2 Cow. 13 | Court for the Trial of Impeachments and Correction of Errors | 1823
Admitting there is no constitutional provision on the subject, I should-hold it unfit for a Circuit
Savage, Oh. J. I think the constitutional ground the
Sudam, Senator, concurred with Mr. Justice Wood-WORTH.
The rest of the Court were of opinion, generally, (without mentioning the particular ground upon which they decided,) that, a Circuit Judge should not appear as counsel in this Court; and the hearing of the cause was postponed to the next session, to the end that other counsel might be retained, and prepared to argue for the respondents.
20 John Rep. 492.
IN THE CASE OF DANIEL WOOD.
Before Sanford, Chancellor.
In this case, it became a question, what oath or oaths should now be required from solicitors and counsellors, upon their admission to the bar. If the station of a solicitor or counsellor is an office or a public trust, the oath to be taken is prescribed by the new constitution, and no other oath can be required. If this station is not an office or a public trust, the oaths heretofore required must be taken.
The Chancellor.—So far as the legal profession is an occupation open to all, there is no reason to consider a lawyer as a public officer. The exercise of his profession is, in part, an occupation, in which every person is free . to engage ; but it is not so in respect to proceedings in the courts of justice. These proceedings are, according to our laws and usages, conducted by a distinct class of men, especially appointed for this service. The practice of the law, in the courts of justice, is permitted only to those who are appointed by the courts: the persons appointed are subject to the control of the courts; and they may be deprived of their right to pursue this occupation. These regulations evidently consider the practice of the law in the courts as a part of the administration of justice ; as a function, important not merely to pri•vate parties but also to the public. They are regulations, which are supposed to be necessary or conducive to a good administration of public justice. The admission of an attorney, solicitor or counsellor, is a general appointment to conduct causes before the courts: This station, thus conferred by public authority, has its peculiar powers, privileges and duties; and this station thus becomes an office in the administration of justice.
Attorneys, solicitors, and counsellors, are constantly denominated officers of the courts by which they are appointed. Our laws have required that upon théir admission, they should take a particular oath for the faithful discharge of their duties ; and that oath is termed by the legislature itself an oath of office. In this, as in other regulations, the legislature have considered and treated persons appointed to practice the law, as holding a species of office.
The oath of office prescribed by law for attorneys, solicitors and counsellors, is still requisite, if it is not superseded, by the existing constitution ; and either that oath, or the oath of office established by the constitution, must now be taken. If this station was an office before the adoption of the existing constitution, it is an office still; and if it is an office under the laws of the state, it is an office in the sense of the constitution.
The constitution of the union requires, that all executive and judicial officers of the United States, and of the several states, shall be bound by oath or affirmation to support that constitution. The supreme court of the United States have directed that counsellors and attorneys admitted to practice m
The terms “ office and public trust,” have no legal or technical meaning, distinct from their ordinary signification. An office is a public charge or employment, and the term seems to comprehend every charge or employment in which the public are interested. The words public trust, still more comprehensive, appear to include every agency in which the public, reposing special confidence in particular persons, appoint them for the performance of some duty or service. The obvious intention of the existing constitution is, to establish one oath for all officers and for every public trust; and I am accordingly of opinion, that the oath so established, must be taken, and consequently, that no other oath can be required.