Duijns vested

in state courts.

(4.) The state courts are, in some cases, invested by acts of Congress, with the cognizance of cases arising under the laws of the United States. By the acts of March 8th, 1806, and April 21st, 1808, and March 3d, 1815, the county courts within, or adjoining the revenue districts, in certain parts of the states of New-York, Pennsylvania, and Ohio, are authorized to take cognizance of 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.

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 1799 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.) 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,

Attorneys and Counsel

a Vide infra.

as they are expressly permitted to do." 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 practice of a distinct and learned body of men. The division of advocates into attorneys and counsel has been adopted from the prevailing usage in the EngJish 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 an attorney, he could continue to act as counsellor. He must make his election between the two degrees. In all the other courts of the United States, as well as in the courts of

a Act of 24th September, 1789, sec. 35. b Gravina, de Ortu et Prog. Jur. Civ. sec. 33. 40.


New-York, the same person can be admitted to the two degrees of attorney and counsel, and exercise the powers of each.

Besides the ordinary attorneys, the statute has directed, that a meet person, learned in the law, be appointed to act as attorney general of the United States, and besides special and 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. 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 concerned.

(2.) 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. To guard still further against abuse of office, all moneys paid into the Circuit or District Courts, or received by the officers, in cases pending therein, are required to be immediately deposited in bank; and no money can be drawn out of bank, except by an order of a judge, to be signed by him, and certified of record by the clerk. The clerks are likewise bound, at every regular session of the courts, to exhibit an account of all the moneys remaining in court."


a Act of 24th Seplember, 1789, sec. 35.
b Ibid.
c Act of 24th September, 1789, sec. 7.
d Act of March 3d, 1817.


(3.) Marshals are analogous to sheriffs at common law. They are appointed for each judicial district by the President and senate for the term of four years, but are removable at pleasure ; and it is the duty of the marshal to attend the District and Circuit Courts, and to execute, within the district, all lawful precepts directed to him, and to command all requisite assistance in the execution of his duty. There are also various special duties assigned by statute to the marshals. The appointment of deputies is a power incidental to the office, and the marshal is responsible civiliter for their conduct, and they are removable not only at his pleasure, but they are also by statute made removable at the pleasure of the District or Circuit Courts. The act says, that the marshal shall be removable at pleasure, without saying by whom; and on the first organization of the government, it was made a question whether the power of removal, in the case of officers appointed to hold at pleasure, resided any where but in the body which appointed, and of course whether the consent of the senate was not requisite to re

This was the construction given to the constitution while it was pending for ratification before the state conventions, by the author of the Federalist. “ The consent of the senate," the Federalist observes, " would be necessary to displace as well as to appoint;" and he goes on to observe, that “ those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body, which, from the great permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government.” But the construction which was given to the constitution by Congress, after great consideration and discussion, was different. In the act for es


a Act of 24th September, 1789, sec. 27. b No. 77.

tablishing the treasury department," the secretary was contemplated as being removable from office by the President. The words of the act are, “That whenever the secretary shall be removed from office by the President of the United States, or in any other case of vacancy in the office, the assistant shall act,” &c. This amounted to a legislative construction of the constitution, and it has ever since been acquiesced in and acted upon, as of decisive authority in the case. It applies equally to every other officer of government appointed by the President and senate, whose term of duration is not specially declared. It is supported by the weighty reason, that the subordinate officers in the executive department ought to hold at the pleasure of the head of that department, because he is invested generally with the executive authority, and every participation in that authority by the senate was an exception to a general principle, and ought to be taken strictly. The President is the great responsible officer for the faithful execution of the law, and the power of removal was incidental to that duty, and might often be requisite to fulfil it.

This question has never been made the subject of judicial discussion; and the construction given to the constitution in 1789, has continued to rest on this loose incidental declaratory opinion of Congress, and the sense and practice of government since that time. It may now be considered as firmly and definitively settled, and I entertain no manner of doubt of the good sense and practical utility of the construction. It is, however, a striking fact in the constitutional history of our government, that a power so transcendent as that is, which places at the disposal of the President alone, the tenure of every executive officer appointed by the President and senate, should depend upon inference merely, and should have been gratuitously declared by the first Congress, in opposition to the high authority of the

a September 2d, 1789, sec. 7.

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