prisonment be allowed, or punishment be inflicted, where the judges of the Circuit Court are divided in opinion upon the question. (d) The superior courts of the several territories of the United States, in which no district court is established, have the enlarged jurisdiction of circuit courts, subject to revision by writ of error and appeal to the Supreme Court. (e)2 The district and territorial judges of the United States are required to reside within their respective jurisdictions; and no federal judge can act as counsel, or be engaged in the practice of the law. (f) 6. Jurisdiction of Auxiliary State Courts. -The state * 306 courts are, in some cases, invested, by acts of Congress, (d) Act of April 29, 1802, [c. 31,] sec. 5, 6. son R. Bridge, 1 Black, 582; Wilson v. Barnum, 8 How. 258; Dennistoun v. Stewart, 18 How. 565; Brobst v. Brobst, 4 Wall. 2; r1 and distinctly stated, Sadler v. Hoover, 7 How. 646. Several questions may be decided at the same time. United States v. Chicago, 7 How. 185. But the division of opinion must be actual, and if certified pro forma only, or if the question rests on a hypothesis, it is the practice of the Supreme Court to decline to answer. Nesmith v. Sheldon, 6 How. 41; Webster v. Cooper, 10 How. 54; Pelham v. Rose, 9 Wall. 103. A division on a motion addressed to the discretion of the court does not 1 Weeth v. N. E. Mort. Co., 106 U.S. 605. The request to certify need not be expressly stated, if it can be fairly inferred from the record. United States v. Harris, 106 U. S. 629. As to the difference of procedure in civil and criminal cases, see Rev. St. U. S. §§ 650-652; VOL. I.-23 present a point which can be certified, although touching its jurisdiction. United States v. Avery, 13 Wall. 251; United States v. Rosenburgh, 7 id. 580. By the act of June 1, 1872, in case of a division of opinion, that of the presid ing justice is to prevail for the time being; but after final judgment, decree, or order, it is the judges' duty to certify the difference as to any question which might have been reviewed on certificate under the act of 1802, and then either party may remove the final judgment, decree, or order to the Supreme Court, on writ of error or appeal, subject, &c. x2 2 Ante, 299, n. 1. Ex parte Tom Tong, 2 Supr. Ct. Rep. 871; 108 U. S. 556. 2 The right to a review in such case is irrespective of the amount in controversy, even since the act of 1875 (18 St. at L. 315). Dow v. Johnson, 100 U. S. 158. [353] prosecutions for fines, penalties, and forfeitures, arising under the revenue laws of the United States; and the State or county courts adjoining any collection district, in relation to taxes or internal duties which may, at any time hereafter, be assessed, have cognizance of all suits for taxes, duties, fines, penalties, and forfeitures, arising thereon. (a) In attending to this general survey of the organization of the judiciary establishment of the United States, it will be perceived that all the great features of the system are to be found in the act of Congress which was passed in September, 1789, at the first session of the first Congress under the present Constitution. That act has stood the test of experience since that time, with very little alteration or improvement; and this fact is no small evidence of the wisdom of the plan, and of its adaptation to the interest and convenience of the country. The act of 1789 was the work of much profound reflection, and of great legal knowledge; and the system then formed and reduced to practice has been so successful and so beneficial in its operation, that the administration of justice in the federal courts has been constantly rising in influence and reputation. The principal officers of the courts are attorneys and counsellors, clerks and marshals.1 (a) Vide infra, 400-405. [As to next paragraph, see 300, n. 1.] 1 To these may be added commissioners and registers in bankruptcy. Commissioners were first authorized to be appointed by the Circuit Court for the purpose of taking bail and affidavits in civil cases, by the act of Feb. 10, 1812. See act of March 1, 1817; Admiralty Rules, 5, 35. By the latter act they could also take depositions de bene esse in certain cases, but could not issue a habeas corpus ad testificandum. Ex parte Barnes, 1 Sprague, 133. Since these acts their powers have been considerably enlarged. By the act of Aug. 23, 1842, they were to exercise all the powers that any justice of the peace or other magistrate of any of the United States might then exercise in respect to offenders for any crime or offence against the United States under the Judiciary Act, § 33, and to issue process for seamen's wages, as authorized by act of July 20, 1790, § 6. By the act of Aug. 8, 1846, they were to enforce the decisions of foreign consuls in certain cases. When authorized to do so by the United States courts, they may, upon complaint under oath, issue warrants for the apprehension of persons whose extradition is sought under any treaty or convention of the United States, and hear and report upon the evidence to the Secretary of State. Act of Aug. 12, 1848, § 1. The commissioners should be specially designated for the purpose. In re Henrich, 5 Blatchf. 