BrowN, J.
This is a motion on the part of Hon. Charles J. Faulkner to be admitted to quality and practice as an attorney at law in this court, upon Ms taking, the oath to support the constitution of the United States and the constitution of this State, and the oath of office as an attorney at law; but without taking the oath prescribed by the act of November 16th, 1863, commonly called the test oath: having produced evidence satisfactory to the court, that he was a licensed attorney under the laws of Virginia, and a practitioner in the courts of that State prior to the formation of the State of West Virginia; and claiming to be a loyal citizen of tMs State, resident in the county of Berkeley, which was accepted as true by the assistant attorney for the Attorney General. But it is objected for the Attorney General, 1st, That a Virginia license cannot avail the applicant in the courts of this State; 2nd, That if it could, yet he cannot lawfully be admitted to practice as an attorney at law in this coui't, without first taking the oath prescribed by the-last mentioned act, for persons elected or appointed to any office or trust, civil or military; which oath is commonly called the test oath.
As to the first objection, the formation of the State of West Virginia within the territorial jurisdiction of the State of Virginia, was a coup d’etat accomplished in con[282]*282formity to the laws of the mother State; and our constitution provides that, the laws of the old State not in conflict with the constitution, shall continue in force in the new, until altered or repealed by the legislature. A license, therefore, valid in Virginia, would be equally so in West Virginia, so far as those are concerned who were residents within the bounds of the new State upon its organization. Under this view of the case, no resident attorney of this State was required to procure a new license, and nothing appears to place Mr. Faulkner on any different footing from his brethren of the green bag. I think, therefore, that there is nothing in the first objection.
The 2nd objection is of greater import, and has been argued with ability, learning and research on both sides; and I have given to the case a careful consideration.
Great pains have been taken and much learning displayed in the effort to prove that, an attorney at law was an officer; which in one sense cannot be successfully controverted; but the real question is, whether or not, he is an officer elected or appointed to an office or trust within the meaning of the said test oath act?
He was not such an officer within the meaning of the anti-duelling act; which was also a sort of test oath act. So the court of appeals expressly held in Leigh’s case in 1 Mun-ford. The anti-duelling act disabled the duelist from “being elected or appointed to any office or post of profit, trust or emolument, civil or military, legislative, executive or judicial, under the government of the commonwealth.” The language of the act under consideration is, “ every person elected or appointed to any office of trust, civil or military, shall, &c.” It was admitted in the argument on both sides that, the reading in the act, “ office of trust,” should be “office or trust:” the word of being a clerical misprision, for the word or: and by comparison of the act With the first section of the act of June 26th, 1863, of which it is amendatory, and with 5th section of article 3, of the constitution, there can be little doubt of the fact as conceded.
A distinction has been attempted to be taken between the [283]*283two acts, in the application of the rule of construction as given by tbe court of appeals in Leigh’s case; but, I think that it is rather a distinction without a difference, and on principle cannot be sustained. Both acts clearly apply to the same officers, and if one does not embrace attorneys the other cannot.
The construction given to the act in Leigh’s case has been received and acquiesced in as the unquestioned rule of law in Virginia from the time it was pronounced to the present. That the ease was rightly determined is confirmed by the ruling of the supreme court of New York in the matter of oaths of attorneys: 20 Johns., 492, upon a similar statute; without reference to the Virginia decision.
It is also confirmed by the course of the supreme court, and Senate and House of Bepresentatives of the United States, in permitting senators and representatives in Congress, to practice in that court, and still sit in their respective houses; which they could not have done upon any other rule of construction, than that settled in the cases above cited; because the constitution of the United States, which they all swore to support, declares that, “ no person holding any office under the United States shall be a member of either house during his continuance in office.” If then, an attorney at law is, as contended for by the contestants, an officer, and when admitted to practice in the supreme court of the United States is an officer under the United States, within the meaning of the constitution, then he could not be a member of either house; nor sit in those bodies during his continuance in his civil office of attorney at law. To do so would be such a high offense, that it cannot be supposed to have passed unobserved or unthought of by the many eminent lawyers, statesmen and jurists, who have habitually done the like from the commencement of the government to the present' time, without reprehension in a single instance. Again, the act of Congress of July 2nd, 1862, requiring “ every person elected or appointed'to any office of honor or profit under the government of the United States, either in the civil, military or naval departments of the public ser[284]*284vice, excepting tbe President of tbe United States,” to take and subscribe tbe congressional oatb therein prescribed, has no where been held or contended to include attorneys at law. Tbe test oatb prescribed by tbe act of November 16th, 1868, is almost a transcript, muiatis mutandis, from tbe congressional test oatb, with some additions of a local nature.
