1. An order of the Criminal Court of the District of Columbia,
made in 1867, striking the name of an attorney from its roll did
not remove the attorney from the bar of the Supreme Court of the
District, the Criminal Court being at that time a separate and
independent court, and in an action by the attorney against the
judge of the Criminal Court, that order was inadmissible to show a
removal by order of the defendant, or by order of the court held by
him, from the Supreme Court, notwithstanding that an act of
Congress, passed in 1870, changed the independent character of the
Criminal Court and declared that its judgments, decrees, and orders
should be deemed the judgments, decrees, and orders of the Supreme
Court of the District. The act of Congress, in enlarging the
operation of the order, did not alter its original character.
Page 80 U. S. 336
2. Judges of courts of record of superior or general
jurisdiction are not liable to civil actions for their judicial
acts, even when such acts are in excess of their jurisdiction, and
are alleged to have been done maliciously or corruptly. A
distinction as to their liability made between acts done by them in
excess of their jurisdiction and acts done by them in the clear
absence of all jurisdiction over the subject matter.
3. The power to remove attorneys from the bar is possessed by
all courts which have authority to admit attorneys to practice; but
except where the matters constituting the grounds of its action
occur in open court in the presence of its judges, the power of the
court should not be exercised without notice to the offending party
of the grounds of complaint against him and affording him ample
opportunity of explanation and defense.
4. The obligation which attorneys assume when they are admitted
to the bar is not simply to be obedient to the Constitution and
laws, but to maintain at all times the respect due to courts of
justice and judicial officers. This obligation is not discharged by
merely observing the rules of courteous demeanor in open court, but
includes abstaining out of court from insulting language and
offensive conduct towards the judges personally for their judicial
acts. A threat of personal chastisement, made by an attorney to a
judge out of court for his conduct during the trial of a cause
pending, is good ground for striking the name of the attorney from
the rolls of attorneys practicing in the court. Such an order is a
judicial act for which the judge is not liable to the attorney in a
civil action.
This was all action brought by Joseph H. Bradley, who was, in
1867, an attorney at law practicing in the Supreme Court of the
District of Columbia, against George P. Fisher, who was then one of
the justices of that court, to recover damages alleged to have been
sustained by the plaintiff, "by reason of the willful, malicious,
oppressive, and tyrannical acts and conduct" of the defendant,
whereby the plaintiff was deprived of his right to practice as an
attorney in that court. The case was thus:
On the 10th of June, 1867, the trial of John H. Suratt for the
murder of the late President Lincoln was begun in the Criminal
Court of the District and continued until the 10th of August, when
the jury, failing to agree on a verdict, was discharged. The
defendant was the presiding judge in the court during the progress
of the trial, and until its termination,
Page 80 U. S. 337
and the plaintiff was one of the attorneys who defended the
prisoner. Immediately on the discharge of the jury, the court thus
held by the defendant made the following order, which with its
recitals was entered of record:
"On the 2d day of July last, during the progress of the trial of
John H. Suratt for the murder of Abraham Lincoln, immediately after
the court had taken a recess until the following morning, as the
presiding justice was descending from the bench, Joseph H. Bradley,
Esq., accosted him in a rude and insulting manner, charging the
judge with having offered him (Mr. Bradley) a series of insults
from the bench from the commencement of the trial. The judge
disclaimed any intention of passing any insult whatever, and
assured Mr. Bradley that he entertained for him no other feelings
than those of respect. Mr. Bradley, so far from accepting this
explanation or disclaimer, threatened the judge with personal
chastisement. No court can administer justice or live if its judges
are to be threatened with personal chastisement on all occasions
whenever the irascibility of counsel may be excited by imaginary
insult. The offense of Mr. Bradley is one which even his years will
not palliate. It cannot be overlooked or go unpunished."
"It is therefore ordered that his name be stricken from the roll
of attorneys practicing in this Court."
"GEORGE P. FISHER"
"Justice of the Supreme Court, D.C."
The present suit was founded upon this order, which was treated
in the declaration as an order striking the name of the plaintiff
from the roll of attorneys of the
Supreme Court of the
District, and not as an order merely striking his name from
the roll of attorneys practicing in the
Criminal Court of the
District. The declaration had two counts, and was entitled and
filed in the Supreme Court of the District.
