Case of Austin , 5 Rawle 191 ( 1835 )

The opinion of the court was delivered by

Gibson, C. J.

An attorney at law is an officer of the court. The terms of the oaths exacted of him at his admission to the bar, prove him to be so; “ you shall behave youself in your office of attorney within the court, with all due fidelity as well to the court as the client.” Again: it is declared in the Constitution, article 1, sec. 18, that “ no member of Congress or other person, holding any office, (except attorney at law, and in the militia,) under the United States or this Commonwealth, shall be a member of either house (of the legislature,) during his continuance in Congress, or in office,” which is a direct constitutional recognition. And his office is an office for life. Though recognized by the Constitution as we have seen, it is without limitation of duration by the terms of admission to it, by the provisions of the constitution, or by any statute. The grant of an office without express limitation, at common law being taken most strongly against the grantor, endures for the life of the grantee; and though this principle has not been applied to offices within the grant of the executive, it must necessarily be applied to the office of attorney, for to subject the members of the profession to removal at the pleasure of the court, would leave them too small a share of the independence necessary to the duties they are called to perform to their clients and to the public. As a class, they are supposed to be, and in fact have always been, the vindicators of individual rights, and the fearless asserters of the principles of civil liberty; existing where alone they can exist, in a government not of parties or men, but of laws! On the other hand, to declare them irresponsible to any power but public opinion and their consciences, would be incompatible with free government. Individuals of the class may, and sometimes do, forfeit their professional franchise by abusing it; and a power to exact the forfeiture must be lodged somewhere. Such a power is indispensable to protect the court, the administration of justice, and themselves. Abuses must necessarily creep in; and having a deep stake in the character of their profession, they are vitally concerned in preventing it from being sullied by the misconduct of unworthy members of it. No class of the community is more dependent on its reputation for honour and integrity. It is indispensable to the purposes of its creation to assign it a high and honourable standing, but to put it above the judiciary, whose official tenure is good behaviour, and whose members are removable from office, by the legislature, would render it intractable; and it is therefore, necessary to assign it but an equal share of independence. In the absence of specific provision to the contrary, the power of removal is, from its nature, commensurate with the power of appointment, and it is consequently the business of the judges to deal with delinquent members of the bar, and withdraw their faculties when they are incorrigible.

But the end to be attained by removal, is not punishment, but protection. As punishment, it would be unreasonably severe, for those cases in which the end is reclamation and not destruction, and for which reprimand, suspension, fine or imprisonment seem to be the more adequate instruments of correction; for expulsion from the bar, blasts all prospects of prosperity to come, and mars the fruit expected, from the training of a lifetime. For this reason, the statute to regulate attachment and summary punishment for con-tempts, seems to be inapplicable to this class of cases. Expulsion may be proper, where there has been no contempt at all; as in cases of brutality, drunkenness, and the whole circle of infamous crimes. It is one thing to remove from office, for unfitness, and another to punish for contempt. In fact, the court may have recourse to both together, and there is no reason, therefore, why it should not be at liberty to proceed on the ground of unfitness, and waive the contempt. It is not doubted that any breach of the official oath is a valid cause, for proceeding for the former; for the man who deliberately violates the sanctions of a lawful oath, proves himself to be unworthy of further confidence; society has no other hold upon him. The most insignificant breach of the fidelity enjoined may, therefore, be visited with this measure. But it is supposed that as this fidelity is exacted by the terms of the oath, but “ in the office of attorney,” and “ within the court,” the act which may violate it, must be done in the face of the court. The oath undoubtedly looks to nothing like allegiance to the person of the judge, unless in those cases where his person is so inseparable from his office, that an insult to the one, is an indignity to the other. In matters collateral to official duty, the judge is on a level with the members of the bar as he is with his fellow citizens, his title to distinction and respect resting on no other foundation than his virtues and qualities as a man. But it is nevertheless, evident that professional fidelity may be violated by acts, which fall without the line of professional functions, and which may have been performed out of the pale of the court. Such would be the consequence of beating or insulting a judge in the street for a judgment in court. No one would pretend that an attempt to control the deliberations of the bench, by the apprehension of violence, and subject the judges to the power of those who are, or ought to be subordinate to them, is compatible with professional duty, or the judicial independence so indispensable to the administration of justice. And an enormity of the sort, practised but on a single judge, would be an offence, as much against the court, which is bound to protect all it members, as if it had been repeated on the person of each of them, because the consequences to suitors and the public would be the same; and whatever may be thought in such a case, of the power to punish for contempt, there can be no doubt of the existence of a power to strike the offending attorney from the roll.

