that the power over one's subsistence, is a power over his will; and that the power to diminish it, is much more efficient to subdue his will, than the power to increase it. Accordingly, the judicial salaries are so regulated, that while they may be prospectively altered from time to time, as circumstances may require, yet no judge can be required to receive a less salary than that with which he went into office. And by our State constitution the salary can neither be increased nor diminished during the term of service.

§ 48. Subordinate Officers of Courts. (a) To complete our view of the organization of courts, it remains that I speak briefly of the subordinate officers. These are, the recording officer, the executive officer, and the managers of causes. Of these, in their

order.

Recording Officer. This officer is usually styled clerk, but sometimes prothonotary. His regular duties are, to keep a record of all judicial proceedings; to keep the seal of the court, and affix it to all papers requiring it; and to issue all writs proceeding from the court. The supreme federal court and the district court have the appointment of their respective clerks; and the clerk of the district court is also clerk of the circuit court for that district. These clerks are appointed for no definite period, and are, of course, removable at pleasure. Our State courts, likewise, formerly appointed their respective clerks for each county, who held their offices for seven years, unless removed for misbehavior. But now there is a clerk elected for three years in each county, who is clerk of all the courts held in the county, except the probate court and courts of justices of the peace. His compensation is derived from fees.

Executive Officer. (b) The executive officer is variously styled marshal, sheriff, or constable, according to the court in which he officiates. The executive officer of the federal courts is a marshal, who is appointed for each district, by the president and senate, for the term of four years, but removable at pleasure by the president. The executive officer of the State courts is the sheriff, who is elected biennially by the people of cach county, as before described. The executive officer of the courts of justices of the peace is the constable, who is elected annually by the people of each township, as before described. The various duties of these officers are minutely defined by law, and will be often referred to hereafter. It is sufficient here to say, that all writs, orders, judgments, and decrees of their respective courts, are by them carried into execution. Their compensation is derived from fees, and they are under bonds. for fidelity.

(a) 1 Kent, Com. 306-9.

(b) 1 Black. Com. 339; 1 Kent, Com. 309; Watson's Sheriff; Dalton's Sheriff; Sheppard's Constable; Swan's Justice and Constable; Gwynne's Sheriff; Webb v. Anspach, 3 Ohio State, 522; Faris v. The State, 3 id. 159; Champaign Co. Bank v. Smith, 7 id. 50.

1

Attorneys. (a) Although parties are permitted to manage their own causes, if they so wish, yet the successful conducting of litigation involves so much formality and technicality, as generally to require a set of men educated for that express purpose. In England, these men are variously styled attorneys, solicitors, advocates, counsellors, barristers, and sergeants, according to their rank and duties. But in this country, we have but the two classes, attorneys and counsellors. In the admiralty courts they are styled proctors and advocates. These classes are recognized in the supreme federal court, and in some of the State courts; but not in the inferior federal courts, nor in the courts of this State. Where the distinction between attorneys and counsellors prevails, it consists principally in this that attorneys do all things necessary to prepare causes for hearing, and counsellors conduct them at the hearing. The requisites for admission at the bar are prescribed by law. In order to practise in the supreme federal court, as attorney or counsellor, one must have practised three years in the highest court of the State to which he belongs. The inferior federal courts merely