The first count alleged that the defendant caused the order
(which was set out at length) to be recorded "on the minutes of the
Criminal Court,
being one of the branches of the said Supreme
Court;" that the several statements, contained in the order
were untrue, and were specifically denied; and that the defendant
"falsely, fraudulently, corruptly, and maliciously
Page 80 U. S. 338
intended thereby to give a color of jurisdiction" for making the
order that the name of the plaintiff "
be stricken from the roll
of attorneys practicing in this Court," whereby the plaintiff
had been injured, and claimed damages, $20,000.
The
second count alleged that the defendant "wantonly,
corruptly, arbitrarily, and oppressively intending to remove the
plaintiff" from his office as an attorney at law, "caused to be
entered
on the records of the Supreme Court of the District of
Columbia, Criminal Court, March Term 1867," the order in
question, which was set forth at length,
"the same being an
order removing the plaintiff from the office of an attorney at law
in the said Supreme Court of the District of Columbia,"
whereby he was greatly disturbed in the enjoyment of his office and
prevented from having the use and benefit thereof, in so full and
ample a manner as he otherwise might and would have had.
The declaration also averred that the order was made without
notice of any kind to the plaintiff, and was summary, that there
was no complaint made by him to the justice, and that he did not
accost him while the court was in session, nor immediately on the
court's taking a recess and as the presiding judge was descending
from the bench, as was stated in the order, nor did he, the
plaintiff, at the time and place mentioned in the order, address
the justice at all after the court had taken the recess, until the
judge had passed some time in a private room, and had left the same
and gone out of the courthouse, and the great body of auditors,
jurors, witnesses, clerks, and officers of the court, and the jury
empanelled, and the prisoner on trial had left the courthouse, and
so the declaration proceeded to say, "the said judge
willfully,
maliciously, corruptly, and unlawfully fabricated the said order to
give color and pretense to his jurisdiction in the
premises."
By reason of which unlawful, wrongful, unjust, and oppressive
acts of the defendant, the plaintiff alleged that he had been
deprived of emoluments, and had lost sums of money which would
otherwise have accrued to him from
Page 80 U. S. 339
the enjoyment of his office and from his practice as an attorney
in the courts of the county and district &c., and therefore he
claimed $20,000 damages.
Pleas: 1st, the general issue, "not guilty;" and 2d, a
special plea, that before and at the time of the alleged commission
&c., the defendant was one of the justices of the Supreme Court
of the District of Columbia,
and, as such justice, was
regularly and lawfully holding, by appointment of said Supreme
Court of the District of Columbia, in general term, at the
City of Washington, in said District, a court of record, to-wit,
the Criminal Court of said District, created by authority of the
United States of America, and having general jurisdiction for the
trial of crimes and offenses arising within said District, and that
the said supposed trespass consisted of an order and decree of said
Criminal Court, made by said defendant in the lawful exercise and
performance of his authority and duty, as the presiding justice of
said Criminal Court, for official misconduct and misbehavior of
said plaintiff (he being one of the attorneys of said Criminal
Court), occurring in the presence of the said defendant as the
justice of said Criminal Court holding the same as aforesaid and
not otherwise, as appears from the record of said Criminal Court
and the order or decree of the defendant so made as aforesaid.
Wherefore he prayed judgment, if the plaintiff ought to have or
maintain his aforesaid action against him &c.
The defendant joined issue on this plea.
On the trial the plaintiff produced the order entered by the
Criminal Court, which was admitted to be in the handwriting of the
defendant, and offered to read it in evidence, but upon objection
of the defendant's counsel to its admissibility, it was excluded,
and the plaintiff excepted. Subsequently the plaintiff read in
evidence the order, as entered, from the records of the Criminal
Court, and offered to show that the order was prepared, written,
and published by the defendant with express malice against the
plaintiff, to defame and injure him, and without the defendant
having any jurisdiction to make the order, and that there was no
altercation
Page 80 U. S. 340
on the 2d July, 1867, between him and the judge, and that no
words passed between them, and that they were not near each other
when the Criminal Court took its recess, until the next day or
immediately thereafter, and as the presiding justice thereof was
descending from the bench; but upon objection of the defendant's
counsel, the proof was excluded, and the plaintiff excepted.
The plaintiff also offered to prove that the only interview
between him and the judge, which occurred on the 2d of July, 1867,
after the Criminal Court had taken a recess, began after the court
had adjourned, and the judge had left the court room and the
building and returned to the court room, and in that interview, he
did not address the judge in a rude and insulting manner; that he
did not charge him with having offered him, the plaintiff, a series
of insults from the bench from the commencement of the trial; that
the judge did not disclaim any intention of passing any insult
whatever, nor assure the plaintiff that he entertained for him no
other feelings but those of respect; that the plaintiff did not
threaten the judge with personal chastisement, but to the contrary
thereof, the said judge was from the opening of the interview
violent, abusive, threatening, and quarrelsome; but upon objection
the proof was excluded, and the plaintiff excepted.
