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 *307 causes personally, as they are expressly permitted to

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.

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 su perior 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 of fences against the laws of the United States. Act of April 9, 1866, c. 31, § 4, 14 U. S. St. at L. 28.

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. In all the other courts of the United States, as well as in the courts of New York and the other states, *308 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

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(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 practise 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.

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 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. (x) They have the custody of the

(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.]

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 State courts, was held uncon

(x) An order of court requiring a service to be performed is sufficient authority as between a clerk of court, or a commissioner, and the government for the

stitutional 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.

performance of the service, and for the allowance of the proper fee therefor. United States v. Van Duzee, 140 U. S. 169; United States v. Allred, 155 U. S. 591.

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
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 the 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 ex-
hibit an account of all the moneys remaining in court. (e)
9. Of Marshals. * Marshals are analogous to sheriffs at * 309
common law.1 (x) They are appointed for each judicial dis-
trict 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,

(d) Act of Congress of September 24, 1789, sec. 7.
(e) Act of March 3, 1817, [c. 108.]

1 The marshals of the several districts and their deputies have the same powers in executing the laws of the United States as sheriffs and their deputies in the several states have by law in executing the laws of the respective states. Act of July 29, 1861, c. 25, § 7, 12 U. S. St. at L. 282. [By statute, March 1, 1879, c. 125, § 9, 20 St. at L. 341, marshals are given

(x) In general if the marshal, in enforcing State remedies, performs the same duties as are imposed by State law upon the sheriffs of the State courts, he can maintain in the circuit court the same actions that the sheriff has in the State court. Wade v. Wortsman, 29 Fed. Rep. 754. If replevin by process from a State court is attempted of goods in a marshal's possession, he can sue on the bond in his

power to arrest persons found operating illicit distilleries, and to take them before a judicial officer within the county.]

A vacancy in the office of marshal may be filled by the circuit judge until an appointment is made by the President. Act of March 3, 1863, c. 93, § 2, 12 U. S. St. at L. 768.

own name in the Federal court without regard to the citizenship of himself and the obligors in the bond. Patterson ". Mater, 26 Fed. Rep. 31. A suit brought upon the marshal's bond in a Federal circuit court is not dependent upon citiizenship. See Adler v. Newcomb, 2 Dillon, 45; Wetmore v. Rice, 1 Biss. 237; United States v. Davidson, id. 433; Lawrence v. Norton, 13 Fed. Rep. 1.

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. (a) 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 case of officers appointed to hold at pleasure, resided anywhere but in the body which appointed, and of course whether the consent of the Senate was not requisite to remove. 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, (b) "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,

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after great consideration and discussion, was different. *310 In the act of establishing the treasury department, (a) 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 (a) Act of Congress of September 24, 1789, sec. 27.