(a) See 3 Black. Com. 25; 1 Kent, Com. 306. If an attorney has applied to his own use money collected for his client, it is good cause to suspend him from practice. State v. Hand, 9 Ohio, 42. The court will not act upon charges made against an attorney, unless they be under oath. Ex parte Burr, 9 Wheat. 529. That an attorney has been stricken from the rolls of one court for a contempt, is not a sufficient reason for excluding him from another court. Ex parte Tillinghast, 4 Peters, 108. Courts determine the qualifications of attorneys and the causes for their removal, except as limited by statute. Ex parte Secombe, 19 How. 9. An attorney does not require a written appointment from his client as authority to appear for him. Osborn v. Bank U. S., 9 Wheat. 738; Pillsbury v. Dugan, 9 Ohio, 117; Hirshfield v. Landman, 3 E. D. Smith, 208. But see King of Spain v. Oliver, 2 Wash. C. C. R. 429. An attorney may contract to receive part of the property recovered as a contingent compensation; but a stipulation that no compromise shall be made without his consent, is illegal and void. Key v. Vattier, 1 Ohio, 132. In general, the act of an attorney in court binds his client. Treasurer of Champaign v. Norton, 1 Ohio, 270. Otherwise, if he appeared without authority. Critchfield v. Porter, 3 Ohio, 518. If an attorney improperly sue out process, he may be ordered to pay costs. Kerr v. Bank of Chillicothe, Wright, 737. If there be no special agreement for a fee, the attorney may recover the usual compensation. Christy v. Douglass, Wright, 485. An attorney's fees are not included in the term costs. McDonald v. Page, Wright, 121. The retainer of an attorney does not imply an undertaking to recover a judgment, but only to use the diligence in the ordinary course. Gallaher v. Thompson, Wright, 466. He is liable for negligence and want of reasonable skill. Goodman v. Walker, 30 Ala. 482; Wilson v. Coffin, 2 Cush. 316; Parker v. Rolls, 28 Eng. L. & Eq. 424. An attorney, as such, has no authority to make a compromise for his client. Holker v. Parker, 7 Cranch, 436; Mayor v. Foulkrod, 4 Wash. C. C. R. 511. His authority does not cease with recovering judgment. Langdon v. Castleton, 30 Vt. 285; McDonald v. Todd, 1 Grant (Penn.), 17. He may issue execution, though he cannot discharge it without satisfaction. Union Bank v. Geary, 5 Peters, 99; Erwin v. Blake, 8 Peters, 18. Nor can he receive the notes of third persons in discharge of it, or in payment of a debt, without special authority. Jones v. Ranson, 3 Ind. 327; Jeter v. Haviland, 27 Mo. 252. Or sell the judgment. Campbell's Appeal, 29 Penn. State, 401. Or release or postpone the lien on lands acquired by it. Wilson v. Jennings, 3 Ohio State, 528. Appearance by attorney supersedes the necessity of process; but if an attorney appear without authority, he is answerable in damages. Field v. Gibbs, 1 Peters, C. C. R. 155, 455. An attorney is bound to disclose to his client if he have any adverse interest. Williams v. Reed, 3 Mason, 405. An attorney has a lien on the judgment for his costs. Mooney v. Lloyd, 5 Serg. & R. 412; Woods v. Verry, 4 Gray, 357; Currier v. B. & M. R. R. Co., 37 N. H. 223; Ward v. Wordsworth, 1 E. D. Smith, 598; Rooney v. Second Avenue R. R. Co., 18 N. Y. 368. Contra, in Indiana, Hill v. Brinkley, 10 Ind. 102. After he has voluntarily withdrawn from a case, he cannot withhold a paper and prevent it from being used as evidence. White v. Harlow, 5 Gray, 463.

require a previous admission to the State courts. The requisites for admission to the State courts vary materially in the different States. In Ohio they are as follows: The applicant must be of age, a citizen of the United States, and of good moral character; he must regularly have studied law somewhere for two years; and must have resided one year within the State. There is an exception, however, to this last requisition, when the applicant has been in practice two years in another State. These requisites may be evinced by the certificate of some attorney in the State; and they entitle the applicant to an examination. This is conducted either by two judges of the supreme court, or by a committee of the bar appointed by them. If the applicant be found qualified, the oath of office is administered, and his admission recorded. He is thereby authorized to act both as attorney and counsellor at law, and solicitor in chancery, in all the State courts. (a) The only exception to the necessity of being thus admitted, is that of attorneys resident in other States, which permit our attorneys to practise in their courts. Attorneys are regarded as officers of court, acting under the supervision of the judges, who have authority, upon good cause, to suspend them from practice. They are not required to produce a special authority from their clients, it being always presumed until the contrary appears. They are responsible for reasonable diligence and skill, and are generally, though not always, permitted to regulate their own charges. To insure the utmost confidence and unreserve on the part of their clients, in giving them the necessary information, attorneys are excused from testifying in court, as to any thing professionally confided to them. (b)