The plaintiff thereupon asked a witness to state what passed
between the plaintiff and defendant on the said 2d of July, 1867,
the time when the parties met, and whether it was before the
adjournment of the court on that day, or after it had adjourned,
and how long after it had adjourned, and to state all he knew
relating to that matter; the object of the evidence being to
contradict the recitals in the order, and show that the justice had
no jurisdiction in the premises, and had acted with malice and
corruptly. But upon objection the evidence was excluded, and the
plaintiff excepted. And the court ruled that, on the face of the
record given in evidence, the defendant had jurisdiction and
discretion to make the order, and he could not be held responsible
in this private action for so doing, and instructed the jury
that
Page 80 U. S. 341
the plaintiff was not entitled to recover. The jury accordingly
gave a verdict for the defendant, and judgment being entered
thereon, the plaintiff brought the case to this Court on a writ of
error.
To understand one point of the case the better, it may be
mentioned that in
Ex Parte Bradley, [
Footnote 1] this Court granted a peremptory
mandamus to the Supreme Court of the District to restore Mr.
Bradley to his office of attorney and counselor in that court, from
which in consequence of the matter with Judge Fisher in the
Criminal Court, he had been removed; this Court, that is to say the
Supreme Court of the United States, holding that the Criminal Court
of the District was, at the time the order in question was made, a
different and separate court from the Supreme Court of the District
of Columbia, as organized by the act of March 3, 1863.
It may also be stated that on the 21st of June, 1870, after the
decision just mentioned, Congress passed an act entitled, "An act
relating to the Supreme Court of the District of Columbia,"
[
Footnote 2] which declared
"That the several general terms and special terms of the circuit
courts, district courts, and criminal courts authorized by the act
approved March 3, 1863, entitled 'An act to reorganize the courts
in the District of Columbia, and for other purposes,' which have
been or may be held, shall be, and are declared to be severally,
terms of the Supreme Court of the District of Columbia; and the
judgments, decrees, sentences, orders, proceedings, and acts of
said general terms, special terms, circuit courts, district courts,
and criminal courts heretofore or hereafter rendered, made, or had,
shall be deemed judgments, decrees, sentences, orders, proceedings,
and acts of said Supreme Court."
It may be well also, as counsel in argument refer to it, to
state that an act of Congress of March 2, 1831, [
Footnote 3] enacted:
"That the power of the several courts of the United States to
issue attachments and
inflict summary punishments for contempt
of court, shall not be construed to extend to any cases
except
Page 80 U. S. 342
the misbehavior of any person or persons in the presence of the
said courts, or so near thereto as to obstruct the administration
of justice; the misbehavior of any of the officers of the said
courts in their official transactions, and the disobedience or
resistance by any officer of the said courts, party, juror,
witness, or any other person or persons, to any lawful writ,
process, order, rule, decree, or command of the said courts. "
Page 80 U. S. 344
MR. JUSTICE FIELD delivered the opinion of the Court.
In 1867, the plaintiff was a member of the bar of the Supreme
Court of the District of Columbia, and the defendant was one of the
justices of that court. In June of that year, the trial of one John
H. Suratt, for the murder of Abraham Lincoln, was commenced in the
Criminal Court of the District, and was continued until the tenth
of the following August, when the jury were discharged in
consequence of their inability to agree upon a verdict. The
defendant held that court, presiding at the trial of Suratt from
its commencement to its close, and the plaintiff was one of the
attorneys who defended the prisoner. Immediately upon the discharge
of the jury, the court, thus held by the defendant, directed an
order to be entered on its records striking the name of the
plaintiff from the roll of attorneys practicing in that court. The
order was accompanied by a recital that on the second of July
preceding, during the progress of the trial of Suratt, immediately
after the court had taken a recess for the day, as the presiding
judge was descending from the bench, he had been accosted in a rude
and insulting manner by the plaintiff, charging him with having
offered the plaintiff a series of insults from the bench from the
commencement of the trial; that the judge had then disclaimed any
intention of passing any insult whatever, and had assured the
plaintiff that he entertained for him no other feelings than those
of respect, but that the plaintiff, so far from accepting this
explanation, or disclaimer, had threatened the judge with personal
chastisement.
