USA > West Virginia > Encyclopedia of contemporary biography of West Virginia. Including reference articles on the industrial resources of the state, etc., etc. > Part 42
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CONTEMPORARY BIOGRAPHY OF WEST VIRGINIA.
motion sustained. Judge James H. Brown of our valley was then on our Supreme Court bench, and he it was, as President of the Court, who rendered the decision. Mr. Quarrier had been identified with the cause of Secession from its inception, but surrendered under General Lee with the Army of Northern Virginia and took the oath of amnesty and pardon provided in the proclamation of President Johnson. Until the decision in 'ex parte Quarrier' was rendered it was contended by the supporters of this law that an attorney-at-law was an officer, and as such was embraced in its meaning and intend- ment, and the Attorney-General of the State so argued. But this position by a course of reason and argument at once convincing and unan- swerable was shown to be untenable. The law- yers of our State, but none more so than those of our valley, debarred from the pursuit of their profession because of their alleged disabilities, hailed these decisions, one of which was in be- half of a lawyer of their immediate section, as a harbinger of better things, and despair gave way to hope, the sombre evil of misfortune seemed lifted and they thought the dawn of brighter days had actually appeared. But their joy was short lived. Their hopes were soon to be shattered and they were destined to be hid- den beneath the pall of a deeper gloom than that from which they had so recently emerged. On the fourteenth day of February, 1866 (a desecration of St. Valentine's day), our Legisla- ture passed what is known as the 'Attorneys' Test Oath.' This provided that no one should be permitted to practise law who could not make oath that he had not voluntarily borne arms against the United States Government or against the State of West Virginia, and that he had not given aid or comfort to persons engaged in armed hostility thereto by countenancing, counselling, or encouraging them in the same; that he had not exercised or attempted to exer- cise the functions of any office whatever under any authority in hostility to the United States or the State of West Virginia. This compre- hensive Statute now stood between nearly one- half of the lawyers of the Kanawha Valley, at least the older and more experienced ones, and the pursuit of their calling. Hon. Samuel A. Miller, then a resident lawyer of our valley, along with other attorneys of the State, applied to the Supreme Court in session at Wheeling, in the year 1867, to be permitted to qualify in the courts notwithstanding this Statute, contesting in their application the constitutionality of this law. But after an elaborate and most rigid ar- gument the Court delivered an opinion uphold- ing the validity of this enactment of the Legis- lature. So all our lawyers in the valley, as well as elsewhere in the State, who had been identified in any manner whatsoever with the cause of Se- cession, were unable to do anything in the courts
as a body until the adoption of our new Consti- tution in 1872. The hardship resultant upon these Statutes led to the incorporation in our 'Bill of Rights' of Section II. Article 3 of our new Constitution."
Mr. Hogg, continuing his history, says of Judge Brown, who succeeded Judge McComas on the bench of the Eighteenth Circuit, which comprised all the counties in the valley save Fayette:
"He met the emergency and held court in all the counties of his circuit, notwithstanding the pending of the civil war and imminent peril to himself, and the actual capture of the officers of courts and records, at different times in every county of the circuit. The records were carried to Richmond and kept as evidence to be used against him if captured during the war by the Confederates. After the death of Judge Harrison and the election of the Hon. Edwin Maxwell, Judge Brown was chosen the President of the Court. The first opinion of our new Su- preme Court of West Virginia was delivered by Judge Brown, at the January term, 1864, in the case of German vs. Steel, reported in Vol. I. of West Virginia Reports. His decision has since been cited and approved by the Supreme Court; holding among other matters that 'possession' alone is such element of title to lands as under the State Constitution to give jurisdiction to the Court of Appeals, concerning it. West Virginia, then the youngest State in the Union, was first called upon through the Supreme Court to de- termine the question whether a State has a con- stitutional right to secede from the Union. It was settled in the negative, in the case of Hood et al. vs. Maxwell, reported in Volume I. of the West Virginia Reports, and the opinion settling this questio vexata was delivered by Judge Brown of the Kanawha Valley in January, 1866, less than one year after the surrender of General Lee. The logic of this decision is that the se- ceding States were never out of the Union, and is in accord with the attitude of President John- son toward them when called upon to discharge the grave duties and responsibilities of the presidency of the United States after the res- toration of peace between the States. Judge Brown's opinions appear in the first four vol- umes of our reports and extend through a period of six years, from January, 1864, to January, 1870, and he delivered more opinions than any other Judge during his term of office. On the bench he was courteous, affable, and kind, at- tentive to the argument of counsel, and firm and resolute to uphold the authority and dig- nity of the Court."
