1. The Supreme Court of the District of Columbia, as organized
by the Act of March 3, 1363, is a different court from the criminal
court as fixed by the same act, though the latter court is held by
a judge of the former. Hence the former court has no power to
disbar an attorney for a contempt of the latter.
2. An attorney cannot be disbarred for misbehavior in his office
of an attorney generally, upon the return of a rule issued against
him for contempt
Page 74 U. S. 365
of court, and without opportunity of defense or explanation to
the first-named charge.
3. Mandamus lies from this Court to an inferior court to restore
an attorney at law disbarred by the latter court when it had no
jurisdiction in the matter, as,
ex. gr., for a contempt
committed by him before another court.
This case arose out of a petition by Joseph H. Bradley, Esq., to
this Court for the writ of mandamus, directed to the Supreme Court
of the District of Columbia to restore him to the office of
attorney and counselor in said court, from which he alleged that he
had been wrongfully removed by it on the 9th of November, 1867.
It appeared that the said "
Supreme Court of the
District of Columbia" had issued a rule against Mr. Bradley
reciting certain offensive language which it alleged had been used
by Mr. Bradley at the previous June Term of the "
criminal
court" to Mr. Justice Fisher, presiding justice, pending a trial
there for murder, and for which language the said justice, on the
10th August, entered a judgment ordering the name of Mr. Bradley to
"be stricken from the rolls of attorneys practicing in
this Court." The rule of the Supreme Court referred also
to certain alleged conduct of Mr. Bradley at the time that Judge
Fisher announced the order disbarring him in the criminal court,
and to a certain letter previously delivered to that judge, who had
been holding the said court, and it concluded in these words:
"And the said conduct requiring, in our opinion, investigation
by
this Court, it is therefore ordered, that said Joseph
H. Bradley show cause, on or before the fourth day of November
next, why he should not be punished
for contempt of
this Court by reason of said offensive conduct and
language towards one of its members and relating to the official
acts of the said justice."
To this rule Mr. Bradley made a return in which, after
expressing his satisfaction at the opportunity afforded him by it
to present his statement and version of the facts involved in the
investigation, and thus "to purge himself from any intentional
disrespect, contumely, or contempt towards
Page 74 U. S. 366
the court or any member thereof in the transaction referred to,"
he set up as one reply, among others, that the Supreme Court had
"no power, authority, or jurisdiction to punish for an alleged
contempt committed in
another forum."
It will be seen from this return of Mr. Bradley's to the rule of
the Supreme Court of the District issued against him that his
defense turned, so far as respected this point, upon the question
whether there was or was not a criminal court in the District as
distinguished from its Supreme Court, a matter depending on a
history and upon statutes which are now set forth:
By an act passed in 1801, [
Footnote 1] there was organized for the District the
"Circuit Court of the District of Columbia, vested with all the
powers of the circuit courts of the United States." It had
"cognizance of all
crimes and offenses committed within
said District, and of all cases in law and equity," &c.
By act of 1802, [
Footnote 2]
it was provided that the Chief Judge of the District of Columbia
should hold a district court in and for the said District, "which
court shall have and exercise within said District the same powers
and jurisdiction which are by law vested in the district courts of
the United States."
Thus stood the jurisdiction until the passage of an Act, July 7,
1838, [
Footnote 3] "to
establish a criminal court in the District of Columbia" for the
trial of all causes and offenses committed in the District. This
act provided that
"The said criminal court shall have jurisdiction now held by the
circuit court for the trial and punishment of all crimes and
offenses, and the recovery of all fines and forfeitures and
recognizances."
It provided also for a writ of error from the circuit court or
any judge thereof in any criminal case wherein final judgment had
been pronounced by the "criminal court" convicting any person of
any crime or misdemeanor.
It was further provided by an amendment of 20th of February,
1839, [
Footnote 4] that the
judge of the criminal court
"shall be
Page 74 U. S. 367
authorized to make all needful rules of practice, and
to
provide a seal for said court, and also that in any case where
the party might be related to the judge of the criminal court, then
the case and the record thereof should be sent to the Circuit Court
of the District, to be there tried and determined as if this act
and the act to which it is supplemental had never been passed."
Thus things stood till the 3d March, 1863, [
Footnote 5] when by act of that date the courts of
the District were reorganized.
The first section of that organic act established a court, to be
called the Supreme Court of the District of Columbia, which shall
have
general jurisdiction in law and equity, and consist
of four justices, one of which shall be chief justice.
The third section provided that the Supreme Court should possess
the same powers and exercise the same jurisdiction as was then
possessed and exercised by the Circuit Court of the District of
Columbia.
The justices of the court (the act proceeds) shall severally
possess and exercise the jurisdiction now possessed and exercised
by the judges of the said circuit court. Any one of them may hold
the District Court of the United States for the District of
Columbia in the manner and with the same powers and jurisdiction
possessed and exercised by other district courts of the United
States, and any one of the justices may also hold a
criminal
court for the trial of all crimes and offenses arising within
said district,
which court shall possess the same powers
and
exercise the same jurisdiction now possessed and
exercised by the
criminal court of the District.