The plaintiff appears to have regarded this order of the
Criminal Court as an order disbarring him from the Supreme Court of
the District; and the whole theory of the
Page 80 U. S. 345
present action proceeds upon that hypothesis. The declaration in
one count describes the Criminal Court as one of the branches of
the Supreme Court, and in the other count represents the order of
the Criminal Court as an order removing the plaintiff from the
office of an attorney at law in the Supreme Court of the District.
And it is for the supposed removal from that court, and the assumed
damages consequent thereon, that the action is brought.
Yet the Criminal Court of the District was at that time a
separate and independent court, and as distinct from the Supreme
Court of the District as the circuit court is distinct from the
Supreme Court of the United States. Its distinct and independent
character was urged by the plaintiff, and successfully urged, in
this Court, as ground for relief against the subsequent action of
the Supreme Court of the District, based upon what had occurred in
the Criminal Court. And because of its distinct and independent
character, this Court held that the Supreme Court of the District
possessed no power to punish the plaintiff on account of
contemptuous conduct and language before the Criminal Court, or in
the presence of its judge. By this decision, which was rendered at
the December Term of 1868, [
Footnote 4] the groundwork of the present action of the
plaintiff is removed. The law which he successfully invoked, and
which protected him when he complained of the action of the Supreme
Court of the District, must now equally avail for the protection of
the defendant, when it is attempted to give to the Criminal Court a
position and power which were then denied. The order of the
Criminal Court, as it was then constituted, was not an order of the
Supreme Court of the District, nor of one of the branches of that
court. It did not, for we know that in law it could not, remove the
plaintiff from the office of an attorney of that court, nor affect
his right to practice therein.
This point is distinctly raised by the special plea of the
defendant, in which he sets up that at the time the order
Page 80 U. S. 346
complained of was made, he was regularly and lawfully holding
the Criminal Court of the District, a court of record, having
general jurisdiction for the trial of crimes and offenses arising
within the District, and that the order complained of was an order
of the Criminal Court, made by him in the lawful exercise and
performance of his authority and duty as its presiding justice, for
official misconduct of the plaintiff, as one of its attorneys, in
his presence; and upon this plea the plaintiff joined issue.
The court below, therefore, did not err in excluding the order
of removal as evidence in the cause, for the obvious reason that it
did not establish nor tend to establish the removal of the
plaintiff by any order of the defendant, or of the court held by
him, from the bar of the Supreme Court of the District. And the
refusal of the court below to admit evidence contradicting the
recitals in that order, could not be the ground of any just
exception, when the order itself was not pertinent to any issue
presented. Nor is this conclusion affected by the act of Congress
passed in June, 1870, nearly three years after the order of removal
was made, and nearly two years after the present action was
commenced, changing the independent character of the Criminal Court
and declaring that its judgments, decrees, and orders should be
deemed the judgments, decrees, and orders of the Supreme Court of
the District. [
Footnote 5] If
the order of removal acquired from this legislation a wider scope
and operation than it possessed when made, the defendant is not
responsible for it. The original act was not altered. It was still
an order disbarring the plaintiff only from the Criminal Court, and
any other consequences are attributable to the action of Congress,
and not to any action of the defendant.
But this is not all. The plea, as will be seen from our
statement of it, not only sets up that the order of which the
plaintiff complains, was an order of the Criminal Court, but that
it was made by the defendant in the lawful exercise and performance
of his authority and duty as its presiding
Page 80 U. S. 347
justice. In other words, it sets up that the order for the entry
of which the suit is brought, was a judicial act, done by the
defendants as the presiding justice of a court of general criminal
jurisdiction. If such were the character of the act, and the
jurisdiction of the court, the defendant cannot be subjected to
responsibility for it in a civil action, however erroneous the act
may have been, and however injurious in its consequences it may
have proved to the plaintiff. For it is a general principle of the
highest importance to the proper administration of justice that a
judicial officer, in exercising the authority vested in him, shall
be free to act upon his own convictions, without apprehension of
personal consequences to himself. Liability to answer to everyone
who might feel himself aggrieved by the action of the judge, would
be inconsistent with the possession of this freedom, and would
destroy that independence without which no judiciary can be either
respectable or useful. As observed by a distinguished English
judge, it would establish the weakness of judicial authority in a
degrading responsibility. [
Footnote
6]
The principle, therefore, which exempts judges of courts of
superior or general authority from liability in a civil action for
acts done by them in the exercise of their judicial functions,
obtains in all countries where there is any well ordered system of
jurisprudence. It has been the settled doctrine of the English
courts for many centuries, and has never been denied, that we are
aware of, in the courts of this country. It has, as Chancellor Kent
observes, "a deep root in the common law." [
Footnote 7]
Nor can this exemption of the judges from civil liability be
affected by the motives with which their judicial acts are
performed. The purity of their motives cannot in this way be the
subject of judicial inquiry. This was adjudged in the case of
Floyd and Barker, reported by Coke, in 1608, [
Footnote 8] where it was laid down that
the judges of the realm could not be drawn in question for any
supposed corruption impeaching
Page 80 U. S. 348
the verity of their records, except before the King himself, and
it was observed that if they were required to answer otherwise, it
would "tend to the scandal and subversion of all justice, and those
who are the most sincere, would not be free from continual
calumniations."