It may be stated as a matter of fact that the motion of Mr. Faulkner to be admitted without
-
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taking the oath of November 16, 1863, preceded Mr. Quarrier's motion, and is in Vol. I .; while Mr. Quarrier's is reported in Vol. II. of the West Virginia Reports, although both were argued at the January Term, 1866. Mr. Faulkner was op- posed by the Attorney-General, and William Ware Peck for the State. A vast number of au- thorities are cited on both sides. Judge Brown's opinion is very clear and lucid. The oath as above was nearly a literal copy of the Federal oath of the Government which could not have meant " officer" to include lawyer, else distin- guished Congressmen and Senators would have been prohibited from practising during their legislative terms. On this point the Judge says:
" Great pains have been taken and much learn- ing displayed on the effort to prove that an at- torney-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 of trust within the meaning of the said test oath act."
In conclusion he said :
" I see no reason, therefore, in the second ob- jection, to authorize this Court in refusing to permit the applicant to qualify and practise 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."
It was therefore settled by this opinion that
" An attorney-at-law is not an officer within the meaning of the act of November 16, 1863, and is not required to take the oath therein pre- scribed for officers."
Judge Berkshire, President, concurred with Judge Brown1, but Judge Harrison dissented, both rendering lengthy and learned opinions, with many citations of precedents and authori- ties. In the Quarrier case, which Mr. Hogg has so fully presented, Judge Brown said, in begin- ning his opinion :
" This is an application of William A. Quar- rier, of Kanawha, to be admitted to practise as an attorney in this Court, standing in part on the same grounds as the motion of the Hon. C. J. Faulkner, just disposed of; and so far as the cases are the same, the same ruling must apply. But in addition to the circumstances of that, this case presents, in part, another state of facts and other objections raised for the con- sideration of the Court. The applicant was in
complicity with the rebellion from the begin- ning, surrendered and took the amnesty oath prescribed by President Johnson, and thereby received the executive pardon. Indeed it must not be forgotten that in this case no trea- son against the State of West Virginia, whose courts are invoked to consider the subject, has been either proved or confessed, and the only acts stated that could amount to the crime of trea- son were perpetrated against the United States, and for which the party has been pardoned by the Government. Now it would be straining the point too far to hold, as contended for, that the war being waged against the United States, of which the State of West Virginia was one, was therefore waged against her in the sense con- templated in the Statute against treason, and that, therefore, the acts in question were treason against the State and felony within the Statute. Since, therefore, no act of the Legisla- ture has been found disbarring the applicant or making it the duty of the Court to do so, it is not perceived on what authority the Court might in- terpose and refuse the applicant permission to qualify and practise as an attorney in this Court upon his taking the oaths required by law of all other attorneys. And this view of the case is sustained by the decision of the Court of Ap- peals of Kentucky in Tenny's case."
