confer on the courts of law, as well as on the departments of the government, power to appoint such inferior officers as may by Congress be authorized.

We maintain this bill by maintaining the doctrine that an attorney in a court is an officer of the government. We maintain the doctrine by the ancient theory and rule, as old as the British law, of the official character of a counsellor or attorney. From the very first he has been regarded as an officer of the court. The Supreme Court, in giving the decision which has been considered, admit that an attorney is an officer of the court, although they deny that he is an officer of the government. The admission, which can be easily comprehended by any man, overturns the singular theory of the court. The Supreme Court itself is a department of the government. Every court inferior to the Supreme Court is a branch or judicial agency of the government; and therefore when you have demonstrated or admitted, as the Supreme Court in this decision has admitted, that an attorney is an officer of the court, it follows as a necessary consequence, from which there can be no logical, legal, or constitutional escape, that the attorney is an officer of the government, because the court itself is either a department or a branch or agency of the government.

Under section thirty-five of the Judiciary Act of 1789, provision is made by law for the appointment of these officers by the court; and, as I said yesterday, the court derives its power to appoint attorneys from that act. But for that act they would be driven back upon the ancient common-law doctrine,

under which the party himself was required to appear in court and defend his cause. The thirtyfifth section is as follows: :

"And be it further enacted, That in all courts of the United States the parties may plead and manage their own causes personally, or by the assistance of such counsel or attorneys-at-law as by the rules of the said courts, respectively, shall be permitted to manage and conduct causes therein."

Therefore the authority of the court to appoint an attorney is derived from the Judiciary Act of 1789, framed by the fathers of the Constitution; - and, without the authority of that act, the court would not to-day possess constitutional or legal power to admit a single attorney to the performance of his ordinary functions in any court of the United States. They are entirely devoid of power to enact rules for their own government, except through the act of March 2, 1793, which provides,

"That it shall be lawful for the several courts of the United States from time to time, as occasion may require, to make rules and orders for their respective courts, directing the returning of writs and processes, the filing of declarations and other pleadings, the taking of rules, the entering and making up judgments by default, and other matters, in the vacation and otherwise, in a manner not repugnant to the laws of the United States, &c."

They have power by the authority of law to make their rules, and that is the only power they have on the subject. The law limits this power by declaring that they shall not make any rules except such as are in conformity to the laws of the United

States. The Supreme Court of the United States, many years ago, through the decision of Justice Story, recognized the authority of the Congress of the United States in this matter. He says:

"So far as the acts of Congress have adopted the forms of process and modes of proceeding and pleadings in the State courts, or have authorized the courts thereof to adopt them, and they have been actually adopted, they are obligatory, but no further. But no court of the United States is authorized to adopt by rule any provisions of State laws which are repugnant to or incompatible with the positive enactments of Congress upon the subject of the jurisdiction or practice or proceedings in such court." Reary et al. vs. The Farmers' and Merchants' Bank of Memphis, 16 Peters, p. 94.

It is from the Constitution and laws, and decisions of the courts, then, that we derive the authority to pass any rule which we think necessary and proper for the performance of the duties devolved upon the courts of the country. If we have authority to give the courts power to make their own rules, we have authority to prescribe exactly and definitely the rules by which the courts shall be governed; and, upon this statement of the matter, I submit the bill. to the House.

572

GOVERNMENT OF THE INSURRECTION

ARY

STATES.*

REMARKS UPON THE BILL TO PROVIDE FOR THE MORE EFFICIENT GOVERNMENT OF THE INSURRECTIONARY STATES, FEB. 9, 1867.

[Mr. Raymond, of New York, having the floor, suggested that the Bill should be recommitted to the Committee on Reconstruction.]

・ONLY

NLY a few days since, a bill of a different sort from that now pending was before this House; and a majority of the House-I believe the gentleman from New York [Mr. Raymond] was of that majority desired to refer the whole subject to the Committee on Reconstruction. The various propositions were so referred. They have been considered by that committee; and I believe I am guilty of no breach of confidence when I say that never has any report been made which was so unanimously supported by its different members as the one now under consideration; nor has any bill submitted by that committee ever been so carefully considered as this.

We have now spent two days and more in the discussion of the present measure. We have but eight or ten days in which, as a legislative body, we can act. I hold that it would be the greatest of public calamities, if this Congress should adjourn without an expression, both on the part of the * See Appendix II.

House and of the Senate, of the opinions entertained by the representatives of the country in reference to this measure. It is now to be seen plainly, that, if the bill be recommitted, there can be no proper reconsideration of the subject by a new committee, no conclusion reached, no report made, much less any action had, even by this branch of the government, within the period to which we are limited by the Constitution of the country for the consideration of this measure, and the passage of a law over the President's objections.

To-day there are eight million and more of people, occupying six hundred and thirty thousand square miles of the territory of this country, who are writhing under cruelties nameless in their character, injustice such as has not been permitted to exist in any other country in modern times; and all this because in this capitol there sits enthroned a man who, as far as the executive department is concerned, guides the destinies of the republic in the interest of rebels; and because, also, in those ten former States, rebellion itself, inspired by the executive department, wields all authority, and is the embodiment of law and power everywhere. Until in the South this obstacle to reconstruction is removed, there can be no effectual step taken toward the re-organization of the government; and, argue as gentlemen may, no way can be devised for the removal of this obstacle in the South, except to confide the work to Grant and Sherman and Sheridan,-the men who overthrew the rebellion when it was flagrant in the field, but not, as now, organized in the government. They will crush out