Evening star. [volume] (Washington, D.C.) 1854-1972, 1867-02-12

whether it would be authority beyond the Inn.
ls OF the legitimate issue prevented. Go tside
OF the issue, az most IL could only Be consid.
| judges. -
The question remains to be considsrsd in
this con nection, con cedins the decI ion sf the
supreme Court to be in point whetner In is
mandatory upon the judgment Of this court
TN: question is to be Determined By the legal
-decision mandatory upon the ia rmeut Of mis-
court In the strict definition Of their ant aority
"a, ny mSst have the power TO executs It, upon
er they POSSESS IN this behalf is given by act
\ OF congress, and regulated by the right of ap-
peal, aud confessedly does not extend to the
doubt upon this point. that doubt has bean re.
moved by the repeated decisions OF that emit
nent tribunal An OK parte Burr 9th Wheat.
o on; PC Ce,si justice arshali, delivering the
| "On one hand the profession of an attorney
o.. great Importance TO au dividual, and
tne prosperity OF his whole life may depend on
its exercise. The right TO exercbse it ought aot
70 De hehiy or capriciously taken from him
Un the other hand, 10 is extremely desirable
that the respectabilIty OF the bar should be
maintained, and that its harmony with the
bench should be preserved. For these objects,
some controlling power, some discretion ought
10 reside IN the court
This discretion ought 10 be exercised with
great moderation and judgment, bat it m 10 st be
exercised, and no o'her tribunal can decide in
a case of removal from the bar with the sans
means OF infor nation as the court itself II
there be revising tribunal which possesses
controlling authority, that tribunal will al
, %ays Eei the aeileacy Of interposing It's au-
monty, and would do so only in PLAN case
In sr pdrte, John l.. Tilhnghast, attn Pet, It's,
the Court said: = - 80 -
"WheD, on a former occasion, a p,and1mu,
was applied for 10 restore Mr. TIlImgbast TO
the roll Of couBsellors,t TO The District Court
THIS court refused to interfere with the matter
Zanee."
And in e1 pdyte, Secumb, 10th Howard, page
10, Chief Justice fancy SAID:
"ln the case of TillinghastysC Con king which
came before this court in January term 1s2g
similar motion was overruled by the court
The Gaze rs not reported to the court, but a
brief written opinion remains on the II les of
the court, in which the court saws that the
motion Is oyerruled upon the ground that IL
hsd not jurisdiction in the case The removal
OF the attorney and counsellor In that case took
place in district court of the United States
exercising the power of a circuit court in a
court OF mat character, and the relations be-
tween the court and the attorneys and conn
sellers " no practice In it, and their res pectvs
rights and duties, are regulated by the COM
mon law. Aud ii has been we'll settled by the
common rules an d practice o. the common Iav
courts that II rests ezciusirely with the conrt IN
determine who is qualified to become one of
nus oheers as an attorney and counsellor, and
for what cause he ought to be removed"
After these repeated decisions this oues,ion
may be SAID TO be res jltdicafu
1be inherent right OF each cour. to regulate
LIS own lies OF practice, inc lu ding the T. rms
OF admission OF attorneys to and dismissions
from the bar, has come down TO us unuues-
,lohed through the long lite OF the common
law WIN regard TO this court, and its inner
ent power OF making it's rules of admission =,
and dIsmisslon from the bar, Con gress the Ia W.
maker OF this court, has not only confirmed
the common law-power of the court hitherto
seemed almost necessary to the pxIstence 81
the court, but made IL the duty Of the court in
the organic act OF its creation to exercise that
power, leav1ng the court IN its discretion the
sole tribunal o pass upon the question sub.
Jeot only TO the penalty of impeachment for |
tne abuse OF the power These considerations |
aye conclusive ef the ASSUMPTION thar the
opinion referred 10 is authority with This
court While We deny to this decision of the
supreme Court the office of such authority,
we acknowltdge the potency of that TRIBUNAL
as the instructor of judgment, and if H. had
united lite great wisdom n the pronunciation
OF opinion invalidating the rule in contra
Nersy, we should feel disposed TO bow to it,
BUTT comes 10 us as ad visory. and we must
receive 1t upon the conditions upon which
l; is sent. These conditions IA the way OF ad-
wee are that majority of one of that Court
counsels the condem alton of the rule while
minority OF one less than the majority coun-
sells lis support, leaving this Court to form ITS
own opinion without any substantial aid from
the decision.
If we were to adopt the conclusion of the
majority it would he at the expense of con.
demnInga law of Congress in defiance OF the |
rule OF Iud gment already referred to, and sub
stanually upon the opinion of a single Justice |
all, weighed In the balance, is redu ced 10 the |
opinion OF one Justice. a result, however |
olhdlng, NOT very Impressive OF wisdom when |
applled 10 the condemnation of a law
In January term, 1885, the Supreme Court,
through Chef Justice Marshal refused 10
take up ne cases of the Mayor of New York |
VS.. George Min and George Bricer VS. the
Conmonwealth's Bank OF Kentucky, 10Th Pc |
ters, $50 because the court was 'snOt full" in
consequence OF The resignation Of Justice Du-
This controversy Of judicial opinion. largely
attributable 10 political excitement, Demon
strafes 10 our judgment that the question in |
IL NJ N 70 vp with
sloerauons as 10 render IL eminently proper |
tnat 1t should be referred back TO the political
power OF the nation; and the law making
power which created it, be cons q ted in It's |
modification or repeal. |
without suggesting what would be our |
Judgment as 10 the modihca alton of the rule,
or whether any, let it be suffieient to say thai |
dIcatiOn.
The motions are denied.
Judge Wyhe said that although generally |
agreeing with the opinion as read, he deemed |
II necessary to give his views on the motion,
and proceeded TO read his opinion. After re.
f~TrIng 10 the organization of this court IN
1853, and the adoption of the rule, which was |
not made obligatory by act OF Congress at the |
time on the court he said that a terrible civil |
war " as then in progress, and although they
were at the capital Of the nation. the armed \
forces OF therebellion were In sight. and, under |
the circumstances, the court felt that 1t was it's
dsty 10 adopt the rule. He discussed the quail
ihcanons Of attorneys required by the English |
courts, and read from statute providing that |
the Government, which was not In force here,
but acts of Maryland in I7l5 one comforting
on the courts full power to make their rules,
and another Of the same year, req uiring an
oath OF allegiance to Great Britain to be taken,
were in force in this District, except that the |
oaih OF allegiance TO this Government is sab
STUFFED fer the oath TO Great Britain. The Su-
preme Court IN the case of Secamb, reported /
IN lith Howard had decided that it was the |
province OF the courts TO make ITS rules, The
next decision OF the Supreme Court had, he |
thought, gone too far, and he held that il did |
not apply TO the present c aso. He referred TO |
the fact OF Mr.. Magruder having, a member |
OF the old Circuit Court, taken an oath to SUP.
port the Constitution OF the United States,
which he had violated by engaging in the re.
bellios. and said that even IL permitted TO take
the oath be might again in a like contingency |
pursue the same course, holding the opinions |
he bad annOun ced here.
The courtroom was crowded at the time |
oy members of the bar and spectators. who
listened attentively TO the reading OF the opin-
IONS.