Government Attorneys. In all criminal proceedings, government is a party to the prosecution; and not unfrequently in civil proceedings. Hence the necessity of a special law officer to attend to its interests. The attorney-general of the United States is the regular law adviser of the president and heads of departments, and has the management of all causes in the supreme court, in which the federal government is concerned. There is, likewise, a districtattorney for each district, to attend to causes in the circuit and district courts. These officers are appointed by the president and senate. A similar arrangement exists in most of the States. In Ohio, there is an attorney-general for the State, and prosecuting attorneys for each county, whose duty it is to conduct all criminal proceedings, and all civil suits, in which the State is interested. These officers are elected by the people. (c)

(a) By the act of April 7, 1856, students of incorporated law colleges of Ohio, whose qualifications have been certified to by a committee of attorneys appointed by the district court, and examining such students at the commencement exercises of such college, may be admitted without further examination.

(b) Andrews v. Solomon, 1 Peters, C. C. 356; Chirac v. Reinicker, 11 Wheat. 280; Hemenway v. Smith, 28 Vt. 701; Thompson v. Kilbourne, 28 id. 750; Coon v. Swan, 30 id. 6; Allen v. Harrison, 30 id. 219; Alderman v. The People, 4 Mich. 414; Martin v. Anderson, 21 Geo. 301; Parish v. Gates, 29 Ala. 254. The same rule extends to the clerk of an attorney. Foster v. Hall, 12 Pick. 93; Landsberger v. Gorham, 5 Cal. 450; Sibley v. Waffle, 16 N. Y. 183.

(c) In England there is no public officer answering to our prosecuting attorneys,

§ 49. Jurisdiction of the Federal Courts. (a) From the organization of the federal and State courts, we pass next to their jurisdiction. When a case is within the power of a given court, the court is said to have jurisdiction of it. This jurisdiction may either be exclusive or concurrent. A court is said to have exclusive jurisdiction of a case, when it cannot be brought before any other court; and to have concurrent jurisdiction, when the case may be brought before some other court. Again, jurisdiction may be either original or appellate. The jurisdiction is original in a given court, when the first proceedings may be commenced in that court; and it is appellate, when the proceedings must be commenced originally in some other court, and are thence transferred, for revision or correction, to the court in question. The regular method of transferring a cause to a court of appellate jurisdiction, are by appeal or by writ of error, which will be described hereafter. It is sufficient here to say, that an appeal removes the cause entirely and in all respects, subjecting the facts, as well as the law, to a re-hearing in the court above. Whereas, a writ of error leaves the facts as determined in the court below, and only carries up questions of law for re-examination. Such being the nature of jurisdiction in general, I shall examine the jurisdiction of the federal and State courts, in each of these points of view.

In considering the jurisdiction of the federal courts, two questions arise. First, how much jurisdiction is conferred upon them. altogether? Secondly, how is this jurisdiction apportioned among them? And first, as to the whole amount of federal jurisdiction. If the United States had been organized into one consolidated nation, there would have been no difficulty in determining how far the judicial power should extend. It would manifestly have embraced all subjects of judicial cognizance without exception; and of course there would have been no necessity for a specification. But the federal government being limited, as before shown, to certain specific national objects, this limitation applies as much to the judicial as to the other departments; it being an obvious maxim that the three departments should be co-extensive in their powers. The federal constitution does not, however, merely assert this general proposition and there stop; but, in conformity with its general plan, it proceeds to enumerate specifically all the objects to which the judicial powers shall extend. These are included under the nine following heads :

whose duty it is to attend to general criminal prosecutions. They are conducted by counsel retained by the prosecuting witness. Bills to provide such officers have been several times introduced in parliament, and the subject largely discussed, but all have yet failed to pass. Several interesting articles on the subject may be found in 2 & 3 Jurist (N. s.).