On January 24th, 1865, a little less than three years after tbe passage of tbe former act of July 2nd, 1862, Congress passed another act supplemental to tbe former act, and so stated in tbe title to be supplemental to tbe former, requiring attorneys to take and subscribe tbe oatb prescribed in tbe former act. But one reason can be given for tbe passage of this latter act, and that is, that tbe former did not embrace attorneys. Here then was congressional and legislative interpretation of tbe act from which our test act was taken; and it is manifest that tbe judges of tbe Federal courts throughout the country must have taken tbe same view of tbe former act: otherwise, they would have enforced it against all their attorneys, and thus have prevented tbe necessity for passing tbe latter act.
Again, tbe act of 1788, (12 Hen. Stat. at Large) which, though pruned by subsequent legislation and revisal of much of its verbosity, still stands on the statute book in all its substantial elements tbe law of to-day, prohibiting all persons bolding any office or trust under tbe government of tbe United States, from bolding any office or ti’ust under tbe commonwealth, whether civil or military, legislative, executive or judicial, with tbe exception that members of Congress may be justices of tbe peace, and certain other exceptions therein specified, among which attorneys are not named nor included. If, therefore, attorneys at law were officers as contended for by tbe assistant Attorney General, no member of Congress, nor attorney practicing in tbe supreme or any circuit or district coirrt of tbe United States, could bold any office or trust, civil or military, under tbe commonwealth of Virginia, nor of this State; nor be allowed to practice as an attorney in tbe courts of either State. Yet, no such exclusion has, in a single instance, ever been [285]*285enforced since the passage of the act of 1788; or ever attempted; an omission so marvelous, if not right, that it would be most difficult indeed to excuse or account for it. Were the act in question of even doubtful construction, a court would hesitate long before giving it a construction that would produce such wide-spread and serious consequences.
Again, the ordinance of the convention of June, 1861, which reorganized the State government that had been usurped by the rebels, required “ all officers in the service of the State, or of any county, city or town therof, or thereafter to be elected or appointed for such service,” to take.the oath prescribed by that ordinance; but it was never held or even contended that attorneys were thereby required to take said oath to entitle them to practice in the courts of the restored goverment of the State; neither were they required so to do by the courts, until the legislature passed the act of February 10th, 1862; by the 2nd section of which they were in express terms required to take the oath prescribed by the said ordinance for officers. Thus it seems clear from the legislation reviewed and considered, that whenever it was the legislative intention to embrace attorneys at law, they ale named as such; and when not so intended they are not so named, and are not included by the general terms “ all officers elected or appointed, &c.”
Viewed therefore, in the light of past legislation and judicial construction so generally acquiesced in, it would seem to be the settled understanding from a very early period of our history that, attorneys at law were not officers of the government either State or national, elected or appointed, within the meaning of any of said acts relative to officers, civil or military; but on the contrary, that they were .'a profession or class sui generis ; and though called officers of courts, yet never in the sense of these acts, nor intended to be embraced by them.
It is a well settled principle, admitted by both sides in the argument, that in giving construction to any statute, the legislature must be understood to have used terms and set [286]*286phrases in the sense in which those terms and phrases for long years prior, had been understood and received, in relation to a particular subject. With such understanding universally acquiesced in by our people, the act of November 16th, 1863, was passed without naming attorneys, passed in the light of the express decision of the highest tribunal in the State, standing undisturbed and unquestioned as the law of the land and the only rule of construction in such case.
Can that statute, so passed, be now construed by any other rule of interpretation than that so long and well settled, and so universally recognized and acknowledged ? It cannot be on any principle of reason, justice or sound policy; and the construction contended for by the assistant Attorney General, is still more untenable, when it is remembered that the act, though perhaps not strictly ex post facto, is penal in its nature and retrospective in its operation, and should therefore, be construed strictly; yet it is sought to make it embrace by construction, attorneys, when they are not named.
It seems to me impossible to give to the act in question, such a construction, with such surroundings and such antecedents ; or even to harbour a suspicion that a solitary member of the legislature that passed it ever dreamed, much less believed, that it embraced attorneys.
