#### Ex parte Thompson.

foreigners not naturalised, cannot be licensed as attornies in Carolina. >rth-

Appxication having been made to the Court by Mr. Thompson and Mr. Strange, who were foreigners not naturalized, for licence to practice as attornies in North-Carolina, the Court doubted the propriety of granting them the license asked, and having expressed a wish to hear a discussion of the subject, the point was argued by Messrs. Gaston and Ruffin for the applicants, and by the Mlorney General and Mr. Seawell, contra.

Gaston.

From the 7th section of the act of 1777, ch. 19. it might be supposed that the case of a foreigner was not in the contemplation of the legislature, but that the assembly legislated for our own citizens only; hut the 8th section provides that a foreigner, or the citizen of another state, shall reside one year, or produce a certificate from the chief magistrate of such foreign country of his unquestionable moral character. The constitution, ratified the preceding year, required a residence of one year before a foreigner could become a citizen. The 8th section distinctly enacts that foreigners may be licensed, and the terms are prescribed, and no oath is required except that the applicant shall demean himself faithfully as an attorney. The offices of the county are, by a just policy, restricted to citizens. An attorney is often in common parlance termed an officer of the Court, hut he is is no sense of a political character. Independent of the phraseology of the act, an attorney exercises his office under no commission from the governor or the judges.

It is important that persons who are to transact business of such weight to the community, should possess -good morals and professional skill, and the judges are appointed a board to ascertain that the applicant has *356these qualifications, but he does not hold his office of the judges. There is no oath of allegiance prescribed for at-tornies by this act.

It was deemed important that certain persons should take an oath of allegiance to the state, and the act of 1791 required that all persons who held an oflice of profit or trust should take an oath; an attorney was never considered an officer under this act.

By the 35th section of the constitution of North-Caro, lina, it is provided that no person shall hold more than one lucrative office: the governor may be and often is an attorney; the clerk of a Court in one county may practice as an attorney in another.

By the 6th section of the 1st article of the constitution of the United States, no person who has any office under the United States shall be a member of the house of representatives or a senator; will it be said that an attorney of the Supreme Court of the United States is hereby excluded from a seat in congress?

By the act of 1790, no person holding an office under the United States can be an officer of this state; an attorney in the United States’ Court can be an officer in North Carolina.

In Lee’s case (1 Mwmford’s Rep. 469.) it is shown that although the words of the teste acts of Great Britain ex-ted to all persons who have an office or place, yet the attornies are not comprehended: a special act was necessary for them.

No mandamus lies to restore an attorney. See the opinion of Judge Roane. There is no distinction between a private and a public attorney, except that the qualifications of the latter are ascertained by some tribunal, by which he is licensed to receive an appointment (or election) from each person employing him: the oath is only an additional and necessary precaution to secure the fidelity of a public attorney.

Ift the case of Thomas. Mdis Emmet of New York, it *357was decided that alienism was no bar to a person claiming license to practice as an attorney. (2 Caines 386, 7. note.) The Court, since that time, established a general rule excluding aliens. (4 Johns.)

In Massachusetts and New-Hampshire the whole matter is referred to the discretion of the judges; and one of the judges said to a distinguished individual from whom we derived our information,* that he should without difficulty admit an alien of good moral character.

It is against the policy of the state to exclude foreigners from our bar. The laws of the United States and of this state, receive foreigners with hospitality: we require no oath of allegiance until the alien demands political rights. Divines, physicians, merchants, artisans, are all permitted to bring hither their science, their talents, skill and capital, and apply them in the generous contest for wealth and distinction, and each contributes his share to the revenue and to the power of the state. There is no policy excluding lawyers. He and his clients are exposed to the inconvenience which may result from a war with his native country; but this must be provided for by him, or submitted to; it is an extreme case, and should not, therefore, exclude aliens from license.

Until recently it has beep the practice of this state to admit aliens as attornies.

In some states it is required that a person should be licensed before he can practice as a physician, surgeon, or apothecary; it never could be supposed that this conferred a political character on the physician, &c. even if an oath for the faithful performance of professional duty were required. An alien would be admitted.

Ruffin, on the same side.

Even if an attorney be an officer, and if he must take an oath of allegiance to the state, yet he may do so without being a naturalized citizen of the United States.

*358When it is required that a citizen of the United States take their oath of allegiance, it imposes no new duty on him; it is to give a greater sanction, by oath, to the per*-fornxance of prescribed duties.

There is nothing to forbid the requisition of the oath of allegiance from a foreigner, though not of abjuration of his own sovereign.

