In re the Oaths to be taken by Attorneys & Counsellors

20 Johns. 492

• Court: New York Supreme Court
• Decided: January 15, 1823
• Status: Published

Opinion

Platt, J.

The “ act to suppress duelling,” passed November 5th, 1816, requires “ every member of the senate or of the assembly, and every person who shall be elected or appointed to any office or place, civil or military, except town officers; and every person who shall be admitted a counsellor, attorney, or solicitor of the Court of Chancery, Supreme Court, or Court of Common Pleas,” &c. to take an oath that he has not been engaged in a duel, &c.

The sixth article of the new Constitution of this state, which took effect from and after the last day of December last, ordains, that members of the legislature, and all officers, executive and judicial, except such inferior officers as may by law be exempted, shall take and subscribe an oath or affirmation to support the Constitution of the United States, and the Constitution of this state, and also faithfully to discharge the duties of his office °, and that " no other oath, declaration, or test, shall be required as a qualification for any office or public trust.”

The question now presented, is, whether the new Constitution has repealed the provision of the " act to suppress duelling,” in regard to the oath required to be taken by attorneys and counsellors of this Court ? The point is simply, whether an attorney or counsellor holds an office or public trust, in the sense of the Constitution ? Lexicographers generally define “ office” to mean “public employment;” and I apprehend its legal meaning to be an employment on behalf of the government, in any station or public trust, not merely transient, occasional, or incidental. In common parlance, the term “ office” has a more general signification. Thus, we say the office of executor, or guardian ; or the office of a friend. In my judgment, an. attorney or counsellor does not hold an office, but exercises a privilege or franchise. As attorneys or counsellors, they perform no duties on behalf of the government $ they execute no public trust. They enjoy the exclusive privilege of prosecuting and defending suits for clients, who may choose to employ them. Various classes of persons are licensed in the city ofWew?York, with an exclusive privilege in their employment; yet they are not public officers. Physicians are also licensed, pursuant to statutes ; yet they hold no office or public trust, in legal construction. Lawyers are licensed to practice in one of the learned professions, and physicians in another; and there are many regulations by law, for their government, as distinct orders of men in society ; but they are not trustees, nor agents, for the public, any more than persons licensed to carry on the business of banking. The fees of attorneys are fixed by law; and so is the compensation of cartmen, and bakers, and ferrymen.

In deciding this question, it is'of some importance to remark, that the legislature, in framing the “ act to suppress duelling,” have discriminated between public officers, and attorneys and counsellors. They provide not only, that “ persons elected or appointed to any office or place, civil or military,” but that “ persons admitted” as counsellors and attorneys, shall also take the oath : Thus, by fair inference, giving an exposition which shows that lawyers, in their contemplation, were not public officers.

I am, therefore, of opinion, that the new Constitution has not abrogated the provision of the act which required attorneys and counsellors to take this oath.

Woodworth, J. concurred.

Spencer, Ch. J. dissented.