It is equally obvious that an attempt to overawe the bench by menace, challenge, or the employment of an engine so powerful as the press,, is an offence of the same stamp, the difference being but in the means of committing it. It may be said the judge is bound to despise consideration of danger or annoyance, and do his duty manfully without regard to consequences. The law however deals differently with human infirmity, and provides for the influence of those hopes and fears which are in a greater or less degree inseparable from our nature. Moral courage, to an ordinary extent, is certainly a necessary qualification for the bench; but physical courage is no more a qualification, than animal strength or prowess in fighting. The enormity of breaking the peace by assaulting its official conservators, which might be sufficient evidence of professional disqualification, without recourse to the purpose to be gained by it, would be wanting in the case of a libel, unless it were a very gross one; and therefore the motive should be clearly shown to have been the acquirement of an influence over the judge in the exercise of his judicial functions by the instrumentality of popular prejudice. Does the existence of professional responsibility for libel, when thus limited and guarded, impinge on the liberty of the press? The conduct of a judge, like that of every other functionary, is a legitimate subject of scrutiny, and where the public good is the aim, such scrutiny is as open to an attorney of his court as to any other citizen. It is the prostitution of it to impure purposes, that can bring him into collision with his professional fidelity. Even a battery might be committed by an attorney on a judge consistently with the official relation, if provoked in matters of social intercourse. It is the motive therefore that makes an invasion of the judge’s rights a breach of professional fidelity; from which he is to be protected for the sake of the public and the suitors of his court, not for his own. To impair the general confidence in the purity and efficiency of the administration of distributive justice, is a vital injury to it; and the attorney who abuses the public credulity with a view to that effect, cannot complain if the faculties from which his capacity for mischief is mainly derived, be taken away from him. The sum of the matter is, that an attorney at law holds his office during good behaviour, and that he is not professionally answerable for a scrutiny into the official conduct of the judges, which would not expose him to legal animadversion as a citizen. Such being the principle, it is necessary to ascertain the form and pressure of the case, to which it is to be applied. The ground of disrespect laid by the President of the Common Pleas, is the letter sent to him by the respondents. The rule to show cause was laid without specification of cause for expulsion, except that this letter was then put on the record, and undoubtedly as containing the matter to which they were required to. respond. It was only when told that the publication of the correspondence would be insisted on as a separate charge, that they put in a supplementary answer to it, and having been treated as such there, it is to be treated as such here.

But nothing was said óf the prefatory matter, which introduced the correspondence to the public; nor was the newspaper which contains it, even filed.^* It is doubtful, therefore, whether it can be treated as a part of the case. For myself I should say it cannot. The additional matter put upon the record by the respondents, consists of two letters addressed to them by' the president, the first being that which elicited the offence of the respondents, and the second a reply to it. The case is then made up of these three letters, the fact of publication, and possibly the prefatory remarks which accompanied it. Now, without taking into view the solicitation of an interchange of views contained in the president’s first letter, the assertion that the Court had lost the confidence of the public and the suggestion of his retirement as the means of restoring it, might be deemed an impertinence; but not affecting the course of his- public duty, it could not be deemed a breach of professional fidelity. But looking to the terms of his letter, we find their expressions to be but an echo of his own. He had spoken to them of discipline relaxed and disorder introduced; of inadvertent remarks indicative of contempt for his decisions, and calculated to impress the public mind unfavourably to the Court and himself its organ; and of giving place to a successor who might obtain their confidence and co-operation. His design to do so, he had spoken of as having been yielded to the advice of his friends, but not as having been relinquished; and in conclusion, he had solicited their views in reference to the future. These sentiments were expressed neither in the words nor in the connexion in which I have arranged them; but it is evident they were considered in this connexion by the respondents in framing their reply. “ The public confidence” they said, “ seems to be withdrawn alike from the bar and the Court. Perhaps your honour’s retiring from the bench, as you have intimated a willingness to do, and giving the people power to select another, would be the means of producing a better state of things, and a more cordial co-operation from all sides, in the despatch of the business of the Court. This expression of our views is made in candour and sincerity, and without a wish to inspire one unpleasant thought or unkind feeling, but under a sense of duty to the county in which we live, to your honour and to ourselves.” Surely these expressions breathe any thing but contumely. It is alleged that a memorial presented to the Court a few months before, and signed by five of the eight respondents, and the remarks prefixed to the correspondence, evince a different state of feeling. To a mind exasperated by a sense of outrage, it would naturally appear so; but the impression would be effaced by reflection. The memorial being no part of the case, is to be laid out of view; but we are bound by a sense of what is due to the occasion to express no less than painful surprise, to learn that gentlemen whose professional intercourse with us has been superior to all exceptions, have participated in scenes elsewhere, whose reminiscences can furnish no subjects of gratulation or sentiments of self-respect. The remarks prefixed to the correspondence were doubtless written in an angry temper; but as the contest had assumed a character of determined hostility, they were not fairly indicative of the temper that prevailed before; and whatever may have been the secret motive of the respondents, the language of their letter is bland and respectful.