414. And special commissioners may be appointed for the * 7. Of Attorneys and Counsel. - Attorneys and counsel are regularly admitted by the several courts, to assist the parties in their pleadings, and in the conduct of their causes in those cases in which the parties do not appear and manage their own causes personally, as they are expressly permitted to * 307 do. (a) This privilege conceded to parties, though reasonable in itself, is, upon the whole, useless; and the necessity of a distinct profession, to render the application of the law easy and certain to every individual case, has always been felt in every country under the government of written law. As property becomes secure, and the arts are cultivated, and commerce flourishes, and when wealth and luxury are introduced, and create the infinite distinctions and refinements of civilized life, the law will gradually and necessarily assume the character of a complicated science, requiring for its application the skill and learning of a particular profession. After the publication of the twelve tables, suitors at Rome were obliged to resort to the assistance of their patrons, and judicial proceedings became the study and (a) Act of Congress of September 24, 1789, sec. 35. purpose. United States v. Stowell, 2 United States. Act of April 9, 1866, c. Curtis, 153. 31, § 4, 14 U. S. St. at L. 28. The action of a commissioner in committing a prisoner may be revised on habeas corpus in conjunction with a certiorari. In re Henrich, 5 Blatchf. 414; In re Martin, ib. 303; ante, 301, n. 1. Their number was enlarged, and superior courts of territories empowered to appoint them, by act of Sept. 18, 1850. See act of April 9, 1866, § 4. By the act of Feb. 24, 1855, they were empowered to issue warrants for the arrest of deserters from foreign vessels in certain cases. By the act of May 15, 1862, they were given powers to take surety of the peace and for good behavior, like to those of other officers, under the act of July 16, 1798. They are to institute proceedings against persons violating the Civil Rights Bill, and have the same duties with regard to offences under that act as they are authorized to exercise with regard to other offences against the laws of the They are to exercise all the powers that any justice of the peace may exercise under the act of July 20, 1790, § 7. Act of July 28, 1866, c. 309, 14 U. S. St. at L. 343. They may take proof of debts in bankruptcy in all cases, subject to the revision of such proofs by the register and by the court. Act of July 27, 1868, c. 258, § 3, 15 U. S. St. at L. 228. Their numbers are increased, and they are to institute proceedings against persons violating the act of May 31, 1870, c. 114, and have the same duties with regard to offences under that act, as they are authorized to exercise with regard to other offences against the laws of the United States. 16 U. S. St. at L. 142, § 9. Provision for the appointment of registers in bankruptcy is made, and their duties are defined in the act of March 2, 1867, §§ 3-7, and act of July 27, 1868, § 3. practice of a distinct and learned body of men. (b) The division of advocates into attorneys and counsel has been adopted from the prevailing usage in the English courts. The business of the former is to carry on the practical and more mechanical parts of the suit, and of the latter to draft or review and correct the special pleadings, to manage the cause at the trial, and also during the whole course of the suit to apply established principles of law to the exigencies of the case. In the Supreme Court of the United States, the two degrees of attorney and counsel are kept separate, and no person is permitted to practise both as attorney and counsellor in that court. This was by a rule of the court in February, 1790; and when, afterwards, in August, 1801, the court declared that counsellors might be admitted as attorneys, on taking the usual oath, this did not mean or imply, that if a counsellor was thus admitted as attorney, he could continue to act as counsellor. He must make his election between the two degrees.1 In all the other courts of the United States, as *308 well as in the courts of New York and the other states, the same person can be admitted to the two degrees of attorney and counsel, and exercise the powers of each. (a) Besides the ordinary attorneys, the statute has