The other judges concurred. Motion sus- tained. On the 14th of February following this decision the Legislature passed the "lawyers' test oath," which measure was the cause of much hardship among the returned Secessionists, and practically put an embargo upon their earning a subsistence for their families. In Vol. IV. of West Virginia Reports is the cause celebre of Quarrier & Fitzhugh. This opinion, also by Judge Brown, then President of the Court, had been rendered at a former term, but not filed until the January term of 1870. The record says, "The act having been repealed since the decision, the judgment in this case now entered did not interfere with the rights of the parties to qualify." In this learned opinion of twenty- two pages, Judge Brown held that the act was invalid to disbar those attorneys who, before its passage, had been admitted to practise, and had taken all the oaths then required by law, but who could not take the test oath subsequently required. But that it was valid as to those at- torneys who applied for admission after its pas- sage; and so did not disbar Quarrier, who was in the first category; but did withhold from Fitzhugh, who was in the second, the privilege sought without compliance with its require-
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ments. The opinion refers to the Garland case, decided just before Judge Brown's opinion was delivered, but after it had been written. He says :
" Properly considered, therefore, the case of Garland in effect decides nothing more, in my humble opinion, than that a rebel attorney, being pardoned by the President, is thereby restored to the right to practise in the Federal Courts, whether the act of Congress be retrospective or prospective, or both. But inasmuch as a Presi- dential pardon can have no such effect upon a party's standing in the State Courts, that case can have no bearing on the case here."
Other cases in other States and the doings of Congress are ably and lucidly discussed through- out the opinion, and want of space alone pre- vents fuller extracts from the Judge's presenta- tion of the subject. Referring to the hardship of the act and comparing it with the severe measures of the past he says:
"Now, the act of 1866, if tested by the act of 1792, and the revised Code of 1819, or by the rebel ordinance of 1861, is certainly not more severe than they were on the unfortunate delin- quent in political differences who happened to be under the ban of power. Nor does it seem to me to exhibit a retrograde in humanity. Tried by the rule of doing to others as they do to us, it is not worse than others; but tried by that higher rule, of doing to others as we would have them do to us, it certainly comes short; but as the comparison shows progress in moderation, it is to be hoped that Charity will yet do its perfect work, nor wait unduly. And it is confi- dently believed from the signs of the times that the spirit of the age will require less time to melt the hearts and restore the sympathies of the sons than it took to soften the hearts of the sires from 1776 to 1849. Having given to this subject the consideration due it, and knowing that it enlists the sympathies of more than it concerns, I have been yet unable to find cause to reverse the ruling in the case of Messrs. Hunter, Price, and others. The motion of Mr. Fitzhugh must, therefore, be overruled."
The motion of Quarrier was overruled by Judges Berkshire and Maxwell. The motion of Fitzhugh was unanimously overruled at a for- mer term. The controversies as to the constitu- tionality of the several acts of the Legislature passed during the war, imposing disabilities upon those engaged in the rebellion, were sharp and of deep interest to a large part of the people of the State. The formation of the new State had been especially distasteful to those of its
people in sympathy with the Confederacy, many losing no occasion to manifest their hostility. Hence the Legislature pending the war, in which not only the integrity of the Union but the existence of the new State was involved, passed numerous laws with intent to guard the State against danger from its foes. One de- clared the offices vacant of those who adhered to the rebellion; another denounced confiscation against citizens who should join the enemy; an- other required all officers to attest their loyalty by taking the test oath before induction into office; another required suitors to do the same before using the courts to enforce their claims; another required voters to do likewise before voting, if challenged; and the act of February 14, 1866, required attorneys to take a like oath before being admitted to practise in the courts of the new State. These acts were constantly before the court and in the main their constitu- tionality upheld, the court holding that the right of a State in time of war to exclude its enemies from holding its offices and wielding its powers against it; or to exclude them from voting at its elections; or from suing in its courts; or from practising as attorneys and counsellors in its courts, is but the right of self- preservation : that of the wisdom and expediency of these measures the legislature alone was au- thorized to decide; and the judiciary could but inquire of their validity, and declare them void if beyond the power of the Legislature to pass them.
" That the State and national governments are widely different in their natures. The former, like the British parliament, has all power not prohibited to it in the constitution; the latter no power not granted to it in the constitution."