The truth of this latter observation is manifest to all persons
having much experience with judicial proceedings in the superior
courts. Controversies involving not merely great pecuniary
interests but the liberty and character of the parties, and
consequently exciting the deepest feelings, are being constantly
determined in those courts, in which there is great conflict in the
evidence and great doubt as to the law which should govern their
decision. It is this class of cases which impose upon the judge the
severest labor, and often create in his mind a painful sense of
responsibility. Yet it is precisely in this class of cases that the
losing party feels most keenly the decision against him and most
readily accepts anything but the soundness of the decision in
explanation of the action of the judge. Just in proportion to the
strength of his convictions of the correctness of his own view of
the case is he apt to complain of the judgment against him, and
from complaints of the judgment to pass to the ascription of
improper motives to the judge. When the controversy involves
questions affecting large amounts of property or relates to a
matter of general public concern, or touches the interests of
numerous parties, the disappointment occasioned by an adverse
decision, often finds vent in imputations of this character, and
from the imperfection of human nature this is hardly a subject of
wonder. If civil actions could be maintained in such cases against
the judge, because the losing party should see fit to allege in his
complaint that the acts of the judge were done with partiality, or
maliciously, or corruptly, the protection essential to judicial
independence would be entirely swept away. Few persons sufficiently
irritated to institute an action against a judge for his judicial
acts would hesitate to ascribe any character to the acts which
would be essential to the maintenance of the action.
Page 80 U. S. 349
If upon such allegations a judge could be compelled to answer in
a civil action for his judicial acts, not only would his office be
degraded and his usefulness destroyed, but he would be subjected
for his protection to the necessity of preserving a complete record
of all the evidence produced before him in every litigated case,
and of the authorities cited and arguments presented, in order that
he might be able to show to the judge before whom he might be
summoned by the losing party -- and that judge perhaps one of an
inferior jurisdiction -- that he had decided as he did with
judicial integrity; and the second judge would be subjected to a
similar burden, as he in his turn might also be held amenable by
the losing party.
Some just observations on this head by the late Chief Justice
Shaw, will be found in
Pratt v. Gardner, [
Footnote 9] and the point here was adjudged
in the recent case of
Fray v. Blackburn, [
Footnote 10] by the Queen's Bench of
England. One of the judges of that bench was sued for a judicial
act, and on demurrer one of the objections taken to the declaration
was that it was bad in not alleging malice. Judgment on the
demurrer having passed for the defendant, the plaintiff applied for
leave to amend his declaration by introducing an allegation of
malice and corruption; but Mr. Justice Compton replied:
"It is a principle of our law that no action will lie against a
judge of one of the superior courts for a judicial act, though it
be alleged to have been done maliciously and corruptly; therefore
the proposed allegation would not make the declaration good. The
public are deeply interested in this rule, which indeed exists for
their benefit and was established in order to secure the
independence of the judges and prevent them being harassed by
vexatious actions"
-- and the leave was refused. [
Footnote 11]
Page 80 U. S. 350
In this country, the judges of the superior courts of record are
only responsible to the people or the authorities constituted by
the people, from whom they receive their commissions, for the
manner in which they discharge the great trusts of their office. If
in the exercise of the powers with which they are clothed as
ministers of justice they act with partiality, or maliciously, or
corruptly, or arbitrarily, or oppressively, they may be called to
an account by impeachment and suspended or removed from office. In
some states, they may be thus suspended or removed without
impeachment, by a vote of the two houses of the legislature.