The fifth section provided that general terms of the said
Supreme Court should be held at the same times at which terms of
the Circuit Court of the District of Columbia were then required to
be held, and at the same place, and that district courts and
criminal courts should also be held by one of said
justices at the several times when such courts were then required
to be held, and at the same place.
The sixth section provided that the Supreme Court might
Page 74 U. S. 368
establish such rules as it might deem necessary for the
regulation of the practice of the several courts organized by the
act.
The thirteenth, that all suits and proceedings which, at the
time the act should take effect, should be pending in any of the
courts thereby abolished should be transferred to the courts to be
established under the provisions of the act, and might be
prosecuted therein with the same effect as they might have been in
the court in which the same were commenced.
The sixteenth, that the circuit, district, and criminal courts
of the District of Columbia were thereby abolished, and that all
laws and parts of laws relating to said courts, so far as the same
were applicable to the courts created by this act, were thereby
continued in force in respect to such courts &c.
The Supreme Court of the District, having heard argument in
support of the return made by Mr. Bradley, entered its final order
to its rule as follows:
"
I
N THE MATTER OF JOSEPH H. BRADLEY, SR."
"
Contempt of Court"
"Mr. Bradley having filed his answer to the rule of the court
served on him, and having been heard at the bar in support of his
answer, it is by the court ordered that for the causes set forth in
said rule, the name of Mr. Bradley be stricken from the roll of
attorneys, solicitors &c., authorized to practice in this
Court."
After the order thus made, this Court (the Supreme Court of the
United States), on the petition of Mr. Bradley and motion of Mr.
Carlisle, granted a rule on the Supreme Court of the District
requiring them to show cause why a mandamus should not issue for
Mr. Bradley's restoration.
To the last-mentioned rule of this Court the Supreme Court of
the District made return:
1.
"That on the 10th of August, 1867, while Judge Fisher, one of
the justices of the Supreme Court, was holding a criminal court in
this district, the relator had been guilty
Page 74 U. S. 369
of contemptuous language towards the said judge in the progress
of a trial therein, and for which the said justice disbarred him
from the privileges of attorney and counselor of the Supreme
Court."
The return added:
"At the time the contempt was given, Judge Fisher was holding a
Supreme Court, and exercising its criminal jurisdiction as such
Supreme Court. There is no criminal court in this District; there
is, therefore, no judge of a criminal court in this District. The
Act of 3d March, 1863, abolished both the circuit and criminal
courts of the District of Columbia and transferred all their
several powers and jurisdictions to the Supreme Court created to
take their place. It prescribes in what manner said Supreme Court
shall exercise those powers and jurisdictions. One of the justices
shall hold a criminal court, another a circuit court, a third the
special term, and a fourth a district court. Or any one of the
justices may, at the same time, hold two or more of these courts.
But these several justices, when holding courts in this manner,
have no authority or jurisdiction of their own, for the law has
given them none. Their powers and jurisdiction are those of the
'Supreme Court,' and these it is which make a court. The court
where the powers and jurisdiction of the Supreme Court of the
District of Columbia are exercised is that court. The Supreme Court
of the District holds the criminal court, and the law makes one
judge the court for that purpose. The contempt in question was
therefore a contempt of the authority of the Supreme Court."
2. That
"the conduct of Mr. Bradley was not merely a contempt of the
authority of the Supreme Court of this district, but was also gross
misbehavior in his office of attorney, and that for this reason
also, his offense was cognizable by the court in general term,
irrespective of the doctrine of contempts."
The return proceeded:
"It is true that the rule to show cause, ordered against him by
the court in general term, ignored the order made by Judge Fisher
and called upon him to answer for the specified acts as a contempt;
yet after his return was made, the court, as it had
Page 74 U. S. 370
the right to do, considered his offense in both these aspects,
and"
"ordered, that for the causes set forth in said rule, the name
of Mr. Bradley be stricken from the roll of attorneys, solicitors
&c., authorized to practice in this court."
3.
"Because Mr. Bradley was removed only after due notice had been
served upon him and he had been heard in defense and after mature
consideration by the court. That the said order of the court was a
judgment of the court in regard to a matter within its own
exclusive jurisdiction, and not subject to review in any other
court, and especially not in this form of proceeding."
MR. JUSTICE NELSON delivered the opinion of the Court.
One of the grounds set up in the return to the rule to show
cause is that on the 10th of August, 1867, while Judge Fisher, one
of the justices of the Supreme Court, was holding a criminal court
in this district, the relator had been guilty of contemptuous
language towards the said judge in the progress of a trial therein,
and for which the said justice disbarred him from the privileges of
attorney and counselor of the Supreme Court. That at the time of
the committing of the contempt, Judge Fisher was holding not a
criminal, but a Supreme Court, and exercising its criminal
jurisdiction as such; that there is no criminal court in this
district, and therefore no judge of a criminal court; and that the
contempt committed before the judge was a contempt of the Supreme
Court. That the Act of March 3, 1863, abolished both the circuit
and criminal courts of the district and conferred all their powers
and jurisdiction upon the Supreme Court created by the act.
