The protestation with which the answer opens, is irrelevant to any matter for consideration at this stage of the proceedings, and would not be noticed save that it is calculated to create prejudice in the minds of persons who do not understand the meaning of terms used in judicial proceedings — "laymen" as brother Battle termed them.
This was a rule nisi, to-wit: that Mr. Moore, and other gentlemen, be disabled from hereafter appearing as Attorneys in this Court, unless they shall severally appear, on Tuesday, the 15th of June, 1869, and show cause to the contrary; and it was ordered that a copy be served on said Attorneys. *Page 404
The effect of the rule was to deprive Mr. Moore of his privileges as an Attorney of this Court until the matter was disposed of. No application was made to alter the form of the rule. Suppose it had been, and the rule put in this shape: Ordered, that notice issue to B. F. Moore, Esq., Attorney, c., to appear on Tuesday, the 15th inst, and show cause why he shall not be disabled, c., it would have had the effect of depriving him of the privilege of appearing as an Attorney in this Court until the matter was disposed of. For the order would not have been made except upon prima facie evidence to support it. So, in either form, the effect would have been to deprive Mr. Moore, "temporarily of his privileges as an Attorney of this Court," a necessary incident of the proceeding in either form. Consequently, the form of the rule is no legitimate ground for complaint.
The other objection, that the rule was made without affidavit, or other legal proof of the facts upon which it is based, is equally untenable. It is admitted that where the proof is furnished by the senses of the Judges, it may be acted on. Here there was such proof. We knew by our senses that a newspaper containing the paper referred to, purporting to be signed by Mr. Moore and others, had been extensively circulated and was then in the court room; and the want of a disavowal on his part, that he had signed the paper, or consented to its publication, furnished prima facie proof, not sufficient for final action, but all sufficient as ground for the rule. On his appearance he was at liberty to deny the fact without an oath, and the denial, like the plea of "not guilty," would simply have put the fact in issue — and he would have been entitled to have the rule discharged, unless the fact was proved by direct testimony. Instead of that, he admits the fact. So this is no legitimate ground of complaint. In short, all the preliminary objections were waived, and the reference to them can answer no useful purpose.
1. "The Respondent insists that the Supreme Court hath no authority to make, or jurisdiction to enforce, said rule." This position is put on the ground that the statute, ratified 10th of *Page 405 April, 1869, defines all matters of contempt, fixes the punishment, fine or imprisonment, or both; and, by implication, ousts the common law jurisdiction of the Court over the morals and behavior of its Attorneys.
We agree with the learned counsel of the Respondent in the opinion that the statute does not embrace our case. It is not embraced by subdivision 8, section 1: "Misbehavior of any officer of a Court in any official transaction," as receiving money and failing to pay it over. So the question, is, are the Courts deprived, by implication, of the power of self protection and the means of relieving themselves from the presence of unworthy Attorneys, or those Attorneys who, by combination, (I will not use the harsher word, conspiracy,) seek to impair the dignity and veneration, with which the judiciary is invested, by which it can command the respect and confidence of the public, — without which, its usefulness will be greatly impaired, or altogether destroyed? A mere statement of the proposition is sufficient to show that the statute has not that effect.
By another statute, persons who apply for the exclusive privilege of Attorneys at Law, and the right to enjoy the emoluments of the dignified position of "a member of the Bar," are required to produce satisfactory testimonials of good moral character, and thereupon the law tacitly annexes a condition whereby this exclusive privilege is forfeited after bad conduct; and it is not only the right, but the duty of the courts, to enforce the forfeiture. Suppose an Attorney of a Court is tried and convicted of "forgery," and the day after enduring infamous punishment, appears in Court; is he to be allowed to exercise the privilege of an Attorney, and has the Court "no power to make, or jurisdiction to enforce" a rule to show cause why he shall not be disabled from appearing before it? Or, suppose two or more Attorneys are convicted of a conspiracy, which is an infamous offence; or of a libel, which is also an infamous offence, has the Court no power to rule them out? No one will venture to question the power or duty of the Court to do so. It may be said these are extreme cases; *Page 406 true, but if the statute does not oust the Common law jurisdiction in such cases, the learned gentlemen must yield the position taken by them.
These cases presuppose trial and conviction for an offence where the Court has no further concern than to preserve the purity of its Bar. But the power and jurisdiction of the Court apply with equal clearness to cases where the integrity of the Court itself is assailed by a libellous publication made by a combination of a part of its Bar, which, in the argument of this point, is to be assumed to be our case. Under these circumstances, the principle of self-protection, the broad ground on which the whole doctrine rests, calls into action the powers of the Court, as soon as there is prima facie evidence of the fact, without waiting for a trial and conviction in another Court, — like the case of mutiny among a crew. The Captain must put a stop to it at once, else he betrays the confidence reposed in him; or, the case of the head of a family who finds some of its members combining to injure, or to bring him into disrepute, he must rebuke it at the outset, if he would preserve the influence and control necessary for the good of the family.