I see no reason, therefore, in the 2nd objection, to authorize this court in refusing to permit the applicant to qualify and practice as an attorney and counsellor in this court, upon his taking the oaths required by law — viz, the oaths to support the constitution of the United States and the constitution of this State; and the oath of office as an attorney.
But it may be asked, if an attorney is not an officer elected or appointed, within the meaning of said act, how is it that he is required to take the oaths to support the constitution of the United States and of this State ? It is answered that by the 3rd section of chapter 164, Code of 1860, every attorney is required to take the oath of fidelity to the State; the form of which was prescribed by the 1st section of chap[287]*287ter 13 of tbe same Code; and by the act of June 26th, 1863, chapter 13, of that Code is repealed, and the form of the oath of fidelity made to correspond with the requirement of the constitution of the United States and the constitution of this State.
Berkshire, President.
The controversy we are required to settle has arisen on the application, on a previous day of the term, of Charles James Faulkner, to be admitted as an attorney at law to practice in this court. The said Faulkner claims to be a loyal citizen of the United States and of this State, resident in the county of Berkeley, where he has been residing many years, and was so residing at the time, and for many years antecedent to the creation of the State of West Virginia. He also proved, or offered to prove to the satisfaction of the court, that many years previous to the creation of this State, he had been duly licensed, under the laws of the State of Virginia, to practice law in the courts of that State, and had accordingly so practiced for a long period of time, and also in the supreme court of the United States; and also offered to take the oath to support the constitution of the United States, and of this State, and the oath of office.
But without controverting these facts, an objection was interposed by the Attorney General to the admission of the said Faulkner, upon the ground, first, that it did not appear that the said Faulkner had ever taken the oath to support the restored government of Virginia as required by the act of the 10th of February, 1862, whereby, as is claimed, his license became null and void, but if otherwise, that still by the formation of this State his license so obtained under the laws of the olcl State necessarily and ex vi termini expired and cannot avail him in the courts of the new; and secondly and mainly, because the said Faulkner cannot lawfully be admitted to practice in the courts of this State without first taking the additional oath prescribed by the act of the 16th k of November, 1863, required to be taken by all persons/ elected or appointed to any office or trust, civil or miliU'ri'‘ [288]*288The questions involved in this almost unprecedented contest, are assumed to be fraught with great interest and pregnant with momentous consequeuces to the community at large, and they have accordingly been argued with a zeal and ability fully commensurate with the importance imputed to them by the parties respectively, who have manifested so much interest in their final solution by this court.
The argument has taken the widest possible scope, exhibiting the most commendable industry, thorough research and signal ability, and it afíords me great pleasure to add that the very elevated tone of the discussion, marked as it was by the utmost propriety, courtesy and good temper, was alike gratifying to this court and honorable to the distinguished counsel who participated in it.
As I propose to discuss no topic of the law not precisely applicable to the questions under consideration, I will proceed at once to dispose of the objections in the order in which they have been made.
First, then, did the failure of the said Faulkner to take the oath prescribed by the act of the 10th of February, 1862, requiring attorneys residing in the State of Virginia to take the oath therein provided, have the effect to vacate his license ? I do not perceive upon what ground it can be so contended. The act itself does not declare his license null, for a failure to comply with its provisions, but only prohibits the attorney from practicing his profession without first taking the oaths, and subjects him to certain fines and penalties mentioned in the 10th section of chapter 38 of the Code of 1860, in the event such attorney does practice in any of the courts without complying with its provisions. And moreover, the act being a war measure, provides that it should only remain in force from its passage until the end of the war then pending in this country. I think it clear, therefore, that a failure by an attorney to comply with the provisions of this statute while it -was in force did not in any way affect or invalidate his license.
Did the formation of the State of "West Virginia have the effect imputed to it of ipso facto annulling the licenses of all [289]*289the attorneys resident within its limits? I am of opinion that it worked out no such results, and that it could no more effect the license of an attorney at law than the license of the merchant or hotel keeper. All licenses, it is most, obvious, derived under the old State, were of necessity continued and kept alive by the provision of the constitution of the new State expressly adopting all the laws of the former not in conflict with its provisions; and to hold otherwise, as it seems to me, and require the attorneys of the State — many of whom are gentlemen of great' experience and legal attainments — to go through the formula of a reexamination in order to procure a new license, would be absurd in the extreme, and very much savors of folly.
_ I think, therefore, the first objection is not sustained, and is wholly untenable.
I come now to the second and main objection which has been so strongly urged and ably argued, namely: is an attorney at law legally bound to take the oath known as the test oath, before he can be admitted to practice in the courts of this State ?
