
    GENERAL COURT,
    MAY TERM, 1786.
    State of Maryland against Samuel Johnston, Esq,
    THIS was a certiorari to the County Court of Baltimore, to remove the proceedings on a motion, that Samuel Johnston, Esquire, be admitted an attorney of the said Court.
    It appears on the record, “ that Mr. Johnston having applied to the Court of Baltimore county, in August, 1784, to be admitted as an attorney of that Court, Luther Martin, Esq. the Attorney-General, objected to his admission, and stated to the Court, that the said Johnston, being an inhabitant of the province of Pennsylvania, and residing therein, when the revolution began, and until some time in the year 1778, holding the office of prothonotary, and clerk of the peace in Tork county, in that province, and practising the law in that province* did not take the oaths of allegiance to the state of Pennsylvania, in consequence whereof, the said offices were disposed of to another, and he gave up his practice as a lawyer, and retired, in the said year, being then upwards of fifty-two years of age, to this state, where he remained peaceable and inactive, without taking the oaths to this state, with his relations, until peace was established, which the said Johnston acknowledged tobe true; and alleged, that during the dispute his conscience would not permit him to take the oaths of allegiance to the new government, not thinking himself absolved from his oath of allegiance to the king of Great Britain, until independence was acknowledged, although he, at the same time, alleged, that he sincerely wished well to the liberties of America, and that two of his sons-in-law were colonels of militia, in the American service, one of them in the flying camp, and two of his sons were privates, one in the militia and the other in the regular service, one of whom was taken prisoner at Fort Washington ; and that, now the independence of America was established, and the matter entirely over, he was at this time perfectly attached to the present government of Afaryland, as now established. And Mr. James Calhoun, being examined by the Court, said he had often been in company with Mr. Johnston, and was well acquainted with him, and that he did not think Mr. Johnston 'an enemy to the liberties of America, but understood that he had conscientious scruples against taking the oaths to the new government.
    “ The Attorney-General made no objection for want of integrity or abilities in the said Johnston, but admitted him to be,unexceptionable in those points, and that his political character and conduct only, was impeachable.
    “ And the Court clearly seeing and understanding the motion of the said Samuel Johnston, and the objection so as aforesaid stated against him, do admit the said Samuel Johnston as an attorney of Baltimore County-Court, upon his taking the oaths by the law prescribed; and thereupon the said Samuel Johnston took and sub-' scribed the several oaths by law directed. From which opinion and admission of the Court, the, Attorney-General prayed an appeal to the General Court for tb e Western Shore, which appeal was granted and the proceedings ordered to be transmitted accordingly.”
    The appeal was transmitted to the General Court, where the following observations against the appeal, were, made on the part of Mr. Johnston,
    