directed (b) that a meet person, learned in the law, be appointed to act as Attorney-General of the United States; and besides special and (b) Gravina, de Ortu et Prog. Jur. Civ. sec. 33, 40. (a) In the convention which met in the year 1846 to revise the constitution of New York, there was a strong effort made to remove all impediments to the free admission of all persons to the courts of justice to act as counsel and attorneys. But the character and utility of the profession were saved, and the attempted innovation resulted in the constitutional provision, that "any male citizen of the age of 21 years, of good moral character, and who possesses the requisite qualifications of learning and ability, should be entitled to admission to practice in all the courts of this state." This was leaving the rule for admission to be essentially as it before existed, for it must of necessity belong to the courts, in which the admission is applied for, to judge of the satisfactory test of the good moral character and the requisite learning and ability of the candidates. The courts ought to be vigilant and thorough in their examination respecting the ability, learning, and character of candidates for admission to practice as advocates in the courts. The interests of clients, the safety of the community, the purity, intelligence, and integrity of the administration of justice, and, indeed, the preservation of all our constitutional rights and liberties, are deeply concerned in the elevated, moral, and educational standard and character of the members of the legal profession. (b) Act of Congress of September 24, 1789, sec. 35. 1 He can now act as both. Ex parte Garland, 4 Wall. 333, 375. incidental duties, it is made generally his duty to prosecute and conduct all suits in the Supreme Court in which the United States are concerned, and to give his advice and opinion upon questions of law, when required by the President or the heads of the departments.1 Each judicial district has likewise a public officer to act as attorney for the United States in the district, and to prosecute all delinquents for crimes or offences cognizable under the authority of the United States, and to prosecute all civil actions within his district in which the United States are concerned. (c) 8. Of Clerks. Clerks are appointed by the several courts, except that the clerk of the district court is ex officio clerk of the circuit court in such district. They have the custody of the seal and records, and are bound to sign and seal all process, and to record the proceedings and judgments of the courts. And this is a trust of so much importance, that, in addition to the ordinary oath of office, clerks are obliged to give security to the public for the faithful performance of their duty. (d) To guard still further (c) Ib. The act of Congress of 29th May, 1830, [c. 153,] sec. 1, instituted the office of Solicitor of the Treasury; and it is his duty to direct and superintend all orders, suits, or proceedings in law or equity, for the recovery of money, chattels, and lands, in the name and for the use of the United States, and to have charge of all lands and other property conveyed to the United States in payment of debts, and of all trusts created for their use in payment of debts due to them, and to sell and dispose of lands assigned to the United States, or vested in them by mortgage in payment of debts; and to instruct the district attorneys, marshals, and clerks of the circuit and district courts, in relation to suits in which the United States are concerned. See the act aforesaid, in which his powers and duties are specifically detailed. [See 12 U. S. St. at L. 739; 14 id. 207.] (d) Act of Congress of September 24, 1789, sec. 7. 1 But not when required by a subordinate officer, 10 Op. Att.-Gen. 458; and only in actual cases presented for the action of an executive department, 11 Op. Att.-Gen. 189; ib. 431; 10 id. 50. See, generally, as to this office, 6 Op. Att.-Gen. 326, and especially the act of June 22, 1870, c. 150, 16 U. S. St. at L. 162, establishing the Department of Justice, and also creating the office of Solicitor-General. An act of Jan. 24, 1865, requiring a test oath of attorneys and counsellors before they should be allowed to practise in the United States courts, was held unconstitutional in Ex parte Garland, 4 Wall. 333, stated at length, post, 409, n. 1. See Ex parte Law, 35 Ga. 285; Murphy & Glover Test Oath Cases, 41 Mo. 339. See further, as to the constitutional rights of attorneys, Randall, Petr., 11 Allen, 473; Ex parte Bradley, 7 Wall. 364. The clerk of each circuit court is to be appointed by the judge of that circuit. Act of April 10, 1869, c. 22, § 3, 16 U. S. St. at L. 45. As to his bond, see act of March 3, 1863, c. 93, § 2, 12 U. S. St. at L. 768. |