(a) The convention at first resolved, that the jurisdiction should extend to the collection of revenue, impeachments, and questions involving the national peace and harmony. - Mad. Pap. 860. The matter of impeachments was afterwards stricken out, and cases arising under national laws added - id. 1137-8. But in the first draft of the constitution, a specific enumeration of the cases of jurisdiction was contained -id. 1238, 1438-40. See Conkling on the Jurisdiction and Practice of the U. S. Courts; Duponceau on Federal Jurisdiction; 1 Kent, Com. lec. 15–17.

1. "To all cases in law and equity, arising under this constitution, the laws of the United States, and treaties made or to be made under their authority." (a) We have already seen that the federal constitution, laws, and treaties constitute the supreme law of the whole Union. And hence the clear propriety of making them cognizable by that judiciary, which alone represents the whole Union. The language, however, requires a case to be made; that is, a suit must be instituted, according to the regular course of judicial proceedings, to be described hereafter. The federal judges cannot be consulted upon mere abstract questions. The case may be either in law or equity, and of a civil or criminal nature. When such a

(a) See Osborn v. Bank of U. S., 9 Wheat. 738. And in the case of the Belfast, 7 Wall. 624, it was held by the supreme court that a proceeding in rem against a vessel for goods lost in transit on navigable waters, though the contract was between citizens of the same State, and for a voyage wholly within the limits of a single State, is an admiralty proceeding, and the United States courts have exclusive jurisdiction thereof, and a State statute authorizing similar proceedings in a State court is unconstitutional. This case intimates a distinction between the jurisdiction on the lakes and waters flowing into them under the act of 1845, and tide-water and the streams flowing into it under the old judiciary act. But the question coming directly before the court in the case of The Eagle, 8 Wall. 15, it was declared that the act of 1815 does not limit the jurisdiction of the United States courts on the lakes and the navigable waters connected therewith, but has simply become entirely inoperative by virtue of subsequent decisions, and the courts possess, under the judiciary act of 1789, the same forms as to admiralty proceedings on such waters as they have on tidewater, and navigable waters connected therewith. These two cases seem finally to settle the doctrine.

But the expressions in these opinions relate solely to suits in rem, and must be so limited, as is shown by the case of Leon r. Galceran, 11 Wall. 185, 192, where the court held a suit in personam for mariners' wages maintainable at common law in a State court, and that the vessel might be seized or attached in such suit, when the State law gives a lien similar to the maritime lien, for the purpose of subjecting it to the judgment. The question as to what is a navigable river has been largely discussed in the recent cases, under the registry laws which require all boats on the navigable waters of the United States to take out a license. In The Daniel Ball, 10 Wall. 557, it was held that a steamer transporting goods on Grand River, Michigan, between ten towns in that State, some of which goods were marked for other States, and some came from other States, and were marked for places in Michigan, must take out a license. The court say, "The doctrine of the common law as to the navigability of rivers has no application in this country. Here the ebb and flow of the tide do not constitute the usual test, as in England, or any test at all. . . . A different test must, therefore, be applied to determine the navigability of our rivers, and that is found in their navigable capacity. Those rivers must be regarded as navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used in their ordinary condition as highways for commerce, over which trade and travel are, or may be, conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of the act of Congress, in contradistinction from the navigable waters of the States, where they form, in their ordinary condition, by themselves or by uniting with other waters, a continued highway, over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water." In the case of The Montello, 11 Wall. 411, the question is further discussed with reference to Fox River, in Wisconsin, which the court, though taking judicial cognizance of the principal geographical features of the country, and among them of its navigable waters, could not settle the navigability or unnavigability of. The court say, however, that the fact that he carries the products of Wisconsin, destined for other States, which seemed to be relied on in The Daniel Ball supra, does not affect the case, as it has nothing to do with the regulation of commerce; but that it depends entirely upon whether the river, by itself or in connection with others, forms, or does not form, a highway for commerce with other States or foreign nations.