one set in the place of another, and is either public, as an attorney at law whose warrant is talis ponit loco suo talem attornaium, or private, wlm has authority given him to act in the place and stead ot him by whom he is delegated.”
Again — “The person here treated of is an attorney at law, who is appointed to prosecute and defend for his client, and is considered as an officer belonging to the courts of justice, concerning whom there' are several statutes and resolutions.” 1 Bacon’s Abr., page 474, title “Attorney”; 3 Blackstone’s Com., 25, 29; 1 Cunningham’s Law Die., title “Attorney”; 1 Burns’ Law Die., page 69; 1 Kent’s Com., 306 to 308.
The definition and classification of officers generally, will be found in 7 Bacon’s Abri., 279, 280, title “Office and Officers.” From this may be deduced:
1st. That the word office (officium) impo-rts a duty or trust.
2nd. That all officers are either civil or military, public or private according to the nature of their several trusts.
*2983rd. That every man is a public officer, who batb any duty concerning the public, and that he is not the less a public officer, where his authority is confined to narrow limits.
4th. That all civil officers are again divisible into political, judicial and ministerial.
5th. That attorneys at law ex virtnte officii, belong properly to the class of judicial officers.
6th. That they derive their office by appointment.
If these propositions be law, without going any further, do they not settle all the questions in this case? Do they not show beyond all question that an attorney at law is not only an officer, but a civil or public officer, within the definition of that term, and in the sense of the statute? Is he not an officer of trust also? The term office (says Lord Bacon) imports a trust. If this is its general signification, it can hardly lose the character of a trust when applied to the office of attorney — an office, in fact, which in all its bearings and relations, both public and private, may be said to possess the indicia of a trust of the highest nature.
It was claimed by Mr. Faulkner at the bar (and, I think, with reason) that by some clerical or typographical mistake, the words “office of trust,” as they now stand, were erroneously substituted in the statute for the words “office or trust,” as they ought to read. Be it so. This cannot change the purport of the statute. If anything, the act, as thus interpolated, would read more strongly against the applicant, for then, if either an officer or trustee, or if a trustee and not an officer (if the thing were possible) he would be clearly embraced by its provisions. One or the other, (either an officer or trustee) he certainly is. In my opinion, he is both — not only an officer, but an officer of trust in the largest sense. A trust in common parlance, may be said to be a confidence reposed by some one in some one, and for some public or private purpose. It is defined by Mr. Story to be an equitable interest in an estate, as con-tradistinguished from the legal title. It can hardly be supposed, however, that the statute meant to use the term *299“trust” in this narrow sense. It would scarcely require the test oath of a fiduciary in a mere deed to uses, and not exact it from an attorney on the ground that his office, as such.,, was not a trust.
I am of opinion that an attorney at law is not only an officer, but a trustee within the meaning of the statute.
3. Is he either elected or appointed? The term “elected,” generally speaking, imports a popular election. The term “ appointed” excludes that idea and refers the office or trust to some other source. Every officer not elected may well be said to be appointed. TJnder the law of West Virginia the Attorney General of the State and a prosecuting attorney for each county are the only attorneys who are elected. Even there, it is their peculiar official relation to the public, and not their office as attorney which is the subject of election. With this exception, if it can be called one, no attorney at law can be said to be elected. Is he appointed? The law requires, that before a resident lawyer can' be admitted to practice he must first obtain a certificate of honest demeanor; that he is over the age of twenty-one: and must also obtain a license or certificate from three-judges that he is duly authorized to practice in any of the courts of this State. Is not this an appointment? It is a license or permission to practice law without which he would have no right to practice it, without being subjected to heavy penalties. Is not this an appointment?— quite as much so as a commission from the Governor,, or letters patent from the crown. What is a license or commission, or letters patent, but an appointment? In England, before the statute of Westmr. 2, chap. 10, all attorneys were made by letters patent under the great seal; and were after-wards admitted by the courts: Bacon’s Abr., page 474, title “Attorney.” In Virginia, they were first commissioned by the Governor, but the power to appoint attorneys was soon transferred-from the Governor to the judges, where it still exists. I take it, that an attorney now licensed by our judges, is as much an appointed officer, within the statute, as those who figured during the colonial history of Virginia, *300or before tlie statute of "Westminster. Any other construction would be a quibbling upon terms* instead of an application of principles to construction.