We think a reference to this Act of March 3, 1863, reorganizing
the courts in this district, will show that this is an erroneous
construction. It will be seen by reference to
Page 74 U. S. 371
this organic act that the new Supreme Court of this district has
conferred upon it only the same powers and jurisdiction as was
possessed by the circuit court just abolished. This circuit court
possessed at the time no original criminal jurisdiction whatever,
nor had it, since the 7th of July, 1838, for an act of that date
established a criminal court, upon which was conferred all the
criminal jurisdiction of the district.
A writ of error lies from the circuit court to this criminal
court, and doubtless does from the present Supreme Court to the
criminal court of the district.
The circuit court had originally been invested with all the
powers of a district court of the United States, but these were
taken from it in 1802, and a district court established within the
district, to be held by the chief justice of the circuit court.
These courts, the district and criminal, are preserved by the act
of 1863 reorganizing the courts, and are to be held in the same
manner and with the same powers and jurisdiction -- the one as
possessed by the district courts of the United States and the other
as possessed by the old criminal court of the district. The only
change made is that instead of each court's having a judge or
judges appointed to hold it, any justice of the Supreme Court may
hold the same. Under the old law, 20th of February, 1839, in case
of the inability of the judge of the criminal court to hold the
same, one of the judges of the circuit was authorized to hold
it.
It is plain, therefore, that according to a true construction of
the act of 1863, reorganizing the courts of this District, the
Supreme Court not only possesses no jurisdiction in criminal cases
except in an appellate form, but that there is established a
separate and independent court, invested with all the criminal
jurisdiction, to hear and punish crimes and offenses within the
district. And hence one of the grounds, if not the principal one,
upon which the return places the right and power to disbar the
relator fails, for we do not understand the judges of the court
below as contending that if Judge Fisher, at the time of the
conduct and words spoken by the relator before him, or in his
presence,
Page 74 U. S. 372
was not holding the Supreme Court of the district, but was
holding a court distinct from the Supreme Court, that they
possessed any power or jurisdiction over the subject of this
contempt as complained of, otherwise the case would present the
anomalous proceeding of one court's taking cognizance of an alleged
contempt committed before and against another court which possessed
ample powers itself to take care of its own dignity and punish the
offender. Under such circumstances and in this posture of the case,
it is plain that no authority or power existed in the Supreme Court
to punish for the contempt thus committed, even without reference
to the act of Congress of 1831, [
Footnote 6] which in express terms restricts the power,
except for "misbehavior in the presence of said courts, or so near
thereto as to obstruct the administration of justice."
Another ground relied on in the return for disbarring the
relator is that his conduct was not merely a contempt of the
authority of the Supreme Court, but was also gross misbehavior in
his office as an attorney generally, and that for this reason also,
his offense was cognizable by the court in general term, and
punishable irrespective of the doctrine of contempts. The judges
admit that the rule to show cause ordered against him at the
general term ignored the order made by Judge Fisher disbarring the
relator, and called upon him to answer simply for the act and
conduct specified as for a contempt; yet they insist that after the
return of the relator to the rule in answering the contempt, they
had a right, in considering the answer, if any other offense
appeared therein cognizable by the court, it was competent to take
notice of it, and inflict punishment accordingly.
We cannot assent to this view. It assumes the broad proposition
that the attorney may be called upon to answer an offense
specified, and, when the answer comes in, without any further
notice or opportunity of defense or explanation, punish him for
another and distinct offense. Certainly no argument can be
necessary to refute such a proposition.
Page 74 U. S. 373
It violates the commonest and most familiar principles of
criminal jurisprudence. It is true, where a contempt is committed
in the presence of the court, no other notice is usually necessary;
but a proceeding to punish an attorney generally for misbehavior in
his office or for any particular instance of misbehavior stands on
very different ground. The rule to show cause is in the record.
After reciting the offensive language and conduct complained of
(all of which occurred before Judge Fisher), it concludes in these
words:
"And said conduct and language requiring, in our opinion,
investigation by this Court, it is therefore ordered that said
Joseph H. Bradley show cause, on or before the fourth day of
November next, why he should not be punished for contempt of this
court by reason of said offensive conduct and language towards one
of its members and relating to the official acts of the said
justice."
It will be seen that the offense charged against the relator and
for which he was called upon to answer was direct and specific, one
well known to the law and the proceedings of courts -- a contempt
of the Supreme Court. And the offense being thus specified, he was
fully advised of the matters against which he was called upon to
defend, and enabled to prepare his defense accordingly. That the
relator so understood the charge is apparent from his answer, in
which he expresses his satisfaction at the opportunity afforded him
to present to the court his account of the facts involved in the
case, and "to purge himself from any intentional disrespect,
contumely, or contempt towards the court, or any member thereof, in
the transactions referred to."
