Ex parte Biggs

64 N.C. 202 | N.C. | 1870

Pearsost, O. J.

The subject of “the power of Courts, and the rights of attorneys,” would seem to be exhausted by the elaborate argument of the counsel for the respondent. The want of some “ student of the law” on the other side of the question, equally diligent with Mr. Moore, is met by the very full expose of the result of his examination of the cases.

The power of the Court, on the ground of self protection, outside of the common law doctrine, and of the statute in regard to contempts, — to disbar an attorney, who has shown himself unfit to be one of its officers, although earnestly contested on a former argument by six learned members of the bar, is now conceded.

So, the principle is settled; and the only difference of ,opiniojj; is in respect to its application.

On the side of the resn^Aht, it was insisted, that the-principle applies only to <of moral delinquency; as, if' an attorney be convicted of crime, say forgery — or, if, without a conviction it appears to the Court, upon an investigation had before it, that an attorney is guilty of gross fraud; say, by making corrupt misrepresentations to his client, and ■obtaining.an assignment for an inadequate consideration.

But we hold that the principle embraces also, cases where an attorney makes a publication calculated to injure the court, and intended ~by him to have that effect — “-an evil bird bewrayeth its own nest.” The court has power to rid itself -of one, who thus proves that he is not fit to be trusted as one of its officers.

If the attorney, when called on, disavows the criminal intention, that is an end of the proceeding: — should he be unable to make this disavowal, the only alternative, is an order to .strike his name off of the roll.

We were pleased to hear the hope expressed on the argument, that this discussion might induce a better state of feeling. This tender of a return to good feeling, is cordially accepted.

Since the principle is now conceded, and there is only .some difference of opinion as to its application, we presume the public mind will be relieved from fear of usurpation .of power by the court, and of “ judicial tyrany.”

In our case, the facts not being controverted, it was, in the first place, a question of law for the court: Was the publication' calculated to injure the court, and destroy its usefulness ? The article refers to Judge Jones in his official character, and is calculated to hold the court up to ridicule, and. thereby injure and bring it into disrepute. But it purports 10 b e by the editor of a newspap er — has no reference to Mr.Biggs . as an attorney of the court, and does not seek to attach to the publication any additional importance, by reason of the fact, that besides being an editor of the newpaper, (it would be :the same as to a merchant or a farmer, except that an editor of a newspaper has greater facility for publication,) be is also an attorney of tbe courHfeá^Jris fact, however, being known to bis readers, was calculated to add-to tbe force of tbe article.

There is a marked difference between this article, and one importing to.be pubbsbed by an attorney of tbe court; and an exceeding difference between a mere editorial of a newspaper, and a solemn Protest, pubbsbed by a combination and confederacy of many attorneys, assuming to act as tbe Bar of tbe State of North Carolina. In this view, perhaps it might have been as web if bis' Honor bad not noticed tbe article, and bad abo wed it to pass as a u newspaper squib.”' But be felt it to be bis duty, as a court, to put Mr. Biggs, one of its editors, under a rule. Mr. Biggs, if so advised, bad tbe right, in answer to tbe rule, to raise tbe question, that a prinna /¿icigcase was not made out', and that be was not cabed on to make a disavowal. But be elected to make a disavowal. So tbe question: Whether an editorial article, when tbe editor of tbe newspaper is also an attorney of tbe court, fabs under tbe principle, is not presented by tbe record.

This court is not at liberty to go out of tbe way, in order to express an opinion upon it.

In Ex parte Moore, 63 N. C. 397, tbe court says: u Tbe rule rests on sound reason. In this proceeding, as tbe court is judge in its own case in tbe first instance, when a case is made out in tbe judgment of tbe court, tbe party, in tbe last instance, is abowed to try Imnself. His intention is locked within bis own breast; is known to himself alone, and be is permitted to purge himself by bis own disavowal. He cannot be convicted if be is innocent, as be.may be by false evidence before a jury. Eor, tbe court does not try him; be tries Imnself. C. J. Wilmot’s Opinions, 267-8,referredtoin tbe Trial of Judge Peck, 507. If tbe party, after tbe court decides against him, declines to try Imnself it must be because, be knows himself to be guilty.

Mr. Biggs submitted to “try himself,” and filed a disavowal in these words: ‘1 This respondent respectfuby answers: ■

1. That as an attorney and counsellor in this court, he has ever been respectful, both in his deportment and language, to his Honor, Judge E. W. Jones; and disavows having ever entertained any intention of committing a contempt of court, or any purpose to destroy or impair its authority, or the respect thereto.”

Had the answer stopped here, there would have been no difficulty, and the rule would have been discharged, u as of course.”

The matter set out in the subsequent part of the answer (as it is termed), might have been relevant in the first stage of the proceeding: in order to show that a “prima fade case ” was not made, and consequently, that the party could not be required to mate a disavowal. But the disavowal had already been made: so this matter was supererogatory, and had no hearing at that stage of the proceeding, after the party had tried himself. Its only tendency was to “ embarrass the question.” And so much confusion is thrown on it as to have led his Honor into error. He holds: “ The first clause of the answer is not responsive to the rule, because it does not particularly disavow an intention to impair the respect due to the authority of the court by the publication of the article referred to.” The respondent disavows “ having ever entertained any intention of committing a contempt of the court, or any purpose to destroy or impair its authority, or the respect due thereto.”

True, this disavowal is more general than it need to have been; and its generality may have been intended to weaken its force. But still “ the greater includes the less,” and there is a disavowal, included in- the general words, of an intention by the publication of the article in the newspaper, to commit a contempt of the Court, or of any purpose to destroy or impair its authority or the respect thereto. We think this in substance responds to the rule.

This proceeding is one of a peculiar nature, of necessity. The Court is to some extent, a judge in its own case, hence, when the respondent submits to £i try himself,” and a disavowal is made on oath, the Court must accept it, and is no1 allowed to call in question, the truth or the sincerity of tin disavowal. There is no mode of trying such questions; anc they are left “ to the Searcher of all hearts ”

The disavowal entitles the respondent to be excused, oi ■•acquitted, and the effect in either view is to discharge the rule.

There is error in the ruling of the Court below. Orde) reversed, and Buie discharged.

Per Curiam. Error.