II. The Respondent insists "that the publication referred to, is not libellous, and doth not tend to impair the respect due to the authority of the said Court."
The paper is drafted with all the adroitness of a skilful lawyer; and, under cover "of love and veneration for the past purity which has distinguished the administration of law in our State," aims a deadly blow at the Court to which that sacred trust is now confided.
Stripped of the beautiful dress by which it is artfully disguised, it amounts to this: A Judge, who openly and publicly displays his political party zeal, renders himself unfit to hold the "balance of justice;" and whenever an occasion may offer to serve his fellow partisans, he will yield to the temptation, and the "wavering balance will shake."
"Never before have we seen the Judges of the Supreme Court, singly or enmasse, rush into the mad contest of politics, under the excitement of drums and flags," therefore, the *Page 407 Supreme Court, which is composed of these Judges, is "unfit to hold the balance of justice," and will, on occasion, yield to temptation in favor of a fellow partisan.
If you hurt the head, or arm, or leg, or limb, or member, or any part of the body, you hurt the man. And the idea of an intention to injure the character of the Justices who compose the Supreme Court, singly or enmasse, without an intention to injure the Court, is simply ridiculous.
The only allegation of fact on which this "solemn protest" rests, is that `the Judges, single or en masses, did rush into the mad contest of politics, under the excitement of drums and flags."
Is this allegation of fact true, or is it false? There is no pretence that it is true. It is said, this is a figure of speech, suggested by something that was expected to occur, but never did occur; so the allegation of fact is false, and the inference drawn from it is also false.
In our judgment the paper is libellous, and "doth tend to impair the respect due to the authority of the Court."
Indeed, the learned counsel did not press this point, and were content to take the ground that there was no criminal intent.
Every man is presumed to intend the natural consequence of his act. If one wilfully sets fire to his own house, which is so near his neighbor's house, that if one burns the other must burn also, and both houses, are burnt down, the man is guilty of arson — the criminal intent is presumed. So, in an indictment for libel, this ground would be untenable, except on proof of insanity.
"III. And for further answer this Respondent says, that said paper was conceived and prepared during the recent political canvass for the Presidency, and its publication deferred until after the close of the canvass, to avoid its having the appearance of a partisan document. He admits that his purpose was to express his diapprobation [disapprobation] of the conduct of individuals occupying high judicial stations, yet, as an act of justice to himself against the charge made in the rule, he not only *Page 408 disavows, in signing and publishing said paper, any intention of committing a contempt of the Supreme Court, or of impairing the respect due to its authority, but, on the contrary, he avows his motive to have been to preserve the purity which had ever distinguished the administration of justice by the Courts of this State."
The learned counsel then fell back on the ground of a distinction between an indictment for a libel and a rule nisi to show cause, and assumed, as a matter of law, that in this case the Respondent having, on oath, disavowed any intention of committing a contempt of the Court, or of impairing the respect due to its authority, so as to meet the words of the Rule, it must be discharged. The authorities cited by the learned counsel are conclusive. The law is well settled in this class of cases, where the intention toinjure constitutes the gravamen.
The Rule rests on sound reason. In this proceeding, as the Court is judge in its own case in the first instance, where a case is made out in the judgment of the Court, the party in the last instance is allowed to tryhimself. His intention is locked within his own breast, is known to himself alone, and he is permitted to purge himself by his own avowal. He cannot be convicted, if he is innocent, as he may be by false evidence, before ajury. For the Court does not try him, he tries himself." C. J. Wilmot's Opinion, 257-8, referred to on the trial of Judge Peck, 507. If the party, after the Court decides against him, declines to try himself, it must be because he knows himself to be guilty.
It affords every member of the Court pleasure that the Respondent did not decline to make a sufficient disavowal on oath. We agree with the learned counsel that this disavowal meets the words of the rule; but we must say, it seems to us in bad taste to have introduced the expression, "he admits that his purpose was to express his disapprobation of the conduct of individuals occupying high judicial stations."
This is so vague that the Court is unable to give to it a positive meaning; and yet, it seems to imply that in taking the *Page 409 oath the Respondent meant something which he hesitated to express, lest it might be taken to neutralize the legal effect of his disavowal. The concluding words of the oath are enough to express the purpose which the Respondent avows he had in view, and the vague words referred to may be treated as surplusage. This presented the only difficulty to coming instantly to our conclusion, that the disavowal is sufficient.
We concur with his counsel in according to Mr. Moore high encomium for his ability, legal learning, integrity, devotion to the Constitution, unwavering love of the Union, and hitherto most consistent and influential support of the judicial tribunals of his country.
The motion to discharge the Rule is allowed, on payment of costs, a case having, in the judgment of the Court, been made against the Respondent, so as to call for a disavowal on his part. It is proper that he should pay the costs. He is not acquitted, but is excused.
PER CURIAM. Rule discharged.