The order entered on the minutes of the court, after the answer
to the rule to show cause, inflicting the punishment, confirms this
view. It is found in the record, and is headed as follows:
"
In the matter of Joseph H. Bradley, Sr. -- Contempt of
court"
"Mr. Bradley having filed his answer to the rule of court served
on him, and having been heard at the bar in support of his answer,
it is by the court ordered that for the causes
Page 74 U. S. 374
set forth in said rule, the name of Mr. Bradley be stricken from
the roll of attorneys, solicitors &c., authorized to practice
in this court."
The order or judgment seems to be in strict conformity to the
offense charged in the rule to show cause -- namely for contempt of
court.
We do not doubt the power of the court to punish attorneys as
officers of the same for misbehavior in the practice of the
profession. This power has been recognized and enforced ever since
the organization of courts and the admission of attorneys to
practice therein. If guilty of fraud against their clients or of
stirring up litigation by corrupt devices or using the forms of law
to further the ends of injustice -- in fine, for the commission of
any other act of official or personal dishonesty and oppression --
they become subject to the summary jurisdiction of the court.
Indeed, in every instance where an attorney is charged by affidavit
with fraud or malpractice in his profession contrary to the
principles of justice and common honesty, the court, on motion,
will order him to appear and answer, and deal with him according as
the facts may appear in the case. But this is a distinct head of
proceeding from that of contempt of court or of the members thereof
committed in open court or in immediate view and presence, tending
to interrupt its proceedings or to impair the respect due to its
authority. This distinction is recognized in the act of 1831,
already referred to, which, after providing for personal contempt
in presence of the court, authorizes attachments to issue, and
summary punishment to be inflicted, for "the misbehavior of the
officers of said courts in their official transactions."
Without pursuing this branch of the case further, our conclusion
is:
First. That the judges of the court below exceeded their
authority in punishing the relator for a contempt of that court on
account of contemptuous conduct and language before the Criminal
Court of the District, or in the presence of the judge of the
same.
Page 74 U. S. 375
Second. That they possessed no power to punish him upon an
ex parte proceeding, without notice or opportunity of
defense or explanation for misbehavior, or for any particular
instance of the same generally in his office as attorney of the
court, as claimed in the words of the return, "irrespective of the
doctrine of contempts."
The only remaining question is whether or not a writ of mandamus
from this Court is the appropriate remedy for the wrong complained
of. This question has already been answered by Chief Justice
Marshall, who delivered the opinion of the Court in
Ex Parte
Crane. [
Footnote 7] That
was an application for a mandamus to the Circuit Court of the
United States for the Southern District of New York commanding the
court to review the settlement of several bills of exceptions. The
learned Chief Justice observes:
"A doubt has been suggested respecting the power of the court to
issue the writ. The question was not discussed at the bar, but has
been considered by the judges. It is proper,"
he observes, "that it should be settled, and the opinion of the
court announced. We have determined that the power exists." He then
refers to the definition and office of the writ as known to the
common law in England, and to the language of Blackstone in
speaking of it, as follows:
"That it issues to the judges of any inferior court commanding
them to do justice, according to the powers of their office,
whenever the same is delayed. For it is the peculiar business of
the Court of King's Bench to superintend all other inferior
tribunals, and therein to enforce the due exercise of those
judicial or ministerial powers with which the Crown or the
legislature have invested them, and this not only by restraining
their excesses, but also by quickening their negligence
and obviating the denial of justice."
The Chief Justice then refers to the 13th section of the
judicial act, which enacts that the Supreme Court shall have power
to issue writs of prohibition to the district courts when
proceeding
Page 74 U. S. 376
as courts of admiralty and maritime jurisdiction, and writs of
mandamus, in cases warranted by the principles and usages of law,
to any courts appointed or persons holding offices under the
authority of the United States. "A mandamus to an officer," he
observes,
"is held to be the exercise of original jurisdiction; but a
mandamus to an inferior court of the United States is in the nature
of appellate jurisdiction."
Two of the judges dissented, and one of them, Mr. Justice
Baldwin, delivered an elaborate opinion adverse to the decision in
which every objection to the jurisdiction is very forcibly stated.
Since this decision, the question has been regarded at rest, as
will be seen from many cases in our reports, to some of which we
have referred. [
Footnote 8]
This writ is applicable only in the supervision of the
proceedings of inferior courts in cases where there is a legal
right without any existing legal remedy. It is upon this ground
that the remedy has been applied from an early day -- indeed since
the organization of courts and the admission of attorneys to
practice therein down to the present time -- to correct the abuses
of the inferior courts in summary proceedings against their
officers, and especially against the attorneys and counselors of
the courts. The order disbarring them or subjecting them to fine or
imprisonment is not reviewable by writ of error, it not being a
judgment in the sense of the law for which this writ will lie.