An alien is subject to all laws, and entitled to all protection; he is excluded from political privileges only, and is not capable of the crime Isesas majestatis.

An officer, says Roane, J. in Lee’s case, is one who can do the business of another without his special permission; an attorney is employed by his principal, and may be dismissed.

The fees to which a person is entitled do not constitute him an officer. In England certain fees are given to a person having the cure of souls; a foreign clergyman may have the fees.

It is not true that taking the oath of allegiance necessarily constitutes citizenship. Citizenship might, by law of the United States, be conferred without oath at all, and it is in the case of children coming hither with a foreign parent who is naturalized: and by the 40th section of the state constitution, it is expressly declared that an alien may acquire land on taking the oath of allegiance.

Contra.

An attorney must he considered an officer of the Court; it is on that ground that he is privileged from arrest during the sitting of his Court, and to arrest him is a contempt.

He is an officer, because being a clerk, he cannot practice in the Court of which he is clerk.

It is true that foreigners have been licensed among us, but solitary instances of the fact are entitled to no weight; it is uniform practice that has the weight of a cotempo-raneons construction; because the legislature, meeting *359every year, by permitting the practice gives a direct sanction.

The great reason against licensing a foreigner is, that he cannot be sued in the state Courts for nial practice, but may have his case transferred to the Courts of the United States.

The act of 1777, ch. 19. sect. 8. interposes two conditions, without which a licence shall not be granted; but it does not prohibit the judges from prescxibing other qualifications. The power to license is not derived from the act of 1777; it is inherent in the Coux’t, and is simply regulated by the act.

It may be matter of regret that individuals of talent will be excluded, but their exclusion will be less inconvenient than will be the consequence of an indiscriminate admission of foreign applicants.

*

The hon. Daniel Websle*-

Taylor, Chief Justice

This is an application on behalf of two gentlemen to be admitted to the bar of this state, both of whom are aliens: one, it is understood, is now, and has been for some time, x*esident in South Carolina; and the abode of the other has been in this state for a year past; but both have signified their intention to renounce their allegiance to their present sovereign, and to become naturalized citizens, according to the laws of the United States. Their claim to an examination has been asserted on the ground of right; and if the ,act of 1777 shall, according to the usual rules of interpretation, appear to convey a peremptory direction to the Court to examine them, we can only yield obedience to it, however striking might be the mischief and impolicy of such a course of legislation. It is very true, as argued, that the act referred to does not in terms prescribe citizenship as one of the qualifications for admission to the bar; but neither does it profess to enumerate all the qualifications; nor does it appear to be mandatory to the judges to admit upon the applicant’s possessing the qua*360lifications enumerated. The words are, “that no person, coming into this state from any other state, or from any foreign country, with an intention to practice the law, shall by the said judges be admitted to practice as an attorney, unless,” &c. The last sentence of the clause provides, “thatupon such qualification had, and oath taken, they may act as attornies during their good behaviour.’ ’ That this act was predicated upon the assumption that the applicants should be citizens of the state, according to the existing laws, when they applied, seems plain from the provisions of a law passed at the very same ■session, according to which all persons above sixteen years of age, after a week’s residence in the state, were compellable to take the oath of allegiance. The neglect or refusal to do this, subjected the party to a compulsory departure for the West Indies or Europe; or, if permitted by the County Court to remain in the state, he was adjudged incapable and disabled in law, to have, occupy, or enjoy, any office, appointment, licence, or election of trust or profit, civil or military, within the state, and shall not be capable of being elected to, or aiding by their votes to elect another to be member of assembly, and shall not, by themselves or deputy, attorney or trustee, execute any such office, trust or appointment, and shall be disabled to prosecute any suit at law or equity, or to be guardians, executors or administrators; with a variety of other disqualifications enumerated in the act, 1777, sects. 8 and 9. Iredell’s Sevisal. Thus it appeal’s that a simultaneous legislative act, with that regulating the admission of attornies, disqualified all persons from holding or obtaining a.-licence, who either refused or neglected to become citizens, according to such ceremonies as the pressure of the times enabled the legislature to prescribe. In looking at the extent and severity of these disqualifications, carried far beyond what the common law annexes to alienism, it is but an act of common justice to the legislature of that day to connect with our reviews the *361circumstances under which the enactments were made; for however justly they might be considered as subver-d J ° „„ , . sive of the customary law of nations, if passed in a time of tranquility, yet the new government had in truth more to dread from the disaffected inhabitants within the bosom of the country, from those who had owed a common allegiance to the same sovereign, than from aliens in the ordinary sense of the word; and it was an object of vital importance to the great experiment then about to he made, that those wlio were hostile to the new order of things should be deprived of all participation and sinister influence in its progress. Upon general principles, however, my opinion is, that none but citizens are contemplated in the first act, and that its necessary and genuine interpretation is to exclude aliens. The middle state in which the common law places a denizen is unknown here, except it exist in the right to hold lands immediately upon taking the oath of allegiance. The state may prescribe the terms upon which an alien may be enabled to hold lands within the limits of the state, and that part of the constitution of the state must still retain its force, (sec. 30th;) while the latter branch of the clause, prescribing the terms of citizenship, is annulled by the constitution of the United States, and the naturalization laws passed in pursuance thereof. With this single exception, all persons (I mean to speak only of free white persons,) residing here, are either citizens or aliens; the former, whether native or naturalized, being entitled to equal rights, with the exception of eligibility to the office of president, .which is confined to those who were citizens at the adoption of the constitution of the United States, Aliens, on the other hand, owe only a temporary allegiance, and have no rights hut such as are deducible from the law of nations, the most important of which are defined and incorporated in the municipal codes of most civilized countries; or such as are secured by treaties between different nations. An alien may claim to live in a *362foreign country without injury or molestation; but hs cannot justly assert the municipal rights and social privileges of a natural citizen. It is laid down by writers on the civil law, that whenever a foreigner travels out of his own country, he can only claim the benefit of the law of nations, having no right to the law or privileges of any particular place. Some discrimination is made in the law of every country between citizens and aliens, and though the advance of commerce and civilization has, every where, mitigated its ancient severity, yet there is hot at the present day any nation in which the restraints on aliens are milder or less vexatious than in this, none in which a plenary admission to the rights of citizenship may be more easily obtained. No conditions are required which the Safety of the republic does not demand, and which may hot be performed by all, rich or poor, who are likely to become useful members of society.