I am of the opinion, therefore, that an attorney at law is an appointed civil officer or trustee, within the meaning of the act.
It was argued very ably at the bar, that an attorney at law is not a public officer; and Leigh’s case, 1 Munf. 468, and 20 Johns. Rep., 492, were cited in support of this position. I do not think that they sustain it. In Leigh’s case, decided 56 years ago, two of the three judges were divided Upon the question, and the third (judge Fleming,) in fact, expressed no opinion upon the point. The case in 20, Johns., (decided in 1823,) is not only in conflict with the elementary writers before cited, but with the whole current of decision since that period, in the State of New York: Ex parte Wood, 1 Hopkin’s Ch. Rep., 6; Seymour vs. Ellison, 2 Cowen, 13; Ray vs. Birdseye, 5 Denio, 619; ex parte Beakley, 5 Paige, 311; Merritt v. Lambert, 10 Johns. Rep., 352; McKoune vs. Davies, 3 Barb., 196; Waters vs. Whittimore, 22 Barb., 593; ex parte Cooper, 22 New York Rep., 67. Upon the same point see also State vs. Chapman, 11 Ohio, 430; Rev. Stat. Mass. 1836, 539 to 542; 1 Cunningham’s Law Dict., title “Attorney;” 1 Burns’ Law Dic., title “Attorney,” page 69; Banardiston Ch. Rep., 478; Hurst’s case, Thomas Raymond’s Rep., 56, 94; same case, Lev., 75; Keb., 349, 359, 387, 549, 558, 678; 5 Mod’s Rep., 432; Sid., 152; 1 Jacob & Walker, 440, Cropley vs. Parker; 4 Burrows, 2061; 2 Wils., 225; Hobart, 117; 2 Atk. 295, Saunders vs. Glass; Id. 298, Middleton vs. Hall, 1 Cox Ch. cases, 112. People vs. Justices of Delaware, 1 John.’s cases, 181; ex parte Emmet, 2 Caines, 386. Against this host of high authorities it would seem to be too late at this day to question the proposition, that an attorney is a public officer. His status as such, and as a necessary appendage of the court in the administration of justice, obtained at an early period, both in the Roman and French systems of jurisprudence, and in England as early as the reign of the first Edward. From *301that time, and as far back as Ms distinct civil status can be traced from tbe ■procurator of the civil law down to an attorney under tbe Code of 1860, be is treated as a public officer. The 4 Henry 4, ch. 18, recognizing bim as a public officer, and enlarging and regulating bis public duties, is tbe leading act, and is tbe basis of all the English as well as American legislation and decisions on tbe subject.
4. Next as to bis status under tbe Federal Government.
Tbe constitution of tbe United States, article 6, section 3, requires all judicial and executive officers of tbe Federal and State governments to take tbe oatb to support tbe constitution of tbe United States. Tbe judiciary act of September 24th, 1789, S. 35, (1 U. S. Statutes at Large, p. 92,) provides tbat attorneys and counsel may practice in tbe courts of tbe United States under rules to be prescribed by tbe latter. Tbe constitution does not attempt to define “offices,” nor tbe act to define “counsel” or “attorney.” They must therefore be taken to use those terms in their accepted legal sense: Sedg. on tbe Construction of Statutes, &c., pp. 26, 263-268, and the cases there cited. Tbe supreme court, at its first term in February, 1790, adopted a rule requiring attorneys and counsel to take tbe oatb to support tbe constitution and their own special official oatb. This rule bas remained in force ever since, and its existence can be reasonably referred to no other idea than tbat tbe court understood tbe constitution and tbe act in this sense. This is abundantly confirmed by Chancellor Kent, in 1 Kent’s Com., 308, and in tbe matter of Daniel "Wood, 1 Hopkins, Ch. Hep., 6. Perhaps tbe strongest confirmation, as to tbe Federal practice is to be found in tbe acts of Congress of July, 1862, and January, 1865 — the former applying the test oatb to all officers, civil and military; tbe latter discriminating between tbe attorneys and counsel of tbe several Federal courts, as to tbe time when they shall take tbe oatb prescribed in tbe former act, and its penal clause declaring them to be holders of office. "With a single exception, already stated, tbe law of Virginia bas been one way on tbe subject. Beginning with a colonial act as early *302as 1642, and coming down to tbe Code of 1860, tbe attorney, in every aspect of bis status, bas been recognized and treated, and again and again denominated as a public officer.