Without, therefore, the use of the writ of mandamus, however
flagrant the wrong committed against these officers, they would be
destitute of any redress. The attorney or counselor, disbarred from
caprice, prejudice, or passion, and thus suddenly deprived of the
only means of an honorable support of himself and family, upon the
contrary doctrine contended for, would be utterly remediless.
It is true that this remedy, even, when liberally expounded,
affords a far less effectual security to the occupation of
attorney
Page 74 U. S. 377
than is extended to that of every other class in the community.
For we agree that this writ does not lie to control the judicial
discretion of the judge or court, and hence where the act
complained of rested in the exercise of this discretion, the remedy
fails.
But this discretion is not unlimited, for if it be exercised
with manifest injustice, the Court of King's Bench will command its
due exercise. [
Footnote 9] It
must be a sound discretion, and according to law. As said by Chief
Justice Taney in
Ex Parte Secombe, [
Footnote 10]
"The power, however, is not an arbitrary and despotic one, to be
exercised at the pleasure of the court or from passion, prejudice,
or personal hostility."
And by Chief Justice Marshall, in
Ex Parte Burr:
[
Footnote 11]
"The court is not inclined to interpose unless it were in a case
where the conduct of the circuit or district court was irregular or
was flagrantly improper."
We are not concerned, however, to examine in the present case
how far this Court would inquire into any irregularities or
excesses of the court below in the exercise of its discretion in
making the order against the relator, as our decision is not at all
dependent upon that question. Whatever views may be entertained
concerning it, they are wholly immaterial and unimportant here. The
ground of our decision upon this branch of the case is that the
court below had no jurisdiction to disbar the relator for a
contempt committed before another court. The contrary must be
maintained before this order can be upheld and the writ of mandamus
denied. No amount of judicial discretion of a court can supply a
defect or want of jurisdiction in the case. The subject matter is
not before it; the proceeding is
coram non judice and
void. Now this want of jurisdiction of the inferior court in a
summary proceeding to remove an officer of the court or disbar an
attorney or counselor is one of the specific cases in which this
writ is the appropriate remedy. We have already seen from the
definition and office of it that it is issued to the inferior
courts
"to enforce the due exercise of those judicial
Page 74 U. S. 378
or ministerial powers with which the Crown or legislature have
invested them, and this not only by restraining their excesses, but
also by quickening their negligence and obviating their denial of
justice. [
Footnote 12]"
The same principle is also found stated with more fullness in
Bacon's Abridgment, title "Mandamus," [
Footnote 13]
"to restrain them (inferior courts) within their bounds, and
compel them to execute their jurisdiction, whether such
jurisdiction arises by charter &c., being in
subsidium
justiciae. [
Footnote
14]"
The same principle is also stated by Chief Justice Marshall in
Ex Parte Burr. "There is then," he observes,
"no irregularity in the mode of proceeding which would justify
the interposition of this Court. It could only interpose on the
ground that the circuit court had clearly exceeded its powers, or,
had decided erroneously on the testimony."
The case of
Burr was malpractice and stirring up
litigation, to the disturbance and oppression of the community. The
jurisdiction was unquestionable. So in
Ex Parte Secombe,
Chief Justice Taney, after showing that the question was one of
judicial discretion, observes,
"We are not aware of any case where a mandamus has issued to an
inferior tribunal commanding it to reverse or amend its decision
when the decision was in its nature a judicial act and within the
scope of its jurisdiction and discretion."
The case of
Secombe was for a contempt in open court,
and the jurisdiction undoubted. So was the case of
Tillinghast
v. Conkling, referred to by the Chief Justice in his opinion.
This writ has been issued in numerous cases by the King's Bench in
England to inferior courts to restore attorneys wrongfully removed.
The cases are collected by Mr. Tapping. [
Footnote 15] One of them was the case of an attorney
suspended from practicing in the courts of the county palatine of
Chester. The reason given for issuing this writ is that the office
is of
Page 74 U. S. 379
public concern, and regards the administration of justice, and
because there is no other remedy. [
Footnote 16]
Cases are found also in many of the courts of the states. Among
the more recent are three cases in California, [
Footnote 17] in New York, [
Footnote 18] in Pennsylvania, Virginia, and
Alabama. In several of the cases the remedy failed, as in
Ex
Parte Burr, Secombe, and
Tillinghast, the Court
having held in the cases that the questions involved were of
judicial discretion. But the proceeding is admitted to be the
recognized remedy when the case is outside of the exercise of this
discretion, and is one of irregularity, or against law, or of
flagrant injustice, or without jurisdiction.
It will be seen that this opinion is wholly irrespective of the
merits of this unhappy controversy between the relator and Judge
Fisher, as the view we have taken of the case does not in any
respect involve this question. We can only regret the controversy,
as between gentlemen of the highest respectability and honor and
express the hope that reflection, forbearance, and the generous
impulses that eminently belong to the members of their profession
may lead to their natural fruits -- reconciliation and mutual and
fraternal regard.