In the case of
Randall v. Brigham, [
Footnote 12] decided by this Court, at the
December Term of 1868, we had occasion to consider at some length
the liability of judicial officers to answer in a civil action for
their judicial acts. In that case the plaintiff
Page 80 U. S. 351
had been removed by the defendant, who was one of the justices
of the Superior Court of Massachusetts, from the bar of that state,
and the action was brought for such removal, which was alleged in
the declaration to have been made without lawful authority, and
wantonly, arbitrarily, and oppressively. In considering the
questions presented the court observed that it was a general
principle, applicable to all judicial officers, that they were not
liable to a civil action for any judicial act done by them within
their jurisdiction; that with reference to judges of limited and
inferior authority it had been held that they were protected only
when they acted within their jurisdiction; that if this were the
case with respect to them, no such limitation existed with respect
to judges of superior or general authority; that they were not
liable in civil actions for their judicial acts, even when such
acts were in excess of their jurisdiction, "unless, perhaps, when
the acts in excess of jurisdiction are done maliciously or
corruptly." The qualifying words were inserted upon the suggestion
that the previous language laid down the doctrine of judicial
exemption from liability to civil actions in terms broader than was
necessary for the case under consideration, and that if the
language remained unqualified it would require an explanation of
some apparently conflicting adjudications found in the reports.
They were not intended as an expression of opinion that in the
cases supposed such liability would exist, but to avoid the
expression of a contrary doctrine.
In the present case we have looked into the authorities and are
clear, from them, as well as from the principle on which any
exemption is maintained, that the qualifying words used were not
necessary to a correct statement of the law, and that judges of
courts of superior or general jurisdiction are not liable to civil
actions for their judicial acts, even when such acts are in excess
of their jurisdiction, and are alleged to have been done
maliciously or corruptly. A distinction must be here observed
between excess of jurisdiction and the clear absence of all
jurisdiction over the subject matter. Where there is clearly no
jurisdiction over
Page 80 U. S. 352
the subject matter any authority exercised is a usurped
authority, and for the exercise of such authority, when the want of
jurisdiction is known to the judge, no excuse is permissible. But
where jurisdiction over the subject matter is invested by law in
the judge, or in the court which he holds, the manner and extent in
which the jurisdiction shall be exercised are generally as much
questions for his determination as any other questions involved in
the case, although upon the correctness of his determination in
these particulars the validity of his judgments may depend. Thus,
if a probate court, invested only with authority over wills and the
settlement of estates of deceased persons, should proceed to try
parties for public offenses, jurisdiction over the subject of
offenses being entirely wanting in the court, and this being
necessarily known to its judge, his commission would afford no
protection to him in the exercise of the usurped authority. But if
on the other hand a judge of a criminal court, invested with
general criminal jurisdiction over offenses committed within a
certain district, should hold a particular act to be a public
offense, which is not by the law made an offense, and proceed to
the arrest and trial of a party charged with such act, or should
sentence a party convicted to a greater punishment than that
authorized by the law upon its proper construction, no personal
liability to civil action for such acts would attach to the judge,
although those acts would be in excess of his jurisdiction, or of
the jurisdiction of the court held by him, for these are
particulars for his judicial consideration, whenever his general
jurisdiction over the subject matter is invoked. Indeed some of the
most difficult and embarrassing questions which a judicial officer
is called upon to consider and determine relate to his
jurisdiction, or that of the court held by him, or the manner in
which the jurisdiction shall be exercised. And the same principle
of exemption from liability which obtains for errors committed in
the ordinary prosecution of a suit where there is jurisdiction of
both subject and person, applies in cases of this kind, and for the
same reasons.
The distinction here made between acts done in excess
Page 80 U. S. 353
of jurisdiction and acts where no jurisdiction whatever over the
subject matter exists, was taken by the Court of King's Bench, in
Ackerley v. Parkinson. [
Footnote 13] In that case an action was brought against
the vicar-general of the Bishop of Chester and his surrogate, who
held the consistorial and episcopal court of the bishop, for
excommunicating the plaintiff with the greater excommunication for
contumacy, in not taking upon himself the administration of an
intestate's effects, to whom the plaintiff was next of kin, the
citation issued to him being void, and having been so adjudged. The
question presented was, whether under these circumstances the
action would lie. The citation being void, the plaintiff had not
been legally brought before the court, and the subsequent
proceedings were set aside, on appeal, on that ground. Lord
Ellenborough observed that it was his opinion that the action was
not maintainable if the ecclesiastical court had a general
jurisdiction over the subject matter, although the citation was a
nullity, and said, that "no authority had been cited to show that
the judge would be liable to an action where he has jurisdiction,
but has proceeded erroneously, or, as it is termed,
inverso
ordine." Mr. Justice Blanc said there was
"a material distinction between a case where a party comes to an
erroneous conclusion in a matter over which he has jurisdiction and
a case where he acts wholly without jurisdiction,"
and held that where the subject matter was within the
jurisdiction of the judge and the conclusion was erroneous,
although the party should by reason of the error be entitled to
have the conclusion set aside and to be restored to his former
rights, yet he was not entitled to claim compensation in damages
for the injury done by such erroneous conclusion, as if the court
had proceeded without any jurisdiction. [
Footnote 14]
Page 80 U. S. 354
The exemption of judges of the superior courts of record from
liability to civil suit for their judicial acts existing when there
is jurisdiction of the subject matter, though irregularity and
error attend the exercise of the jurisdiction, the exemption cannot
be affected by any consideration of the motives with which the acts
are done. The allegation of malicious or corrupt motives could
always be made, and if the motives could be inquired into judges
would be subjected to the same vexatious litigation upon such
allegations, whether the motives had or had not any real existence.