Se'e 1 Henning’s Statutes at Large, 275, 302, 330, 349, 419, 482; 2 Id., 81, 478 to 479, 498; 4 Id., 59, 360 to 362, 408 to 422, 479 to 507; 5 Id., 38 to 54, 171, 181 to 182, 826 to 348, 473; 6 Id., 140 to 143, 331, 336, 371; 7 Id., 124 to 125, 397 to 404; 8 Id., 185 to 186, 198, 385; 9 Id., 119, 121 to 127, 528; 11 Id., 76, 182 to 188; 12 Id., 36, 339, 472 to 473; 1 Rev. Code of 1819, p. 267; Code of Virginia, (I860,) p. 699.
5. As to tbe constitution and legislation of "West Virginia, in tbeir effect upon this question.
Tbe ordinance of tbe re-organized government of Virginia, of June 19th 1861, prescribed an oath of allegiance for all officers, which, upon my previous reasoning, embraces attorneys. Tbe act of February 10th, 1862, passed, evidently, as a declaratory act, on this point, in terms, embraces them, as officers. Tbe constitution of "West Virginia, art. -3, sec. 5, requires “ every person, elected or appointed, to any office or trust, civil or military,” to take “the oath to support tbe constitution of tbe United States and of this State.” Tbe 11th article, section 8, provides, that tbe laws of Virginia, as in force within tbe bounds of West Virginia, when tbe latter State goes into operation, shall be the laws of the State except as repealed or altered by legislation. By those laws, as we have seen from 1642, to 1860, attorneys (with one exception) have been uniformly treated as public officers. I can see nothing in tbe constitution or laws of West Virginia to warrant a different construction in this case.
In expounding this statute it is proper to look, it seems to me, to tbe peculiar condition of tbe country, and to the particular exigencies and necessities which existed when tbe act was passed. Tbe preamble, or purpose of a statute is sometimes tbe only key which unlocks its meaning. If it is not allowed to control any clear and express provisions to *303tbe contrary, yet, in a case of doubtful phraseology, in determining the meaning of the statute, the court may well look, and is frequently compelled to look to the mischief it designed to remedy, and to the purpose and policy upon which the act was founded. "What were these? "When this act, was passed in 1863, rebellion was at its height, civil war was raging throughout the country: and the hands and the hearts of all who are now affected by the operations of the act were then engaged in a most criminal and unwarrantable conspiracy to defeat the very object which the statute was designed to accomplish. That object was to uphold and maintain the TJnion of the States, and especially this State, then struggling hard for its existence, against those who contemned its institutions, who denied its constitutionality, and who were seeking to involve it in a common desolation as well as crime. It was to keep out of the body-politic here, at least for a season, the same mortuary element of secession which was threatening to destroy it elsewhere, and which had already subjected the country to an almost fabulous expenditure, both of blood and money. If this was the policy of the act, how is it possible to reconcile it with this motion ? Is it not a contradiction in terms as well as principle to suppose that, whilst clerks, recorders, sheriffs, justices of the peace and other ministerial or judicial officers are admittedly or at least practically embraced by the act, that attorneys are excepted from a rule to the expediency or necessity for which they contributed, perhaps, more than any other class in the community? If a judge upon the bench must take the oath, which is not denied, why should not an attorney at the bar, who, in his various public duties and relations, and especially in his influence upon society, is probably more potential than even the court, be required to take it ? It seems to me it would be doing injustice to the legislature to suppose that they intended such a distinction. I do not think that they have made it. The constitutionality of the act has not been questioned. It was a statute pendente hello, it is true, but it was not repealed by the return of peace. It is still in force. *304With the wisdom or policy of the law, or with the expediency or inexpediency of repealing it, I have nothing to do. I have taken the statute as I found it, and endeavored to give it such a construction as its palpable provisions and obviously intended purpose -would seem to warrant.
For the reasons assigned, however reluctant I may be to differ from a majority of the court in this opinion, I think the motion at bar should be overruled.
Mr. Faulkner was admitted upon taking the oath to support the constitution of the U. S. and of this State, and the usual attorney’s oath to honestly demean himself.