Our conclusion is that
A peremptory writ of mandamus must issue.
[
Footnote 1]
2 Stat. at Large 105.
[
Footnote 2]
Ib., 166.
[
Footnote 3]
5
id. 306.
[
Footnote 4]
Ib., 320.
[
Footnote 5]
12 Stat. at Large 762.
[
Footnote 6]
§ 1.
[
Footnote 7]
30 U. S. 5 Pet.
190
[
Footnote 8]
Ex Parte
Bradstreet, 7 Pet. 634;
Insurance
Company v. Wilson's Heirs, 8 Pet. 291;
Stafford v. Union
Bank, 17 How. 275;
United
States v. Gomez, 3 Wall. 753.
[
Footnote 9]
Tapping on Mandamus 13-14.
[
Footnote 10]
60 U. S. 19 How.
13.
[
Footnote 11]
22 U. S. 9
Wheat. 530.
[
Footnote 12]
3 Blackstone's Com. 111.
[
Footnote 13]
Letter D., p. 273.
[
Footnote 14]
See also Bacon, letter E., p. 278; and Tapping on
Mandamus, p. 105, and the cases there cited.
[
Footnote 15]
On Mandamus 44.
[
Footnote 16]
White's Case, 6 Modern 18, per Holt;
Leigh's
Case, 3
id. 335;
S.C., Carthew, 169-170.
[
Footnote 17]
People v. Turner, 1 Cal, 143, 188, 190.
[
Footnote 18]
People v. Justices, 1 Johnson's Cases 181.
MR. JUSTICE MILLER, dissenting.
I am of opinion that this Court has no jurisdiction of the case
in which it has just ordered the writ of mandamus to issue.
There are in the reports of our decisions three applications
before this for the writ of mandamus to be issued by this Court to
restore attorneys to places at the bar from which they had been
expelled by federal courts. The first of these is
Page 74 U. S. 380
the
Case of Burr. [
Footnote
2/1] The opinion delivered by Chief Justice Marshall expresses
great doubt on the part of the Court as to its right to interfere,
and resting mainly on that doubt, and partly on the fact that the
exclusion from practice was temporary, and would soon expire, the
application was refused.
In the other two cases, namely
Tillinghast v. Conkling
and
Ex Parte Secombe, the application was denied, and the
denial placed explicitly on the ground that this Court has no power
to revise the decisions of the inferior courts on this subject by
writ of mandamus. [
Footnote
2/2]
In delivering the opinion of the Court in the latter case, Chief
Justice Taney said that
"in the case of
Tillinghast v. Conkling, which came
before this Court at the January Term 1827, a similar motion was
overruled. The case is not reported, but a brief written opinion
remains in the files of the Court, in which the court says that the
motion is overruled upon the ground that it had not jurisdiction of
the case."
In the principal case, the Court said:
"It is not necessary to inquire whether this decision of the
territorial court [disbarring Secombe] can be revised here in any
other form of proceeding. The Court is of opinion that he is not
entitled to a remedy by mandamus. . . . It cannot be reviewed or
reversed in this form of proceeding, however erroneous it may be,
or supposed to be. And we are not aware of any case where a
mandamus was issued to an inferior tribunal, commanding it to
reverse or annul its decision, where the decision was in its nature
judicial, and within the scope of its jurisdiction and
discretion."
The attempt to distinguish the case now under consideration from
those just cited, on the ground that in the present case the
Supreme Court of the District of Columbia was acting without
jurisdiction, is in my judgment equally without foundation in the
fact asserted, and in the law of the case if the fact existed.
1. That court had jurisdiction of the person of Mr. Bradley,
because he was a resident of the District of Columbia, and
Page 74 U. S. 381
because he received notice of the proceeding, and submitted
himself to the court by depending on the merits.
2. It had jurisdiction of the offense charged, namely, a
contempt of the court whose judgment we are reviewing. I say this
advisedly, because the notice which called upon him to
answer charged him in distinct terms with a contempt of the Supreme
Court of the District, though much of the argument of counsel goes
upon the hypothesis that the offense for which he was disbarred was
an offense against the Criminal Court, and not the Supreme
Court.
3. That court had undoubted authority to punish contempt by
expelling the guilty party from its bar.
If the court had jurisdiction of the party and of the offense
charged, and had a right to punish such offense by the judgment
which was rendered in this case, what element of jurisdiction is
wanting?
But if we concede that the Supreme Court of the District
exceeded its authority in this case, I know of no act of Congress,
nor any principle established by previous decisions of this Court,
which authorizes us to interfere by writ of mandamus. The argument
in favor of such authority is derived from the analogy supposed to
exist between the present case and others in which the court has
held that the writ may be issued in aid of its appellate
jurisdiction, as
Ex Parte Crane, [
Footnote 2/3]
Ex Parte Hoyt, [
Footnote 2/4] and by the practice in the Court of
King's Bench, in England, and in some of our state courts.