The act of 1863, prescribing the officers' test oath, was held valid by the Supreme Court of Appeals in Stratton's case; the acts of 1862, 1865, and 1866 prescribing the suitors' test oath were held valid in the case of Nadenbousch vs. Sharer. In a case by the Attorney-General to enforce the act denouncing confiscation against citizens who should join the enemy, the act was sustained, but the proceedings reversed for want of conformity to the act. The act prescribing the voters' test oath, if challenged, was sustained in the case of Randolph vs. Good. And no ap- peal or writ of error was ever taken, or at-
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teinpted, in either case, to the Supreme Court of the United States. The act requiring attorneys to take a like oath before admission to practise in the courts was also held valid in the case of Hunter, Miller, Summers, and Price, after being twice argued, and more elaborately and ably discussed than, perhaps, any other case in the State. The two former had been members of the Confederate Congress, and the latter Lieu- tenant-Governor of the Richmond government, and Summers, an officer in the Confederate arıny. At the request of Governor Price, who desired to apply for an appeal, Judge Brown, as the President of the court, appended his certifi- cate to the record of the case, certifying that the validity of the said act was drawn in ques- tion, as in conflict with the Constitution of the United States; and that the decision of the State Court was in favor of the validity of the act. And the case was presented to the judges of the Supreme Court of the United States for a writ of error; which was refused. While
Judge Brown never favored the passage of these restrictive laws, but did favor their repeal, yet he was too strong in his convictions of the sov- ereignty of the State and too much of a State- rights man to doubt the power of the State to enact them, and that they were binding on the courts and people alike until repealed by the Legislature. Nor was the Legislature oblivious to the fact that civil officers of the State and many peaceful citizens, non-combatants, were cap- tured and taken from their homes to Richmond and immured in Libby prison because they were such officers or adhered to the Union and the new State, and were there kept, to suffer and languish, till discharged on taking the oath to the Confederate States, and the Richmond gov- ernment, and some died there in prison. The Legislature by special acts relieved many attor- neys asking it; several of whose petitions Judge Brown signed and assisted, and he even drew a general bill to relieve all from the pressure of the act, and urged it upon the members of the Legislature, but it was thought by them safer to hasten slowly. In delivering the opinion of the court in the case of Randolph vs. Good, Judge Brown said: "It (the act) was a war measure, and one of many of a kindred nature which the war and the times originated, and alone justi- fied, and which it was hoped would disappear
with the occasion that led to their enactment." At the next session, on February 7, 1870, the Legislature repealed the act entirely as to all attorneys-after declaring it a remedial meas- ure, and its continuance of doubtful utility. A sketch of Judge Brown in "Prominent Men of West Virginia" gives this résumé of his career since the period included in the foregoing :
" After the expiration of his term as a Su- preme Judge, he resumed the practice of his profession at Charleston. He was again twice renominated by his party for the office of Su- preme Judge, and was defeated along with the rest of the ticket. In 1882, he was nominated and elected a member of the House of Delegates of West Virginia from Kanawha County, and was the acknowledged leader of his party in that assembly. Judge Brown was twice his party's candidate for Congress in the Third West Vir- ginia District, first in 1883, at a special election to fill a vacancy occasioned by the resignation of John E. Kenna, and again in 1886. He was both times defeated, but reduced the opposing majority from several thousand to a nominal figure. Judge Brown is a man of marked abil- ity. He is fluent in speech, logical in thought, pleasant in manner. In matters of religion he favors the largest liberty of conscience. He is a member of the Presbyterian Church, and for many years has been a Ruling Elder."