    The first point to be determined by the Court, is, whether an appeal lies, where the Court admits an attorney and he is accordingly sworn.
    Attorneys are very ancient ministerial officers of the Courts of common law, to undertake the charge of other men’s business in their absence, and were either admitted, by the Courts, on application of the party* or the Courts could be compelled thereto by writ or letters patent from the king. And there is a great diversity of writs in the table of the register, by which the king 'commands the Judges to admit attorneys. But by the statute of Merton, c. 20, the 20th of Hen. III. Westm. 2. c. 10. the 13th of Edzy. I. and the 7th of Rich. II. c. 14. all persons were enabled to appoint attorneys to answer for them,
    4 Hen. IV. c. 18. The justices were required to examine the attorneys, and by their direction admit such as they approve, and reject the insufficient; and on the death of any that are admitted, to appoint others that are virtuous and learned, as well as to strike out of the roll such as were notoriously faulty.
    3 James I. c. 7. None shall be admitted attorneys, but such as are well practised in soliciting of causes, and skilful, and of honest disposition. So that knowledge and probity were then the necessary qualifications.
    In 1715, by act of assembly, c. 48. s. 12. the justices of each Court have a power to admit attorneys to practise in the same, and also suspend them in case of misbehaviour.
    Thus has every Court been empowered to judge of the knowledge and probity of the attorneys to be admitted, as it is fit they should, of the admission of their own officers ; and where an admission has once been obtained, no Superior Court has ever, exercised the power of suspending. No law has given it; no Courts have exercised it.
    The Court of King’s Bench in England, and the General Court here, have a superintending power in criminal matters generally, but in some special cases over the inferior jurisdictions for particular purposes ; that is, to see that they do not exceed their jurisdictions, agreeably to the laws of the land, to rectify errors in the proceedtngs, to punish such as act corruptly, unjustly and oppressively, and to grant mandamus where persons have been illegally put or kept out of office, as well as to prohibit the farther proceedings of such as have no jurisdiction. And where appeals are given by particular laws, and for particular purposes, the superior Court, to whom the appeal is made, hath always confined itself within the powers given by those laws to redress the party aggrieved.
    In 1783, April sessions, an act of assembly was made, (chap. 17.) concerning the admission and qualification of solicitors and attorneys, which vested a discretionary power in the justices of the respective Courts, after examination by such ways and means, “ as to them respectively shall seem proper, whether such person is suitable and fit, with respect to his knowledge, abilities and integrity, and whether, on consideration of all circumstances, and the whole conduct and behaviour of such a person, he is well affected to the present government of ühis state, and the principles of liberty and independence, as established by the late revolution; and if satisfied that such person is duly qualified.j to administer the oaths directed by lazv, and cause him to be admitted.”
    Thus is a power vested in the respective Courts, on in quiry and consideration of all circumstances, and the whole conduct of the person, to admit or refuse admission, as attorneys of the said Cburts, and had the law gone no further, the determination of the Courts must, it seems, have been final. But the laws are ever tender of the rights of individuals, and no persons should be excluded from admission, or suspended from practice, who were legally entitled to practise. For such persons who apprehend themselves aggrieved by the j udgment of the Court, (far no other persons can apprehend themselves aggrieved, but such as are excluded or suspended,) a clause is inserted in the said act, that such shall have a right to appeal to the superior Courts, according to their respective jurisdictions, as settled by law in other cases j whose only power is, if they are of opinion that such person has been illegally denied admission, in the one case / or suspended or struck out against law in the others, by mandamus, to order such attorney or solicitor to be admitted or reinstated, as the case may be.
    
    Here it is remarkable that the Courts above are only enabled to give a remedy, which applies to a person denied admission, and not to the party opposing it. No power is any where vested, nor have any superior Courts ever attempted to direct the inferior Courts to strike off, or even suspend, any of their attorneys, once admitted, from practice ; though they have issued mandamus to restore such as were suspended. This was a power first exercised by the crown of England., in very ancient times, as appears by the register, and afterwards by the King’s Bench, where attorneys were illegally refused admission or suspended in inferior Courts.
    This appeal lies only for the party grieved. I suppose the Attorney-General will not allow himself to, be the-party grieved, and surely the State cannot come within that idea. There is a uniform distinction kept up, in the law books, between the king and the party, the crown and the party; with the same reason should the distinction take place between the government and the party. In no instance have statutes, acts of assemWy, or Courts of Law, ever mentioned the crown or the government by the name of the party, nor have they been ever- understood by that expression, and should Mr. Attorney contend, that he, as a private person, thought himself affected in point of interest, by Mr. fohnson’s admission, yet the act of assembly would not warrant his appeal; because there is no power given for any remedy in such case.
    
    Upon the whole, the several Courts have, from great antiquity, exercised the power of determining who were or -were not qualified to be attorneys of their respective Courts, and admit or reject them accordingly. The several statutes and acts of assembly confirm this power, and the act of 1783 gives them a discretionary power, to determine the knowledge, abilities and integrity, as well as the political principles of the person to be admitted, and to admit accordingly, such as they think qualified. No power appears vested in the superior Court, to countervail such admission; because the remedy on the appeal is given to the other side of the question.
    And as to the general superintending power of the superior Court, it is only such as is, or can be, exercised in the instances above mentioned, or similar to them, but never in this case ; evas it otherwise, the giving an ap,peal by this last law was needless and nugatory, for certainly, then it would have extended to both sides of the question, which under the act it does not. The justices of Baltimore County Court have, by their admission of Mr. Johnston, given their determination on the whole circumstances, and after a full hearing, that he is a person qualified to be admitted, agreeable to the act of assembly. Mr. Attorney has thought proper to enter an appeal in this case, not warranted by law. By the same practice the determinations of the General Court,- in the admission of attorneys, may be appealed from, and every Court be deprived of the power so clearly vested in them by law. Wherefore, on the part of Mr. Johnston, it is prayed, that the appeal be dismissed, as not lying on the rart of the appellant.
    At October term, 1784,-.the appeal was dismissed ; it being determined n.ot to be a case in which an appeal would lie.
    Afterwards, at November term, 1784, the Attorney-General having obtained a writ of certiorari for the, ie<moval of the proceeding!-, to the General Court, produced the said writ to the County Court, and which was allowed, and the proceedings ordered to be transmitted. The record of proceedings was accordingly transmitted to the General Court, on the 9th of May, 1785, and was continued till May term, 1786.
    Observations on the certiorari .on the part of Mr. Johnston.
    
