As a member of this court, I am impressed, by a strong sense of duty, to put on record some conclusions which I have drawn in reference to the case at bar. Only a high sense of duty impels me to write herein; there being much more involved in the final judgment *Page 573 about to be entered in this case than the mere fate of a single individual.
I am of the fixed opinion that the question presented to this court on this record is: Shall Marshall be reinstated because of his present good moral character? I think when the record in this case reached this court it was authorized only to consider this as a de novo case, one of which this court had original jurisdiction, in its inception, and which has not been lost, abrogated, or abridged by any act of the Legislature, and that section 26, c. 121, Laws of 1932, must be given this construction, or else the Legislature has transcended its power and deprived this court of its inherent right to function and preserve its decorum.
It is my view that our opinion rendered in the case of Steen, Marshall, and others, reported in 160 Miss. 874, 134 So. 67, held that, independent of statute, this court had inherent power and right to disbar and discipline an attorney who had offended to the extent that such was necessary to correct the evil. The authorities are there collated and cited, and it will not be necessary to repeat them. It is also my view of a rule of this court that only the court which exercises the power to disbar has the right and power to reinstate. See Ex parte Redmond, 159 Miss. 449,132 So. 328. Any other conclusion would tend to disrupt the harmony of the courts, and would defeat that attuned symmetry and peace necessary to be preserved in courts of justice. This rule is supported in 6 C.J., p. 615, sec. 398. The inherent power in courts is as firmly fixed as part of their jurisdiction as if written in the Constitution; and, when the Constitution itself creates courts with certain jurisdiction, it just as certainly ascribes to these courts the power to freely function in the administration of justice, and courts cannot be deprived of those necessary inherent powers by a legislative fiat, or by any other power than that which shall be expressed affirmatively in the Constitution *Page 574 or the fundamental law of the land. The Supreme Court of Mississippi, as such, is established by the Constitution of 1890. It is not within the power of the Legislature, as to this constitutionally established court, to abrogate or abridge any power vested by the Constitution, or any inherent power it has as such. See 12 C.J. 816, section 260.
By the judgment which it is indicated will be entered in this case, the inherent power of the court to discipline an attorney or officer thereof is surrendered and vested in the nisi prius courts, and this court is shorn of its inherent power to discipline and disbar if the occasion demands. In the case at bar, the power of this court, by the judgment affirming the decree of the court below, is now exercised as though the court was one of appellate jurisdiction and not a court of original jurisdiction in this behalf. If the statute is so construed, final judgment here is controlled by the decree of the court below. That decree is simply a finding of fact, and, by an equally divided court, we have the anomalous spectacle of a judgment of this court being set aside by a lower court, which will be construed by the bar as tantamount to an overruling of the Steen Case, supra.
In re Franklin (Miss.), 138 So. 307, three members of this court took the view that Franklin was guilty of conduct warranting and requiring his disbarment, while three members took the opposite position, resulting in the discharge and acquittal of Franklin. The affirmative could not prevail. There is no reason nor logic why the same rule should not apply to this case. Four judges cannot say that Marshall should be reinstated; therefore the affirmative loses, and, in my opinion, the petition should be dismissed, and no virtue or effect given to the decree of the chancery court in this case. By the statute that decree had no virtue whatever in this case until and when this court by its final unrestricted judgment on the facts in the record, or on other facts, put it in force. *Page 575
Recurring now, as briefly as I may, to the main case, it is my view of this record that it demonstrates that the original decree of disbarment should be adhered to, and that the petitioner who fails to present to this court just cause for readmission should not be reinstated.
It is my view of the law applicable to cases of reinstatement or disbarment of attorneys, that the proof must be sufficient to overcome the court's former adverse judgment of the applicant's character. Plainly stated, the former judgment, which became final on March 7, 1932, was that the applicant's character was bad; that he was guilty of blackmail; that he said in his sworn testimony he gave the money to the so-called Jack Wilson, thus swearing falsely; and he permitted his stenographer to corroborate him in matters which the court did not believe, as stated in the opinion.
I am also of the opinion that it is necessary for such proof to rise to such dignity that it overcomes such a judgment. 6 C.J. 615, section 97. Proof of good moral character that would be sufficient to grant a license to an attorney is not sufficient on an application for a reinstatement where he has been disbarred, and the opinion of attorneys and friends that he has been sufficiently punished should not control a court's decision. See cases of In re Wellcome, 25 Mont. 131, 69 P. 836, In re Pemberton (Mont.), 63 P. 1043, and Matter of Clark, 128 App. Div. 348, 112 N YS. 777, 779, where the court approved language peculiarly applicable to the facts in the case at bar, as follows: "We appreciate that Mr. Clark has presented to us the letters of many men, laymen as well as lawyers, urging his reinstatement. It is to his credit that a large number of his acquaintances in Genesee county, where he resided, vouch for the uprightness of his life since his disbarment. Many prominent lawyers testified before the referee in the disbarment proceeding to his high standing, and yet Clark did not deny the charges against him, culpable as they were. The witnesses *Page 576 in his behalf, and the men now advising his restoration to practice may be influenced mainly by sympathy for the petitioner. They perhaps overlook the fact that the question has a broader significance than its personal aspect. If the possible benefit to the petitioner were the only effect of our action to be considered, we might yield to the recommendations and permit him to be reinstated. The effect of such a decision upon the profession, however, must be taken into consideration. His restoration would indicate a tendency on the part of this court to treat lightly the gravest of offenses, deliberately committed and persistently justified."
