CHAPTER II.

OFFICERS OF COURTS.

ARTICLE I.

JUDGES.

Section 1. How judges acquire title to office. The judges of the English courts of record are appointed by commission of the crown; but in this State judges acquire title to office through the votes of the people. Article 6 of the State constitution (known as the amended judiciary article), and which took effect January 1, 1870, provides in section 2 that "there shall be a court of appeals composed of a chief judge and six associate judges, who shall be chosen by the electors of the State, and shall hold their office for the term of fourteen years.

It is further provided by section 13 of the same article, that justices of the supreme court shall be chosen by the electors of their respective judicial districts."

Similar provisions are made in the same article for the choosing of the judges of the county courts by the electors of the respective counties, and of the judges of the courts of cities by the electors of the respective cities. §§ 13, 15.

Section 2. How assigned to special districts. The State is now divided into four judicial departments, in each of which, general terms of the supreme court are held annually, at certain designated times and places.

The chief justice and his associates, who shall compose the general term in each department, are designated by the governor from the whole bench of justices composing the supreme court. The governor is, in like manner, empowered to fill vacancies in the general term as often as they shall occur for the unexpired terms. Laws of 1870, ch. 408, §§ 2, 3.

Section 3. How removed from office. Judges of the court of appeals and justices of the supreme court may be removed by concurrent resolution of both houses of the legislature, twothirds of all the members elected to each house concurring. Judges of other superior courts of record may be removed by

Origin of office of attorney - Attorneys of early English courts.

the senate, on the recommendation of the governor, two-thirds of all the members elected to the senate concurring therein. Const., art. 6, § 11.

ARTICLE II.

ATTORNEY.

Section 1. Origin of the office of attorney. An attorney at law is one who is put in the place, stead, or turn of another, to manage his matters of law" (3 Bl. Com. 25); or, according to a later definition, "he is an officer in a court of justice who is employed by a party in a cause to manage the same for him." Bouv. Dict.

The office of attorney is one of very early origin in the English law, though parties to a suit could not appear by attorney without the king's special warrant, by writ or letters patent till the statute of Westm. 11 (13 Edw. I), ch. 10, when this restriction was removed, and a general liberty given to parties, of appearing and prosecuting or defending their suits by attorney. 3 Bl. Com. 26. It was undoubtedly the practice, however, from the earliest period previous to the statute, to allow a party, after once appearing, to appoint an attorney to represent him during the subsequent progress of the cause. Steph. Pl. App., note 5.

Section 2. Attorneys of the early English courts. The first attorneys or advocates in the earlier English courts were the priests or monks, who alone in those rude times were competent to undertake a legal discussion. During the whole of the AngloSaxon, Danish, and Norman periods of the English history, literary and scientific acquirement was confined almost exclusively to the clergy, and the study of the law was by no means neglected by them. Some of the early bishops and other dignitaries of the church became eminent as jurists and courtiers, and the priests and monks were universally resorted to as the only persons capable of drawing up a legal instrument. After the Norman conquest, when causes were principally tried before judges appointed by the king, judicial offices were filled almost exclusively by ecclesiastics; and members of this body, till a much later period, following the example of their predecessors, sought and obtained considerable emoluments by embracing the

Attorneys of modern English courts.

profession of advocates before the legal tribunals. 1 Spence's Eq. Juris. 14.

Section 3. Attorneys of modern English courts. Upon the withdrawal of the clergy from the temporal courts (early in the reign of King William III), the study and practice of the law was, of course, devolved upon laymen; but little seems to have been accomplished in the way of progress till the court of common pleas was fixed in one certain place. This event had the effect of bringing together the professors of the municipal law, who before were dispersed throughout the kingdom, and the inns of court and of chancery were established by them near the city of Westminster, the place of holding the king's courts. Here exercises were performed, lectures read, and degrees were at length conferred in the common, as at other universities in the canon and civil law. 1 Bl. Com. 23. The degrees conferred were those of barristers and serjeants. In the old books barristers are styled apprenticii ad legem, or apprentices; having been regarded merely as learners, and not qualified to execute the full office of an advocate till they were of sixteen years' standing. They seem to have been first appointed by an ordinance of King Edward I, in parliament, in the 20th year of his reign. Spell. Gloss. 37; 1 Bl. Com. 23, note; 3 id.

27.