■ Whatever discretion resides in the judges, relative to the admission of attornies, ought to be exercised with a view to the advantage and security of the suitors in the several Courts; for to them the licence is a guarantee, that in the opinion of the magistrates signing it, the licentiate is politically, not less than legally and morally, qualified to transact their business. Yet in the event of a war being declared between the United States and any foreign nation or government, the authority under which he practices would not protect the subject of such government, not actually naturalized, « from being apprehended, restrained, secured and removed as an alien enemy,” to the great injury, possibly the ruin of numerous clients. (3 Laws U. 8. 84.) Even the judges of the state themselves might become the instruments of such apprehension and removal out of the state, under the second section of the same law. No one should be presented to the public under the panoply of such a licence, against whom an injured suitor would not have the full benefit of such legal remedy as the laws of the state, provide* in the *363event of fraudulent or negligent practice. (Act of 1743, ch. 37. R. C. JV*.) But such a suit brought against an alien attorney, for such a cause, might, if the matter in dispute were of sufficient amount, be removed to the Circuit Court of the United States, and by possibility, thence to the Supreme Court of the same government. There is no profession relative to which the public good more imperiously requires that its members should duly appreciate, and honestly maintain, the freedom, the purity, and the genuine spirit of our political institutions. These are so blended and interwoven with the civil rights of the citizen, they present themselves in such an infinity of relations, as additional abutments to the several charters of property and personal security, that it is difficult to conceive how a professional advocate, owing foreign allegiance and cherishing alien prejudices, can usefully vindicate principles in the abhorrence of which he may have been nurtured; how, on many important occasions, the most brilliant forensic talents can be successfully exerted, unless they are sustained and inspired by an ardent patriotism. The excellence of every human system of laws consists as much in their administration and practice, as in the theory itself. Yiewing the profession of the law as the source from which the superior judicial magistrates must be derived, and from which a lai’ge proportion of enlightened and efficient public officers is usually selected, every one must naturally feel solicitous that it should not fall into such hands as would lower it in the national opinion. It would be difficult to avoid this consequence if aliens were entitled to admission; for legal acquirements and private worth may subsist with inveterate prejudices against the principles of our government.. In such an arrangement society would cease to derive-that benefit from the profession which it now affords, by supplying a continual succession of men qualified and worthy to preside in the Courts of justice. No longer a nursery in which merit is trained under the directing *364hand of experience, and qualified to render manly and essential services to the community, the legal profession, “ in its nature the noblest and most beneficial to mankind; in its abuse and debasement the most sordid and pernicious,” would sink into a mere mercenary instrument, without sympathy in the public prosperity, and without, hold on the public confidence.