I am profoundly impressed that the language of the New York court just quoted fits the facts of the case at bar, except that in the Clark Case the petition for reinstatement was filed two years after his disbarment, which fact should be considered. In the case at bar, on March 7, 1932, this court overruled Carl Marshall's suggestion of error, and before the month of June, 1932, had passed, we find his petition filed and evidence taken, and many witnesses who testified, in effect, that his character at and before that time, and since his disbarment, was good, and that such witnesses desired and recommended his reinstatement.
In my view, Marshall's sworn statement that he was disbarred by this court on a technical charge of blackmail displays his character and shows the real man. Blackmail is but another way of violating the Eighth Commandment, a moral concept and rule indorsed by practically all civilized nations as the correct principle of life. We said that Carl Marshall, in effect, was the high priest who secured from Craft eighty thousand dollars in ten thousand dollar bills, by playing upon Craft's fear and his great desire for his stolen papers which Latham had "tried to peddle," but failed, whereupon Carl Marshall went to Memphis, met Craft, and, having delivered to Craft the papers, for a part of which *Page 577 Marshall waited until his associate, Latham, sent them to Memphis, as Craft would not pay the money to Marshall until full delivery of his papers to him was consummated, made a trade with Craft, and received from him the eighty thousand dollars. Latham could not dispose of the papers, but the petitioner did. When Marshall interviewed Craft in New Orleans, he was astounded that Craft was willing to pay twenty-five thousand dollars in the Durant lawsuit; and yet, before he (Marshall) had ever heard of "Jack Wilson," he demanded that Craft pay one hundred thousand dollars, and claims to have paid a goodly portion of the money received to said Jack Wilson in Memphis. And, although at the time there were large banks in Memphis, this eighty thousand dollars received, forsooth, must trail the entire state of Mississippi to a bank in Bay St. Louis to get change for a ten thousand dollar bill. Pages could be written upon the inconsistencies of this statement.
I have stated enough facts to demonstrate that this was no technical blackmail. No judge would disbar a lawyer upon a technical charge. The original disbarment was upon Carl Marshall's sworn evidence, after months of deliberation and preparation by him, and those who presented his case in this court. Is that false swearing a technicality? I think not.
The evidence of his friends of his repentance, and their belief in him, must be based upon the presumption that he has led them to believe that the charge was only technical.
He has, by this blackmail and the eighty thousand dollars extorted from Craft, bedaubed the state of Mississippi from Plum Point, on the Tennessee line, to Goose Point on the Southern border. He disgraced his profession, and he does not now realize that he was disbarred for a crime unworthy of a lawyer, but says he was disbarred for a technical crime.
I cannot recommend or judge such a man a worthy *Page 578 member of the bar. He committed his crime deliberately, not in the heat of passion. His evidence was given in this court after months to ponder over the situation, and his whole course has been deliberate, unworthy, and defiant. Then, too, he retains the fruits of his wrongdoing and has never even suggested that restitution be made by him. If a man takes my money or goods from me and says, with his lips, that he is sorry, but retains my property or the fruits thereof, his vocal protestations are but as sounding brass and tinkling cymbals. The act belies the spoken word.
We said that Howie, who came into the possession of money innocently, but who held it wrongfully, it being his fee in the Durant lawsuit collected by Marshall, under threat of disbarment, must divest himself of this tainted money. By what rule of logic, reason, or right, justice, or equity or fair dealing, can Howie be forced to divest himself of money which he only held unlawfully, while Marshall secured the money unlawfully and retains it unlawfully, answering only, "I have no money," and is not asked to divest himself thereof? So far as I have read there has never been a greater scandal superimposed upon the bar and the people of our great state as is before us in the conduct of this unrepentant petitioner. They say that Marshall committed only one offense. I have called attention to his deliberation, to the long time after he was exposed, and to his letter to Latham, his partner in crime, all of which indicates that he was guilty of a grave offense. Much of the Holy Bible has been quoted to us. We need only to point to one outstanding case, Judas Iscariot. He did not sell his Lord but one time, and, so far as known, he was never brought into court. Is there a man of good judgment who will defend Judas? He had great remorse. Not so with Marshall. He is truer to himself, his friends and witnesses, than he is to the courts of this state. *Page 579
So much for Sacred Writ. Benedict Arnold, a brilliant general in the Revolutionary War, did not sell his country but one time to England.