Barristers may be admitted serjeants-at-law after sixteen years' standing, and the degree of serjeant is the most honorable at common law. The judges of the courts of Westminster are always admitted into this venerable order before they are advanced to the bench; and none but serjeants were formerly permitted to practice in the courts of common pleas. This privilege, however, has since been extended to all barristers by statute 9 and 10 Vict., ch. 54; 3 Shars. Bl. Com. 27, note. The attorneys of the English courts are admitted to the execution of their office by the superior courts of law and equity, and are officers of the respective courts in which they are admitted to practice, and, as they have many privileges on account of their attendance there, so they are peculiarly subject to the censure and animadversion of the judges. 3 Broom & Had. 23.

In practice the term "attorney" is generally made use of in proceedings in common-law courts, and that of "solicitor" in the equity courts.

Section 4. The word "attorney" as used in this State. Previous to the constitution of 1846, the offices of attorney and counsel

The word "attorney" as used in this State Admission of attorneys. were separate in this State, and the duties attached to each were widely different. The peculiar duties of the latter as distinguished from that of the former, were to give counsel or legal advice in regard to the commencement, prosecution and defense of actions, superintend their progress, and conduct such of the proceedings as required a personal appearance and oral argument in open court. The former had no authority to act on such occasions. After three years' practice attorneys were entitled to be examined for the degree of counsel, and, if found qualified, were duly enrolled as such in accordance with the established rules of the supreme court. Under the Code both offices are blended together, and the same person may exercise the function of attorney and counsel under the same retainer. When separately employed, however, their functions and authority are still distinct. Easton v. Smith, 1 E. D. Smith, 318. Attorneys are considered, in all respects, as officers of the courts in which they severally practice; Denton v. Noyes, 6 Johns. 296, 316, and like counsel and other officers of the court, they are, by a legal fiction, always deemed to be, during term, present in court. The People v. Nevins, 1 Hill, 154.

Since the abolition of the court of chancery and the blending of the two systems of law and equity in this State, the term "solicitor," formerly applied to a practitioner in the court of chancery, has passed into disuse, and the term "attorney" is used in treating matters of equity as well as in law. Attorneys and counselors, when admitted, hold their offices for life, subject to removal or suspension for any deceit, malpractice or misdemeanor. 1 R. S. 109, §§ 23 to 25.

Section 5. Admission of attorneys. By the constitution of 1846 (art. 6, § 8), the profession was thrown open to any male citizen of good moral character, and who possesses the requisite qualifications of learning and ability - and the mode of admission is prescribed by the judiciary act of 1848, chapter 280, section 75. The mode of admission (which was to be made at general term), and the necessary examination, previous to admission, were further regulated by supreme court, rules 1 and 2. These rules, however, so far as they relate to the admission of attorneys, have been superseded or modified by the rules of the court of appeals, adopted under the authority of an act passed by the legislature April 13, 1871. Laws of 1871, ch. 486; Wait's Code, 818 to 821; post, 235 to 238.

Requisite qualifications under the rules.

In addition to the general statute provisions, and the rules of the courts made in pursuance of them, relating to the admission of attorneys, it is provided by a special act of the legislature that "any graduate of the law department of the university of Albany shall be admitted to practice as attorney and counselor at law in all the courts of the State. Laws of 1859, ch. 267, §2. A similar act entitles any graduate of the law school of Columbia college to like admission. Laws of 1860, ch. 202, § 1.

The constitutionality of the provisions of the latter act was questioned in Matter of the law graduates of the University of New York, 31 Barb. 353; S. C., 19 How. 97; 10 Abb. 348. These cases, however, were reversed in the court of appeals and the constitutionality of the statute established. Matter of application of Henry W. Cooper, 22 N. Y. (8 Smith) 67; S. C., 20 How. 1; 11 Abb. 301.

Section 6. Requisite qualifications under the rules. The necessity of prescribing rules, regulating the admission of attorneys to practice in our various courts, arises from the nature of the duties to be performed by them. These duties being of a very high character, and among the most responsible arising out of human affairs, require for their faithful performance the strictest integrity of character combined with ready skill as practitioners. In order to insure the requisite qualifications on the part of those intrusted with the performance of these duties, it has been provided that no person shall be admitted as an attorney of any court, unless he be approved by the court for his good character and learning. 2 R. S. 287, § 65; Laws of 1871, ch. 486, § 3. Pursuant to the provisions of the last-named act, the court of appeals have adopted the following rules:

1. No person shall be permitted to practice as an attorney, solicitor or counselor, in any court of record in this State, without a regular admission and license by the supreme court at a general term thereof. To obtain such admission and license, except in cases otherwise provided for by said act, the person applying must be examined under the direction of the court. The time for the examination of persons applying to be admitted shall be Thursday of the first week of each general term in the several departments. The examinations shall in all cases be public, and, unless conducted by the judges of the court, shall be by not less than three practicing lawyers of at least seven years' standing at the bar, to be appointed by the court.