State v. Johnston

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 re ¹⁶⁷ fused 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 ¹⁶⁸ 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 ¹⁶⁹ 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