Solicitor General of the United States

“ But I do not admit that the attorney-general has any corporate or juridical character, or that he can be introduced upon the record, in his official name, as an actor or respondent in a suit. His duties are strictly professional duties, and his powers those of an attorney at law. Whatever he may do for the United States, a special attorney might be retained to do; nor can the United States appear in his name, nor by his agency, in cases where they may not be a party. ”

“ Has Congress exhausted all its power with reference to such a body of men as attorneys and counsellors in the courts of the United States, so that it can do nothing further and lay down no further rule for admission or exclusion, for oath, for bond, for security? ”

“ The opinion quotes the clause of the constitution which declares that the judicial power shall extend to all cases to which the United States shall be a party, and says that this means, mainly, where it is a party plaintiff. It then refers to the statute of congress which expressly directs the United States district attorneys to bring suits in behalf of the government, and that the suits thus brought by them are to be under the immediate superintendence and control of the attorney general. ”

“ There is perceived very little reason why the Federal courts should now be opened to so wide a degree, inviting litigation, when rules presently in existence effectively permit suit and may, in the sound discretion of the United States Supreme Court, be broadened even further to permit suit regardless of State procedural laws and without the necessity of further legislation. ”

“ Congress is vested with ample authority to provide for the exercise by the Supreme Court of appellate jurisdiction from the decisions of all inferior tribunals, whether state or national, in cases within the purview of the judicial power of the United States; but no mode is provided, by which any superior tribunal can re-examine, what the Supreme Court has itself decided. Ours is emphatically a government of laws, and not of men ”

“ The right which it confers is something more than a mere license, revocable at the pleasure of the court. It is a right of which they can be deprived only by its judgment for moral or professional delinquency.
The oath which every attorney and counsellor is required to take on his admission briefly expresses his duties. It is substantially this: that he will support the Constitution of the United States, and "conduct himself as an attorney and counsellor of the court uprightly and according to law." ”

“ Whereas, the United States sets an example for private litigation by adhering to higher standards than those required by the rules of procedure in the conduct of Government litigation in Federal court, and can continue to do so without impairing the effectiveness of its litigation efforts ”

“ It is manifest, if any effect is to be given the act invoked by the solicitor as the basis of his authority, that he could not proceed at all without the approval of his superior. The legislation of Congress would be wholly ineffectual to prevent the evils which it was designed to remedy, if this approval should not be treated as a substantial requirement, a thing essential to give validity to the sale. The question is one of power, and the power is given to sell when the secretary thinks it advisable to do so. ”

“ That power extends, with such exceptions and under such regulations as Congress may provide, to judgments and decrees rendered by any Federal tribunal in suits which are brought therein, or which, pursuant to the legislation of Congress, are removed thereto, and may correct all errors in matter of law, and sometimes of fact. But the relations which the State courts sustain to this court are not those of an inferior court of the United States. Congress cannot impose duties upon them, nor invest them with judicial power. ”

“ The Federalist has remarked, that the reasonableness of the agency of the national courts in cases, in which the state tribunals cannot be supposed to be impartial, speaks for itself. No man ought certainly to be a judge in his own cause, or in any cause, in respect to which he has the least interest or bias. This principle has no inconsiderable weight in designating the federal courts, as the proper tribunals for the determination of controversies between different states and their citizens. ”

“ Congress evidently knew how to require service when it deemed compulsory service appropriate. Its decision to allow federal courts to request attorneys to represent impoverished litigants, rather than command, as in the case of court officers, that lawyers shall or must take on cases assigned to them, bespeaks an intent not to authorize mandatory appointments of counsel. ”

“ Since the Act of June 22, 1870 (16 Stat. 164, c. 150, carried into R. S. § 189 [Comp. St. § 271] ) , no head of any department of the government has been permitted to employ legal counsel at the expense of the United States; but, whenever such counsel is desired, a call must be made upon the Department of Justice, by which it is furnished. ”

“ I can but think it a great opportunity for Congress to intrust to the highest tribunal in this country, evidently imbued with a strong spirit in favor of a reform of procedure, the power to frame a model code of procedure, which, while preserving all that is valuable and necessary of the rights and remedies at common law and in equity, shall lessen the burden of the poor litigant to a minimum in the expedition and cheapness with which his cause can be fought or defended through Federal courts to final judgment. ”

“ The act may be asserted, without fear of contradiction, to have been against the opinion of a great majority of all the ablest lawyers at the time; and probably now, when the passions of the day have subsided, few lawyers will be found to maintain the constitutionality of the act. No one can doubt the perfect authority of congress to remodel their courts, or to confer, or withdraw their jurisdiction at their pleasure. ”

“ And there is nothing in the Constitution to justify considering the right to counsel as a secondclass, subsidiary right which attaches only when the Court deems other specific rights in jeopardy. The real basis for the Court's holding that the stage of obtaining hadwriting exemplars is not 'critical,' is its statement that 'there is minimal risk that the absence of counsel might derogate from his right to a fair trial.' The Court considers the 'right to a fair trial' to be the overriding 'aim of the right to counsel,' United States v. ”

“ Trial by jury has not been considered essential to due process, and since the Fourteenth Amendment guarantees no particular form or method of procedure, States have been free to retain or abolish juries. [800] Conformably to the Constitution, States, in devising their own procedures, eliminated juries in proceedings to enforce liens, [801] inquiries for contempt, [802] mandamus [803] and quo warranto actions, [804] and in eminent domain [805] and equity proceedings. [806] States are equally free to adopt innovations respecting the selection and number of jurors. ”

“ In short, subject to only one limitation, each State of the Union may establish its own judicature, distribute judicial power among the courts of its choice, define the conditions for the exercise of their jurisdiction and the modes of their proceeding, to the same extent as Congress is empowered to establish a system of inferior federal courts within the limits of federal judicial power, and the States are as free from control by Congress in establishing state systems for litigation as is Congress free from state control in establishing a federal system for litigation. ”

“ Some few generals, and even one colonel, have been elected to the Presidency of the United States; and occasionally business men of one kind or another have prevailed in local politics; but really important political action in our country has almost always been taken under the influence of lawyers. On the whole, American laws have been made by lawyers; they have been executed by lawyers ”