Against the consequences of their erroneous or irregular action,
from whatever motives proceeding, the law has provided for private
parties numerous remedies, and to those remedies they must, in such
cases, resort. But for malice or corruption in their action whilst
exercising their judicial functions within the general scope of
their jurisdiction, the judges of these courts can only be reached
by public prosecution in the form of impeachment, or in such other
form as may be specially prescribed.
If, now, we apply the principle thus stated, the question
presented in this case is one of easy solution. The Criminal Court
of the District, as a court of general criminal jurisdiction,
possessed the power to strike the name of the plaintiff from its
rolls as a practicing attorney. This power of removal from the bar
is possessed by all courts which have authority to admit attorneys
to practice. It is a power which should only be exercised for the
most weighty reasons, such as would render the continuance of the
attorney in practice incompatible with a proper respect of the
court for itself, or a proper regard for the integrity of the
profession. And, except where matters occurring in open court, in
presence of the judges, constitute the grounds of its action, the
power of the court should never be exercised without notice to the
offending party of the grounds of complaint against him, and
affording him ample opportunity of explanation and defense. This is
a rule of natural justice, and is as applicable to cases where a
proceeding is taken to reach the right of an attorney to practice
his profession as
Page 80 U. S. 355
it is when the proceeding is taken to reach his real or personal
property. And even where the matters constituting the grounds of
complaint have occurred in open court, under the personal
observation of the judges, the attorney should ordinarily be heard
before the order of removal is made, for those matters may not be
inconsistent with the absence of improper motives on his part, or
may be susceptible of such explanation as would mitigate their
offensive character, or he may be ready to make all proper
reparation and apology. Admission as an attorney is not obtained
without years of labor and study. The office which the party thus
acquires is one of value, and often becomes the source of great
honor and emolument to its possessor. To most persons who enter the
profession, it is the means of support to themselves and their
families. To deprive one of an office of this character would often
be to decree poverty to himself and destitution to his family. A
removal from the bar should therefore never be decreed where any
punishment less severe -- such as reprimand, temporary suspension,
or fine -- would accomplish the end desired.
But on the other hand the obligation which attorneys impliedly
assume, if they do not by express declaration take upon themselves,
when they are admitted to the bar, is not merely to be obedient to
the Constitution and laws, but to maintain at all times the respect
due to courts of justice and judicial officers. This obligation is
not discharged by merely observing the rules of courteous demeanor
in open court, but it includes abstaining out of court from all
insulting language and offensive conduct toward the judges
personally for their judicial acts. "In matters collateral to
official duty," said Chief Justice Gibson in the case of Austin and
others,
"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 lines of professional
functions, and which may have been performed out of the pale of the
court. Such would be the
Page 80 U. S. 356
consequences of beating or insulting a judge in the street for a
judgment in court. No one would pretend that an attempt to control
the deliberation 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, practiced but on a single
judge, would be an offense as much against the court, which is
bound to protect all its 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."
The order of removal complained of in this case, recites that
the plaintiff threatened the presiding justice of the Criminal
Court, as he was descending from the bench, with personal
chastisement for alleged conduct of the judge during the progress
of a criminal trial then pending.
The matters thus recited are stated as the grounds for the
exercise of the power possessed by the court to strike the name of
the plaintiff from the roll of attorneys practicing therein. It is
not necessary for us to determine in this case whether under any
circumstances the verity of this record can be impeached. It is
sufficient to observe that it cannot be impeached in this action or
in any civil action against the defendant. And if the matters
recited are taken as true there was ample ground for the action of
the court. A greater indignity could hardly be offered to a judge
than to threaten him with personal chastisement for his conduct on
the trial of a cause. A judge who should pass over in silence an
offense of such gravity would soon find himself a subject of pity
rather than of respect.