Could either Judas or Benedict Arnold be reinstated and receive a certificate of the highest courts of the state that these men were of good moral character and ought to be admitted as officers of the court? I think not.
The make-up of human nature carries with it the possibility of wrongdoing to one's self, and against human society. The means of retrieving, in any worth while degree, the personal loss and counteracting the social harm from wrongful acts is repentance; and the indispensable condition of forgiveness which is recognized by the moral judgment of mankind is repentance. There can be no eloquence on behalf of wrongdoing; "hypocrisy is the homage which vice pays to virtue." Fortunately, there is a restorative power for building a wasted life, and that power is true, genuine repentance, which is the beginning of the restoration of right within one's ruined self, and the beginning of the establishment of grounds for renewed public and judicial confidence.
Repentance concerns the three cardinal modes of personal being, knowing, feeling, and willing; acknowledgment of wrongdoing alone within itself is not repentance. This may be no more than defiance; sorrow alone for wrongdoing or crime, however deeply felt or voiced, is not repentance, for this may be only no more than remorse; and a will or resolution toward abandonment of evil is not repentance, for this may be but cautious prudence. True repentance involves total relationships, and genuine repentance is the admission of wrong uttered by the tongue, inspired by an honest spirit, repudiation of it, and the rectification of the wrong as far as possible. The petitioner, when faced with these, declares his allegiance to friends and self over against the courts, the law, and his brethern. His concept, carried to its logical conclusion, would destroy organized government, and undermine our social structure. *Page 580
The stately majesty of personal honor, and the standard of public and judical morality, must be upheld. An acknowledgment of and repudiation of wrong, and, where necessary to correct and rectify a wrong inflicted upon corporate society, a frank and full confession, are all indispensable prerequisites to acceptance of repentance as genuine, and to setting aside the personal, social, and legal penalty imposed for wrong acts. Pardon and reinstatement cannot be constructively appropriated by one who keeps hidden, unconfessed, and unrequited, that which is necessary to rectification; and a determined resolve, at whatever cost of humiliation, to set things right, is the unquestioned evidence of genuine repentance.
Undertaking to uphold public security, or to re-establish self-respect and public confidence without these combined elements of true repentance, is more demoralizing than unwarranted and indiscriminate charity. There is no mercy in permitting the proud, defiant, unrepentant, to go on; mercy to such a one requires that he be given a chance to escape the continuous consequence of his wrongdoing, by knowing, within himself, that he has sincerely and honorably tried to do all within his power to contravene the results of his wrongdoing. It would be unmerciful to him, and injurious to society and the courts, to condone his offense and allow him to proceed as if no wrong had been committed.
An inexorable demand for true repentance is, in reality, good will working in behalf of the penitent; for to treat as superficial the fact of inward wrong and public offense, and accept outward suggestions void of evidence of true repentance, would be to leave the penitent without deliverance from moral obliquity and prevent that wholesome recovery which is essential to rehabilitation on the solid foundation of restitution and rectitude.
Life consists of mutual trust and public respect and confidence, and not of genius or personal, magnetic charm, but rests upon the bedrock of individual integrity *Page 581 and social righteousness. Indeed, society can only be secure in its rights and liberties when it is understood that its unfortunate members who perpetrate willful crimes indicative of bad character, shall be expected — nay, required — to possess and show these elements of genuine repentance before they can enjoy the benefits of unmerited mercy. This exaction on the part of civilized society is not inhumanity, for it constitutes the only assuring ground of public security, personal recovery, and the rehabilitation of the offender to a sustaining position of public confidence.
Such is my concept of reinstatement to the bar of one who has fallen. So long as the petitioner deludes himself with the idea that his offense was not heinous, but only technical, he is without the pale of these simple statements of conditions prerequisite to his readmission among us.
In re Franklin, supra, the members of the court who discharged and acquitted him said, relative to Marshall, that he rode a ridge pole — he has not, to this date, dismounted; he rides on.
In effect, it is said that Carl Marshall is too great a lawyer, too brilliant, to remain disbarred. Conceding his ability for the sake of this opinion, and if the premise be true, the greater the reason for requiring him to be a living example, known and read of all men, that punishment is meted to the high and mighty as well as to the meek and lowly. Shakespeare, presumably, was not a lawyer, but, in poetry, he has delineated my view of Marshall and his crime, as follows:
"The baser is he, coming from a king, To shame his hope with deeds degenerate, The mightier man, the mightier is the thing, That makes him honour'd or begets him hate; For greatest scandal waits on greatest state, The moon being clouded presently is miss'd, But little stars may hide them when they list. *Page 582
"The crow may bathe his coal-black wings in mire, And unperceived fly with the filth away, But if the like the snow white swan desire, The stain upon his silver down will stay. Poor grooms are sightless night, kings glorious day, Gnats are unnoted wheresoe'r they fly, But eagles gazed upon with every eye."