This question involves the true construction of the act of the 16th of November, 1868; for if this act embraces attorneys at law, then the application of Mr. Faulkner must fail unless he takes the oath therein prescribed; but if they are not so included, then there seems to be no impediment in the way of his admission to the bar of this court.
In the construction of this, as in all other statutes, we are to ascertain if possible, and effectuate the will or intention of the legislature, and in order to ascertain the legislative intent, we are to look to the surrounding circumstances at the time of the enactment.
Another well established and fundamental rule of Construction, cited and relied on by both parties to this controversy, is that all acts and provisions of the law in pari materia are to be taken and considered together. It follows, therefore, that in construing the act under examination, we must look to the object and purpose of the legislature as gathered from the light of surrounding circumstances, and [290]*290as illustrated and explained by tbe previous legislation of tbe old State relating to tbe same subject, and tbe constitution of tbis State.
The act of tbe 16th of November, 1863, it will be perceived, simply amends and re-enacts tbe first section of tbe act of tbe 26tb of June, 1863. Tbe first clause of tbe first section of tbe former act is a literal copy of the first section of tbe latter, except that there is a plain typographical error in tbe first line of tbe section in substituting tbe word of for tbe word or between the words office and trust, making it read “office of trust” instead of “office or trust,” as it was intended to be. This error is conceded by both parties, and is quite obvious when we consider that tbe legislature intended to apply a new and additional oath to tbe same class and not to diminish the class, as would be tbe case if taken literally as it stands, as none but officers of trust (if there can be such an office) would be embraced, whilst all officers who are not officers of trust (constituting as they do much tbe larger portion of tbe officers of tbe State,) would be excluded and absolved from taking tbe oath therein prescribed.
Tbe act under consideration amending and re-enacting the first section of tbe act of tbe 26th of June, 1863, must, of course, bear tbe same relation to tbe other sections of the latter act as tbe first section did before it was so amended and re-enacted. And as tbe first section of the. act of tbe 26th of June, 1863, before amended, as well as tbe first clause of the same section as amended, is an exact transcript of tbe first clause of tbe 5th section of tbe 3rd article of tbe constitution of tbis State, it follows that they all refer to and embrace the same class of persons and must of consequence receive tbe same interpretation.
Another rule of construction which I omitted to refer to in its proper connection, is that where tbe same or similar words are used in a statute which are found in a previous statute relating to the same subject matter, tbe latter act must receive tbe same construction as tbe former. And yet another rule founded in obvious reason and policy, is that [291]*291when any people voluntary change their jurisdiction and adopt a new one covering the same territory, they, in the absence of any express provision, of necessity adopt or retain the laws of the former in force at the time of the change, so far as they are consistent with the condition of things in the new jurisdiction. And this principle would apply with striking force to the status of West Virginia, even without the express provision found in its constitution adopting and continuing in force, so far as they are not in conflict with its provisions, the laws of the old State at the time of the creation of the new.
With these explanations we come to the precise question to be determined, namely, is an attorney at law, upon a fair construction of the act in question, included in it and therefore bound to take the test oath therein provided ? And if so included, is it because he is appointed to execute a civil trust or a civil office under the State or government? The former was not much insisted on, nor in my judgment can it be with any show of propriety or reason, for so far as my knowledge extends, it has never been seriously contended, that the position of an attorney was that of a trustee, but on the contrary it has been and is insisted that his true status is that of an officer, and that he in fact executes an office and not a trust.
The sole and vital question then, is, whether an attorney is embraced in the terms civil offieer in the sense of the statute ? Now the statute, it is most obvious, refers to and provides for the civil officers of the State or government, and to bring an attorney at law within its provisions, it follows, that he must fall within the definition of a civil officer of the State. And this, as I understand, was mutually conceded by the learned counsel for the State, who maintained with great earnestness, the proposition that an attorney at law in the popular and long established sense of the term, is a public officer of the. government, and is therefore brought directly within the letter and spirit of the act we are considering. Can this proposition be successfully maintained ? Is an attorney an officer, and if so, is he such a civil [292]*292officer of the government as is contemplated and provided for in the act under consideration?
The view of the question which I have been constrained to adopt renders it immaterial to investigate and undertake to settle the vexed question so much discussed, of the’precise status of the attorney in the courts of England, in the State of New York and other States' of the Union.