    Two questions arise on the present occasion. 1st.-; Whether a certiorari lies in this case ? 2d. If it does,, whether the justices have acted illegally in the admission of Mr. Johnston to practise as an attorney in the County Court. The determination of either of these points in favour of Mr. J. must make an end of this affair.
    1. It must be acknowledged that this is the first cer* tiorari ever known to be brought to control the Justices of inferior Courts in the admission of their own officers, and therefore ought not to be received on the present occasion. It is a question in which every County Court of this state and every inferior jurisdiction is deeply concerned. The discretionary powers with which they have been entrusted, will be subject upon every occasion to be obstructed by this new mode of proceeding. I hope it will, upon this occasion, meet with that’ discouragement which it deserves.
   Superior Courts have at all times been very cautious of extending their jurisdiction or exercising powers never before practised even in cases where the right seems to be acknowledged. Littleton, in his chapter on knight service, says, no action can be brought on the. statute of Merton for disparaging an heir, because none ever had been brought. Brooke says, that a writ of error will run to the five ports; but in Dyer, 376. because none ever had gone, it was determined that none ever should go. In Year Book, 39 Hen. VI. a royal protection to the king’s proctor at Rome was disallowed, because none roas ever granted before. See 1 Bl. Rep. in the case of Tonson & Collins, 309. 2 Stra. 881. the Court refused a mandamus to the Justices to grant a license, because no such had ever issued in süch case.

At common law, by the statute of 4 Hen. I. c. 18. Stat 3 James I. c. 7. and by an act of assembly of the year 1715, c. 48. s. 12. powers are given to the Justices to admit such as they in their discretion shall think of sufficient .knowledge and probity ; and that none else should he admitted by the above statute of James.

Thus have the several Courts of Law been empowered to judge of the knowledge and probity of the persons applying for admission in their Courts, as it is fit they should, of their own officers ; and where an admission has once been obtained, no superior Court has ever exercised the power, by certiorari or otherwise, of inquiring into the propriety of the admission. Was not the want of knowledge and probity sufficient to exclude from admission by the statute? Yet as the Justices were vested with the power of determining who were properly qualified, no other power has ever interfered.

This Court has a superintending power over criminal matters generally, and in some special cases, over im ferior jurisdictions for particular purposes ; that is, to see that they do not exceed their jurisdiction; to rectify errors in the proceedings; to punish such as act corruptly, unjustly and oppressively; to grant mandamus where persons have been illegally put, or kept out of office ; as well as to prohibit the further proceedings of such as have no jurisdiction. Should the County Courts exceed their hounds, a certiorari may be brought, not to try the merits of the question, hut to see if they have exceeded their jurisdiction. See 2 Burr. 1042. Rex v. Morley, on a conviction under the conventicle act, 22 Car. II. s. 1.

In April sessions, 1783, c. 17. an act was made concerning the qualification and admission of solicitors and attorneys, which vested a discretionary power in the Justices of the respective Courts after examination, by such ways and means as to them respectively shall seem proper, whether such person is suitable and fit with respect to his knowledge, abilities and integrity, and whether, on consideration of all circumstances, and the whole conduct and behaviour of such a person, he is well affected to the present government of this state, and the principles of liberty and independence as established by the revolution : and if satisfied that such person is duly qualified, to- administer the oaths directed by law, and cause him to be admitted.”

Thus is a power vested in the respective Courts, on inquiry and consideration of all circumstances, and the whole, conduct of the person, to admit him to practise as an attorney; which law, by going n« further in case of an admission, seems to be final, (the appeal being only-given in case of a refusal.) Had the legislature intended to have had a further inquiry after admission, the law would have given the same. No such power is any where - given, none such have ever been exercised by any superior Court whatever.

The power given by the law is discretionary ; which¿ according to Lord Mansfield, can mean nothing else but .the exercising their judgments upon the occasion that calls for it. Nor are they obliged to give any reasons for their determination. They have a right to judge for themselves, nor can this Court exercise any power or claim to review the reasons upon which the Court below forms its judgment in such cases, or overrule the discretion entrusted to them. If they act corruptly, partially or maliciously, they may he indicted. 1 Burr. 556. 1 Salk. 45. 2 Stra. 881. 1 Burr. 570. 246.