The character of the act of publication depends on the motive for it. Was ,the object of the respondents to assail the reputation of the president or to defend their own ? Iam unable to understand why it should have been supposed the former; for there is nothing in the correspondence to disparage him as an officer or a man, though labouring under evident, but excusable excitement, his language was temperate and courteous, the measure proposed alone being badly chosen. The officer who parleys with resistance, proposes terms of capitulation. A better, and the only effectual cure for the disorders of his court, would have been a firm, but temperate and equable application of authority to the refractory, and the prompt expulsion of those who braved it. Had the respondents been removed from office for actual insubordination, their case would have been a clear, but hopeless one. But they have earnestly and uniformly protested, that the object of the publication was not to affect the judge, but to disabuse the public mind; and professing this to be their motive, it seems to me that in the absence of evidence to disprove it, we are bound to receive it as’ the true one. They too acted from the impulse of excitement, for which allowance is to be made, believing, as they say they did, that the president had implicated them in the disgraceful assault on his person. But what seems to be entitled to a decisive influence in a legal view, is the fact, that the publication was made by them, not as members of the bar, but as persons put upon their defence, by an intimation that they were to be dealt with criminally. In that predicament, to entrench themselves in popular prejudice, may have been wrong in them as men, but certainly involved no dereliction of professional duty. In conclusion, it appears that a case to justify the removal of the respondents, has not been made out; and it is . therefore considered that the order which made the rule absolute be vacated, and the rule discharged; that the respondents be restored to the bar; and that this decree be certified to the Common Pleas of Fayette county.

Decreed accordingly.

* The prefatory matter spoken of, by the Chief Justice, was published, with the correspondence, in the Pennsylvania Democrat, published in Uniontown, Fayette County, on the 31st of December, 1834, and is as follows:

“ To the People of Fayette County.

“ The following correspondence between Judge Baihd, and the members of the bar of Fayette county, is submitted for publication, under the belief if it has any interest it belongs to the people of the county.

“ Immediately after the assault upon the Judge at the last term, he declared that he considered the attack upon him as the act of Fayette county, and that he had no doubt that two-thirds of the people of Uniontown knew that it would be made before it took place — that he would never hold another court in the county — that he would resign. These declarations, the bar believed, had been made by the Judge. They feel confident there was no foundation for the charge against the people of Uniontown, or the county, and knew well none existed to justify the imputation against themselves.

“ They were also informed that the Judge had written a most violent letter involving them in the' criminality of the assault upon him, but which he suppressed at the instigation of his friend, and in its stead wrote the one below.

“ The members of the bar felt exceedingly mortified that it should enter into the mind of any rational being to connect them in any form or shape with the assault upon Judge Baim>, yet it is the burden of his whole letter that the misbehaviour and improper conduct of the bar produced the assault upon him. This is the sentiment it breathes from beginning to end. When the bar, however, learned that he entertained similar sentiments toward the people of Uniontown, and perhaps the whole county, they declined from self-respect to notice the letter in any other manner than as contained in their answer. It is firmly believed that not an individual inhabitant of Uniontown had the slightest intimation of such a design in Stevens. The act was deeply regretted, and the most prompt measures taken to bring the offender to trial. He was instantly seized, and taken before a magistrate. The public prosecutor immediately repaired to the Justice’s office, and remained to see that the defendant was effectually bound to appear at the next court, to answer to the laws, for the act. This was all that could be done, or that was supposed could be done. Not a single suggestion was there made that any other steps were necessary, or lawful, to secure the punishment of the defendant. The Judge asked the opinion of the bar, and they gave it. If he compromised “ the dignity of his office,” in addressing his letter to them, they would have compromised their own dignity and honour in answering it in any other than the language of truth, and their own honest .conviction: whether they did so or not is freely left to the people to decide.”