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 *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.

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 exhibit an account of all the moneys remaining in court. (e) *309 9. Of Marshals. * 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. (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

(e) Act of March 3, 1817, [c. 108.]

(a) Act of Congress of September 24, 1789, sec. 27.

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.x1

r1 By statute, March 1, 1879, c. 125, § 9, 20 St. at L. 341, marshals are given power to arrest persons found operating

(b) No. 77.

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.

illicit distilleries, and to take them before a judicial officer within the county.

*

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 of establishing the treasury department, (a) *310 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 there is good sense and practical utility in 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 (a) September 2, 1789, sec. 7.

*

declared by the first Congress in opposition to that high *311 authority of the Federalist; and should have been supported or acquiesced in by some of those distinguished men who questioned or denied the power of Congress even to incorporate a national bank. (a) 1

The marshal is obliged to give security to the United States in twenty thousand dollars, for the faithful performance of the duties of his office by himself and his deputies, and, together with his deputies, to take an oath of office. (b) By the common law, the death of the principal is a virtual repeal of authority of the

(a) As the instances of the exercise of the power of removal from office have been multiplied beyond all former example, under President Jackson's administration, the propriety of the concession of the power itself, by the first Congress, has been strongly questioned. It is the power of Congress, at any time, says a high authority, to correct the extensive operation of this executive power, by placing the appointment of inferior officers (and which would include ninety-nine out of a hundred of the lucrative offices of the government) in other hands. 3 Story's Comm. 394–397.

(b) Act of Congress of September 24, 1789, sec. 27. By the act of Congress of April 10, 1806, c. 21, the marshal's bonds are to be filed and recorded in the office of the clerk of the district court or circuit court sitting within the district; and suits for the breach of the condition of any such bond may be instituted in the name and for the sole use of the person injured by a breach of the condition of the bond, and judgments on the bond are to remain as a security for the benefit of any person injured by the breach thereof.

1 Tenure of Office Acts.By the Tenure of Office Act of March 2, 1867, 14 U. S. St. at L. 430, c. 154, § 1, it was enacted that every person who is appointed to any civil office by and with the advice and consent of the Senate, and who becomes duly qualified to act therein, shall be entitled to hold such office until a successor shall have been in like manner appointed and duly qualified, with a proviso as to the heads of departments. It may be considered as settled by the discussion which this act received before and after its passage, and by the events to which it gave rise, that it was within the constitutional power of the legislature to pass. Johnson's Trial, passim, 2 Am. Law Rev. 560; Cong. Globe, Feb. 1, 1867, Mr. Hale's Speech; United States v. Guthrie, 17 How. 284, 298; Webster's Speech in Senate, Feb. 16, 1835, Works, iv. ; Marbury v. Madison, 1 Cranch, 137, 167, 168, 172.

The above provisions were repealed, however, by the act of April 5, 1869, c. 10, 16 U. S. St. at L. 6, and it was enacted instead, "that every person holding any civil office to which he has been or hereafter may be appointed by and with the advice and consent of the Senate, and who shall have become duly qualified to act therein, shall be entitled to hold such office during the term for which he shall have been appointed, unless sooner removed by and with the advice and consent of the Senate, or by the appointment, with the like advice and consent, of a successor in his place, except," &c.

The President is empowered, during any recess of the Senate, in his discretion, to suspend any such civil officer, except United States judges, until the end of the next session of the Senate, and to fill the vacancy in the mean time.