The Criminal Court of the District erred in not citing the
plaintiff, before making the order striking his name from the roll
of its attorneys, to show cause why such order should not be made
for the offensive language and conduct stated
Page 80 U. S. 357
and affording him opportunity for explanation, or defense, or
apology. But this erroneous manner in which its jurisdiction was
exercised, however it may have affected the validity of the act,
did not make the act any less a judicial act, nor did it render the
defendant liable to answer in damages for it at the suit of the
plaintiff, as though the court had proceeded without having any
jurisdiction whatever over its attorneys.
We find no error in the rulings of the court below, and its
judgment must therefore be affirmed, and it is so ordered.
Judgment affirmed.
[
Footnote 1]
74 U. S. 7 Wall.
364.
[
Footnote 2]
16 Stat. at Large 160.
[
Footnote 3]
4
id. 487.
[
Footnote 4]
Ex Parte
Bradley, 7 Wall. 364.
[
Footnote 5]
16 Stat. at Large 160.
[
Footnote 6]
Justice Mayne, in
Taaffe v. Downes, reported in a note
to 3d Moore's Privy Council 41.
[
Footnote 7]
Yates v. Lansing, 5 Johnson 291.
[
Footnote 8]
12 Coke 25.
[
Footnote 9]
2 Cushing 68.
[
Footnote 10]
3 Best & Smith 576.
[
Footnote 11]
In
Scott v. Stansfield, 3 Law Reports Exchequer 220, a
judge of a county court was sued for slander, and he put in a plea
that the words complained of were spoken by him in his capacity as
such judge, while sitting in his court, and trying a cause in which
the plaintiff was defendant. To this plea a replication was filed,
that the words were spoken falsely and maliciously, and without any
reasonable, probable, or justifiable cause, and without any
foundation whatever, and not
bona fide in the discharge of
the defendant's duty as judge, and were wholly irrelevant to the
matter before him. To the replication the defendant demurred, and
the Court of Exchequer held the demurrer well taken. "I am of
opinion," said the Chief Baron,
"that our judgment must be for the defendant. The question
raised upon this record is whether an action is maintainable
against the judge of a county court, which is a court of record,
for words spoken by him in his judicial character, and in the
exercise of his functions as judge in the court over which he
presides, where such words would as against an ordinary individual
constitute a cause of action, and where they are alleged to have
been spoken maliciously and without probable cause, and to have
been irrelevant to the matter before him. The question arises,
perhaps, for the first time, with reference to a county court
judge, but a series of decisions uniformly to the same effect,
extending from the time of Lord Coke to the present time, establish
the general proposition that no action will lie against a judge for
any acts done or words spoken in his judicial capacity in a court
of justice. This doctrine has been applied not only to the superior
courts, but to the court of a coroner, and to a court martial,
which is not a court of record. It is essential in all courts that
the judges who are appointed to administer the law should be
permitted to administer it under the protection of the law,
independently and freely, without favor and without fear.
This
provision of the law is not for the protection or benefit of a
malicious or corrupt judge, but for the benefit of the public,
whose interest it is that the judges should be at liberty to
exercise their functions with independence, and without fear of
consequences."
[
Footnote 12]
74 U. S. 7 Wall.
523.
[
Footnote 13]
3 Maule & Selwyn 411.
[
Footnote 14]
Calder v. Halket, decided by the Judicial Committee of
the Privy Council, 3 Moore's Privy Council Rep. 28, goes to the
extent of holding that an action will not lie even against a judge
of an inferior court of limited jurisdiction for his judicial acts
when acting without jurisdiction unless he knew or had the means of
knowing of the defect of jurisdiction, and that it lies upon the
plaintiff in every such case to prove that fact.
MR. JUSTICE DAVIS, with whom concurred Mr. Justice CLIFFORD,
dissenting.
I agree that judicial officers are exempt from responsibility in
a civil action for all their judicial acts in respect to matters of
controversy within their jurisdiction. I agree further that judges
of superior or general authority are equally exempt from liability,
even when they have exceeded their jurisdiction, unless the acts
complained of were done maliciously or corruptly. But I dissent
from the rule laid down by the majority of the Court that a judge
is exempt from liability in a case like the present, where it is
alleged not only that his proceeding was in excess of jurisdiction,
but that he acted maliciously and corruptly. If he did so, he is,
in my opinion, subject to suit the same as a private person would
be under like circumstances.
I also dissent from the opinion of the majority of the Court for
the reason that it discusses the merits of the controversy, which,
in the state of the record, I do not consider open for
examination.