The true solution of the question, as it seems to me, may be readily found in the legislation and adjudications of the State of Virginia, the constitution of this State and the provisions of the act in question; and that a careful examination of these cannot fail to conduct us to correct conclusions, and leave no shadow of doubt on the mind as to the construction the act must receive — namely, that attorneys at law were not intended to be, nor can they by any liberality of construction be brought within the purview of the act of the 16th of November, 1863.
And if we were to undertake to hold otherwise, it will be found, I think, that we would encounter objections and difficulties at every step of the investigation, and if, after exercising all our powers of discrimination and astuteness, we should be able to satisfactorily reconcile one objection, we should very sooíj be met by another, more difficult and insuperable than the one already overcome.
The act of 1809, known as the anti-dueling act, included all persons elected or appointed to any “ office or place, civil or military,” (terms similar to those found in our act and evidently embracing the same class,) and it was held, and as I think correctly, by the supreme court of appeals of Virginia in Leigh’s case, as early as 1810, that it did not embrace attorneys at law as they were not officers under the commonwealth, within the meaning of that act, and it is abundantly clear that the subsequent legislation of the State relating to offices and attorneys .proceeded upon the settled hypothesis that attorneys at law were not deemed officers of the State or government. To hold otherwise we must convict the legislature of the unaccountable folly of intro[293]*293ducing and perpetuating for more than half a century and for no conceivable reason, the utmost discord and confusion in the law, by legislating under two distinct beads for the same class — namely, attorneys at law — while under one head (that relating to the officers of the State,) under which it is claimed attorneys are embraced, they are no where mentioned, whilst under the other head, (that relating to attorneys,) no other class or subject is referred to, but the whole status of the attorney is fully defined and regulated while at the same time there is the most direct and irreconciliable conflict between the various sections and provisions of the two heads. The antagonisms between these sections will appear so obvious to any one who will carefully examine and compare them as to render it unnecessary to refer' to them in detail. A few only must be sufficient to remove all doubts. For example: The first section of chapter 12 of the Code of Virginia, 1860, known as the anti-dueling act, provides that any person who fights or engages in a duel, is rendered incapable of holding any office or post, civil or military, legislative, executive or judicial, under the government of the commonwealth. The terms here used are the same as those found in the original act, under which Leigh’s ease was decided, except the word post is substituted for the word place in the original act, and of consequence embraces the same class. The 4th section of the same chapter declares that any person holding any such position as is mentioned in the 1st section, who shall be convicted and sentenced for felony, shall ipso facto forfeit his office and be henceforth incapable of acting therein under his previous election or appointment. Now by the 5th section of chapter 164, Code of 1860, p. 699, it is provided that “ any court before which any attorney has been qualified, on proof being made to it that he has been convicted of any felony may (or course may not) supersede his license.”
Again, the 11th section of chapter 13 of the Code of 1860, (relating to the oaths and bonds of officers,) page 103, provides that if any person elected or appointed to any office or post shall act in said office or post before taking the [294]*294oatbs proscribed in tbe 2nd section of tlie same chapter, be is subjected to a fine of not less than 100 dollars, nor more than 1000 dollars, while by the 4th section of chapter 164, the same Code, p. 699, an attorney at law who shall practice in any court in the State without first taking the oaths required by law, is made liable to a penalty of 150 dollars for each case in which he shall appear. It would follow, therefore, that the attorney would be subject to this double penalty for the same offense, if, as is claimed, he is an officer of the State and included in the act under consideration and the other acts relating to the officers of the government.
These are some of the consequences that would ensue if we give to the act the construction contended for; and there are many other discrepencies equally patent, but I shall not stop to pursue the investigation further.
I will only add, that coming down to the constitution of the State of West Virginia, and the various enactments of the legislature relating to the officers of the State (including the act of November 16th, 1868,) the same confusion and discord would ensue, if we adopt the rule contended for, by holding that attorneys at law are embraced in the act under consideration.
By holding as I think we are bound to, that the laws of Virginia and the constitution and laws of this State relating to officers do not include all attorneys at law; the variqus enactments are perfectly symmetrical and harmonious, while on the other hand if we should hold otherwise, as we are urged to do, the whole system is at once thrown into confusion, becomes inharmonious, disjointed and utterly impossible of any intelligent and rational interpretation. Why then should we disturb this harmony? Why seek by presumptions the most violent, by implications the most unwarrantable, to force within the purview of the act a class which it is so evident was not meant to be embraced by it?
I think the objections to the admission of Mr. Faulkner must be overruled.