In regard to the practice in the King's Bench and in the state
courts, I shall attempt to show presently that this Court possesses
no such general supervisory power over inferior federal courts as
belongs to the King's Bench, and as belongs generally to the
appellate tribunals of the states. The appellate power of this
Court is strictly limited to cases provided for by act of
Congress.
The case of
Crane [
Footnote
2/5] was one which this Court had an undoubted right to review.
It was alleged that this right was obstructed by the refusal of the
judge of the circuit court
Page 74 U. S. 382
to sign a bill of exceptions, and the court held that in such a
case he might be compelled, by the writ of mandamus, to sign a
truthful and proper bill of exceptions.
It was not necessary to cite this case and others, in which the
court
refused to grant the writ of mandamus, to show that
under proper circumstances it may issue. In
Ex Parte Milwaukee
Railroad Company, [
Footnote
2/6] the court ordered a writ of mandamus to issue to the
judges of the circuit court because, in the language of the
court,
"the petitioner has presented a case calling for the exercise of
the supervisory power of this Court over the circuit court, which
can only be made effectual by a writ of mandamus."
And this is the true doctrine on which the use of the writ is
founded, and the sound construction of the 13th section of the
Judiciary Act.
The case of
Hoyt, [
Footnote
2/7] cited by counsel for petitioner, is in strong confirmation
of this. Referring to the language of that section, the Court
says,
"The present application is not warranted by any such principles
and usages of law. It is neither more nor less than an application
for an order to reverse the solemn judgment of the district judge
in a matter clearly within the jurisdiction of the court, and to
substitute another judgment in its stead."
Precisely what is asked in the present case.
The case of
Tobias Watkins [
Footnote 2/8] is very analogous to the one before us,
and in construing the power of this Court in regard to the writ of
habeas corpus, decides principles which appear to me to be in
direct conflict with the views advanced by the court in the opinion
just read. In that case, Watkins had been indicted, tried, and
sentenced to imprisonment by the Circuit Court of the District of
Columbia. An application was made to this Court for a writ of
habeas corpus on the ground that the indictment charged no offense
of which that court had cognizance. But, conceding this to be true
and answering the case made by the petition, the Court, by
Marshall, C.J., asks: "With what propriety can this Court look
Page 74 U. S. 383
into the indictment? We have no power," he says,
"to examine the proceedings on a writ of error, and it would be
strange if, under color of a writ to liberate an individual from
unlawful imprisonment, we could substantially reverse a judgment,
which the law has placed beyond our reach. An imprisonment under a
judgment cannot be unlawful unless that judgment be an absolute
nullity, and it cannot be a nullity if the court has general
jurisdiction of the subject, although it be erroneous. . . . The
law trusts that court with the whole subject, and has not confided
to this Court any power of revising its decisions. We cannot usurp
that power by the instrumentality of the writ of habeas
corpus."
And finally, after examining the cases in which this Court had
previously issued the writ of habeas corpus, he says that they
are
"no authority for inquiring into the judgments of a court of
general criminal jurisdiction and regarding them as nullities if,
in our opinion, the court has misconstrued the law, and has
pronounced an offense to be punishable criminally, which we may
think is not."
The case made by Mr. Bradley is much weaker than the case of
Watkins, because, in the latter, the court was only asked to
determine, on the face of the indictment whether the offense
charged was cognizable by the circuit court. Here the charge of a
contempt, of which the court below had jurisdiction, is clear, but
we are told that, on looking into the testimony, we shall find that
the petitioner was not guilty of a contempt of that court, but of
another court. Judge Marshall and the Court over which he presided
refused to look beyond the judgment, even at the indictment. Here,
the Court looks beyond the judgment, and beyond the notice which
charges the offense, and inquires into the evidence on which the
party is convicted, and because that is, in the opinion of this
Court, insufficient, it is held that the court which tried the case
had no jurisdiction. This is to me a new and dangerous test of
jurisdiction.
But with all due respect to my brethren of the majority of the
Court, it seems to me that their judgment in this case is not only
unsupported by the cases relied on, and in conflict
Page 74 U. S. 384
with the cases of
Tillinghast and
Secombe,
decided by this Court directly on the same point, but it is at war
with the settled doctrine of the Court on the general subject of
its appellate jurisdiction.
The Constitution [
Footnote 2/9]
declares that the appellate power of this Court is subject to such
exceptions and is to be exercised under such regulations as
Congress shall make.
Chief Justice Ellsworth, construing this clause of the
Constitution in the case of
Wiscart v. Dauchy, [
Footnote 2/10] said:
"If Congress has provided no rule to regulate our proceedings,
we cannot exercise an appellate jurisdiction, and if the rule is
provided, we cannot depart from it."