Second point. Should the Court, notwithstanding, be of opinion, that a certiorari will lie in the present case, • the next inquiry is, have the justices exceeded their jurisdiction, or acted illegally ? The first will hardly be disputed, and therefore the latter comes into consideration. The knowledge and integrity of Mr. Johnston are acknowledged on the face of the record; these, as well as his political principles, the Court have determined ; so that, unless he is absolutely excluded by some law existing at the time, the justices have done no more than a just regard to the rights of mankind required.

It is a rule in law, that penal statutes should he construed strictly, and surely such as deprive any person of the means of getting a livelihood for themselves and family by their honest industry, in the only way they know, must be penal indeed.

The act for the better security of government, October sessions, 1777, c. 20. required all free male persons within this state above eighteen years of age, to take the oath of fidelity and support to the state, by the first of March following, or be disabled to practise the law, &c. Mr. Johnston not then being an inhabitant, neither falls within the letter or meaning of this law.

In May sessions, 1781, an act of assembly was made, c. 20. to prevent disaffected emigrants from settling in this state, &e. whereby it was enacted, that no citizen or inhabitant of any of the United States, who had not taken the oath of allegiance to the state in which he resided, should ever hereafter come to this state ; and in case that he should, he may be apprehended by warrant from any justice of the peace, lieutenant, or militia field officer of any county, and carried before the governor and council, who may order such person to depart within a limited time, &c. or commit him to gaol, &c.

And that every person above eighteen years of age, who hath already come into, and remains in this state, from any of the United Slates, shall, on or before the first day oí September next, appear be fore some justice of the peace for the county in which he may reside, and take and subscribe the oath or affirmation of fidelity and support to this state, as prescribed by the act to punish certain crimes and misdemeanors, and to prevent the growth of toryism, and if any person shall neglect so to do, or shall, on the said oath or affirmation being tendered to him by any justice of the peace for such county, (which oath or affirmation any justice of the peace may at any time tender,) refuse to take and subscribe the said oath or affirmation, such person so neglecting or refusing shall be considered as a subject of the state from which he came, and may be dealt with as if he had come into this state after the passing of this act.

It is remarkable, that this law, when in force, left it discretionary in the justice, county lieutenant or field officer, to have the person apprehended or not; and also for the governor and council to order the person out of the state or not, according as the person appeared to be inoffensive or otherwise. But this law also having .expired with the war, was not in force when Mr. Johnston was admitted; but is at the same time the strongest proof of Mr. Johnstorts unblemished conduct when he was so well known to the persons who were empowered to execute the same. He remained an inhabitant of this state unmolested. He owed it a local allegiance, which he strictly observed, and since the expiration of that law is become a subject of it, as he was near three years before the same was enacted.

After peace was concluded, the law now in force was made, whereby all former disqualifications seem impliedly to be removed, but such as are contained in this law. The justices are vested with a power to determine, on inquiry and consideration of all circumstances, and the whole conduct of the person, to admit. Their power is discretionary so far, and no appeal from their determination but in case of refusal, &c. because there is •■39 power given by the lazv to examine the merits or qualifications of the person elsewhere, nor to inquire into the reasons of the admission. The justices, on the return of the certiorari, have not assigned any reasons, nor are they obliged by law to do so.

Upon the whole, the several Courts have, time out of mind, exercised the power of determining who were qualified to be attorneys of their respective Courts. The several statutes and acts of assembly confirm the «ame. The act of 1783, particularly, gives them a discretionary power to determine of the knowledge, abilities and integrity, as well as the political principles of the person to be admitted, and that not on one or two facts, but on the consideration of all circumstances, and the •whole conduct and behaviour of the person. And as no power appears by the law to he vested in this Court to countervail such admission, as no power has ever been exercised, or no certiorari has ever been issued iu such eases, and as no law now exists to disqualify Mr. Johnston from practising, and the justices, upon full information, have determined that he is qualified to be admitted agreeably to the act of assembly, and have admitted him accordingly, I hope the Court will, in this case, discourage such an unwarrantable proceeding, by quashing the certiorari issued, and put an end to an affair, which seems to have taken its rise from a busy intermeddling spirit, and carried on, not with a regard to the public good, nor called thereto by the duty of public office.

At this term the case was struck orr-.  