Seymour v. Ellison

2 Cow. 13

Opinion

Woodworth, J.

Admitting there is no constitutional provision on the subject, I should-hold it unfit for a Circuit Judge to act as counsel. It would be plainly so in relation, to the Chancellor or Justices of the Supreme Court; and I would make the rule universal.

Sutherland, J. Concurred.

Savage, Oh. J. I think the constitutional ground the true one; and I would refer the decision to this, instead of generaj unfitness. The section alluded to by Mr. Presi dent, provides that “ neither the Chancellor, nor Justices-of the Supreme Court, nor any Circuit Judge shall hold any other office or public trust? I am aware there is a ¿[ecisjon 0f the Supreme Court, upon the same question arising under the duelling law,

Footnotes

•

(a) that an attorney oircuunseller, as such, does not hold an office or public trust, with in the meaning of the constitution; but the same question ¡ately arose before the present Chancellor, who, after the fullest consideration, arrived at a different, and to me a satisfactory conclusion. I am of opinion, that an attorney or counsellor does hold an office or public trust, within the sense of the constitution.(b)

Sanford, Chancellor, concurred with the Ch. Justice.

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 that court, shall take an oath or affirmation to demean themselves uprightly, • and also to support the constitution of the United States: Rule of February term, 1790, and rule of February term, 1791. Attorneys and counsellors are thus considered, by that court, as officers of the United States, under the national constitution: and the terms of that constitution, “ executive and judicial officers,” are also the terms of the constitution of this state. This is not only high authority, but it is also most direct authority, upon the question, now arising here; the oaths to be taken by public officers being the subject of regulation in both constitutions, and the words used in both being the same. It is not to be doubted, that the same terms have the same meaning in both instruments; but if such a doubt could arise, it must vanish, when we perceive that the constitution of the state, in establishing the oath to be taken by officers of the state, includes also the oath to support the national constitution: thus, incorporating the two oaths, and making them applicable to the same persons and cases.

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.