And the Court afterwards, by Chief Justice Marshall, said in
substance that if Congress, in establishing the Supreme Court, had
not described its jurisdiction, its general power in reviewing the
decisions of other federal courts could not be denied. But the fact
that Congress had described its jurisdiction by affirmative
language must be understood as a regulation under the Constitution,
prohibiting the exercise of other powers than those described.
[
Footnote 2/11]
In
United States v. Nourse, [
Footnote 2/12] a case of summary proceedings before the
district judge under the revenue law which provided that an appeal
might be allowed to claimant by a judge of the Supreme Court, it
was said that "as this special mode is pointed out by which an
appeal may be taken, it negatives the right of an appeal in any
other manner," and it was further said that the United States had
no right of appeal, because none was given by the act which
authorized the proceeding.
And finally, in the case of
Barry v. Mercein, [
Footnote 2/13] this Court, by Chief
Justice Taney, declared emphatically that
"by the Constitution of the United States the Supreme Court
possesses no appellate power in any case unless conferred upon it
by act of Congress; nor can it be exercised in any other
Page 74 U. S. 385
mode of proceeding than that which the law prescribes."
This case and the case of
United States v. Moore were
decided in direct reference to the jurisdiction of this Court over
those of the District of Columbia, and in the latter, Judge
Marshall uses this unmistakable language: "This Court therefore
will only review those judgments of the Circuit Court of Columbia a
power to reexamine which is expressly given by law."
Let us see, then, what regulations Congress has made in regard
to our jurisdiction over the courts of the District of
Columbia.
The Supreme Court of the District, whose judgment is attempted
to be brought into review here, was established by the Act of March
3, 1863. The only clause looking to a revision of the decisions of
that court is section 11, which enacts
"That any final judgment, order, or decree of said court may be
reexamined and reversed or affirmed in the Supreme Court of the
United States upon writ of error or appeal in the same cases and in
like manner as is now provided by law in reference to final
judgments, orders, and decrees of the Circuit Court of the United
States for the District of Columbia."
The act on which our jurisdiction over this circuit court
depended is that of February 27, 1801. The 8th section of that act
provides that
"Any final judgment, order, or decree of said circuit court
wherein the matter in dispute shall exceed the value of one hundred
dollars [now one thousand] may be reexamined and reversed or
affirmed in the Supreme Court of the United States by writ of error
or appeal."
Here, then, is no provision for any other modes of review than
by appeal and by writ of error; but there is a limitation of the
use of these modes to cases in which the matter in dispute shall
exceed one thousand dollars. Where, then, is there any authority
for a review by writ of mandamus? And where is there any regulation
authorizing a review of this case by any mode whatever?
For the counsel of petitioner in this case does not claim that
the matter in dispute exceeds a thousand dollars or has
Page 74 U. S. 386
any moneyed value. Such a claim would be fatal to the relief he
asks, because it would show that it is a proper case for a writ of
error, and therefore a mandamus will not lie.
We have repeatedly held that the writ of mandamus cannot be made
to perform the functions of a writ of error.
In the recent case of
Commissioner v. Whiteley,
[
Footnote 2/14] the following
language was used without dissent:
"The principles of the law relating to the remedy by mandamus
are well settled. It lies when there is a refusal to perform a
ministerial act involving no exercise of judgment or discretion. .
. . It lies when the exercise of judgment and discretion are
involved, and the officer refuses to decide,
provided that if
he decided, the aggrieved party could have his decision reviewed by
another tribunal. . . . It is applicable only in these two
classes of cases. It cannot be made to perform the functions of a
writ of error."
And to the same purpose are
Ex Parte Hoyt [
Footnote 2/15] and
Ex Parte
Taylor. [
Footnote 2/16]
MR. JUSTICE SWAYNE, not having heard the argument, took no part
in the judgment.
[
Footnote 2/1]
22 U. S. 9 Wheat.
529.
[
Footnote 2/2]
60 U. S. 19 How.
9.
[
Footnote 2/3]
30 U. S. 5 Pet.
193.
[
Footnote 2/4]
38 U. S. 13
Pet. 291.
[
Footnote 2/5]
30 U. S. 5 Pet.
190.
[
Footnote 2/6]
72 U. S. 5 Wall.
825.
[
Footnote 2/7]
38 U. S. 13
Pet. 291.
[
Footnote 2/8]
28 U. S. 3 Pet.
193.
[
Footnote 2/9]
Art. III, § 2.
[
Footnote 2/10]
3 U. S. 3 Dall.
321.
[
Footnote 2/11]
United States v.
More, 3 Cranch 159;
Durousseau
v. United States, 6 Cranch 307.
[
Footnote 2/12]
31 U. S. 6 Pet.
470.
[
Footnote 2/13]
46 U. S. 5 How.
103.
[
Footnote 2/14]
71 U. S. 4
Wall. 524.
[
Footnote 2/15]
38 U. S. 13 Pet.
279.
[
Footnote 2/16]
55 U. S. 14 How.
3.