His advocacy of Charleston as the Capital of the State antedates any of the many efforts put forth by friends of that selection, and was made by him in the first Wheeling Convention in 1862. He has ever since persistently and continuously, by private request and public speech, ever kept the subject alive till finally settled by the vote of the people in 1877 in favor of Charleston, and deserves a due share of the honors its fruition has won for the friends and workers in such a well-fought cause. In 1881 he was a delegate from the West Virginia State Convention to the International Sunday-school Convention at Toronto, Can .; in 1883 a commissioner from the Presbytery of West Virginia to the Presbyterian General Assembly at Saratoga; in May, 1888, a delegate from the West Virginia State Bar As- sociation to the National Convention at Wash- ington, D. C., which formed the National Bar Association, and was chairman of his State dele- gation; in July, 1888, he attended the National Convention of the National Educational Associa- tion at San Francisco, Cal., and in 1891 he was delegate to the National Mining Congress held
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at Denver, Col., and a member of its Executive Committee; and though advanced in years and retired from public life, he has lost none of his interest in matters affecting the public weal. Judge Brown has been twice married. His first wife, the mother of his children, was Louisa M. Beuhring, daughter of Hon. Frederick G. L. Beuhring of Cabell County. She was born May 27, 1825, died October 5, 1872. Their children were: Virginia, born September 23, 1847; James F., March 7, 1852; Lucy, April 16, 1855; Emma M., April 6, 1861; Benjamin B., December 7, 1863; Eleanora D., August 30, 1868. His second wife was Sally S., daughter of William D. Shrewsbury, Esq. In 1885 he retired from the active practice of his profession and has since devoted his 1eisure to travel and to literary pur- suits, to the latter of which he has ever been in- clined even during the busy and exciting times of his long and active life. Judge Brown is so well known that a reference to his personality is not required in West Virginia, but it is pertinent to say that, though early an invalid, yet by tem- perance in all things he is now, in his seventy- fifth year, in excellent health and his tall form is still as straight as an Indian's. He is, as in the past, a man of broad and liberal views, ris- ing above the prejudice of the hour, ever emni- nently just, firm of purpose, resolute in pursuit of the right as he sees it, and earnest and un- flinching in the maintenance of it. Yet withal he is keenly alive to that which is sympathetic, moral, and magnanimous. He will long be re- membered as one of the fearless, patriotic and accomplished men in the annals of the Virginias.
GEORGE W. ATKINSON.
HON. GEORGE WESLEY ATKINSON, LL.D., of Wheeling, a distinguished lawyer, legislator, editor, and author, was born in Ka- nawha County, Va., June 29, 1845. He received his early education in the common schools of his native county, and after a thorough prepara- tion he entered the Ohio Wesleyan University, taking the classical course, and receiving the degrees of B. A. and M.A. from his Alma Mater. He subsequently took a post-graduate course at Mount Union College, Alliance, Ohio, which in-
stitution conferred upon him the degrees of Ph.B. and Ph.D. pro merito. For two years he taught school and studied law in Kanawha County. He next attended a course of law lec- tures at Columbian University and Howard University, Washington, D. C., for a period of one year at each institution, graduating with the degree of LL.B. Mr. Atkinson was admitted to the bar in 1875, and has since practised in Wheeling. In 1876, he received the degree of M.A. pro merito, from Indiana Asbury Univer- sity. His reputation as a lawyer is high, and he las a large and lucrative practice. His business in the United States Circuit and District Courts of West Virginia is very extensive. In 1890, U. S. Grant University, Chattanooga, Tenn., and the University of Nashville, Tenn., each conferred upon him the degree LL.D. He is the author of several works, entitled, " The His- tory of Kanawha," " After the Moonshiners," " Revenue Digest," " The West Virginia Pulpit," "Don't," and is one of the authors of " Prominent Men of West Virginia," a book of over one thousand pages and a valuable work of refer- ence, which has had an extensive sale. A sixty-one-page pamphlet, entitled "A. B. C. of the Tariff," reached a circulation of over two million copies, and caused considerable discus- sion pro and con. at the time of its publication. As a scholar, his knowledge is wide and varied, and his ideas are broad-gauged and progressive. As a poet, also, he possesses considerable dis- tinction, and he is the author of many beautiful productions. His "Maid of the Cumberland," a quite lengthy poem, has been pronounced by eminent critics a composition of great merit. In 1869 he was appointed by Gov. William E. Stevenson, Collector of Tolls of the Kanawha River Board, under the control of the State, which office he held for the full term of two years; was Postmaster at Charleston, Kanawha County, from March, 1871, to January, 1877; re- signed to accept the position of Deputy Collector of Internal Revenue; was appointed Internal Revenue Agent of the United States Treasury June 1, 1877, and resigned September 1, 1877, to accept the position of editor-in-chief of the Wheeling Evening Standard, which he resigned July 1, 1878, and was re-appointed Revenue Agent; resigned May 1, 1881, when he was ap- pointed United States Marshal for the District
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