REPORTS

OF

RIMINAL LAW CASES.

Supreme Court.

NASHVILLE, (TENNESSEE.)

Decision in the case of P. H. Darby.

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1824.

If an attorney write and publish strictures on an opinion delivered NASHVILLE in court, with a view to prejudice a cause pending in such court, or the court to which it may be remanded for trial, such publishing is a contempt, for which he may be stricken from the roll of attorneys.

The judgment of the court to which the contempt is offered is final; and though the proceedings be summary, is no infringement of the 11th section of the Bill of Rights.

The power of courts to punish for contempts by summary judgment. existed before, and since, Magna Charta, from which the said section in our Bill of Rights is copied; consequently subject to like constructions,

Under the act of 1815, ch. 95. the supreme court can silence and disqualify an attorney; and he can be restored no otherwise than by such court revoking the sentence.

A license subsequently procured from circuit judges pending the judgment of disqualification, is a void license.

The grant of it being in effect a reversal of the judgment of a superior tribunal, was illegal,' and it will not be allowed inferior tribunals to dọ by circuity what they cannot do directly.

HAYWOOD, J. delivered the joint opinion of himself and PECK, J.

Darby having on the second day of this term been stricken from the roll of attorneys, for a publication VOL. III.

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1824.

NASHVILLE in print respecting a suit still pending in the circuit court for the county of Anderson, in which the opinion of the supreme court had been given at Knoxville, for the purpose of forestalling the public opinion upon the merits thereof, and to excite public indignation against the judges for giving that opinion, and to bring the same into contempt, has, since that time," as he says, obtained a certificate from the county court of Davidson, and has obtained a new license from Thomas Stewart and Robert Mack two of the judges of the circuit courts; and he, by virtue thereof, has applied to this court to be again admitted to practise as an attorney in this court. As judge Whyte was a judge of this court who was not implicated in this or in any other publication made against the judges, the other two judges of this court have been desirous that he should act upon this motion, as no feeling unfavorable to the applicant could be possibly supposed to intermix in any judgment which he might form. But as that desire has been hitherto disappointed, the to remaining judges of the court will now proceed to give their sentiments upon this application. It is indeed a novel application, as was the other day mentioned, but it is not one concerning which the court can be under any embarrassment. For whether we consider of the power of the court to punish for a contempt, or of punishing an attorney by striking him from the rolls; or of the constitutionality of this power; or of its being a part of the criminal jurisdiction or otherwise; or of the rights which other courts or judges have to pardon, release or defeat, the punishment ordered, either directly or indirectly; it will be discovered, that with respect to any of these articles there is not any serious difficulty.

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The power to punish for contempts is so indispensa- NASHVILLE ble to the preservation of the authority of the courts of judicature, and to both branches of the legislature, that it has been considered by general consent conceded to them. from times of the highest antiquity to this day. In 4 Bl. p. 282, 283, 284. 288. specifying the contempts for which the court may punish in a summary way, he enumerates, among others, that by speaking or writing contemptuously of the court or judges, acting in their judicial capacities, by printing false accounts, or even true ones, without proper permission, of causes then depending in judgment; and by any thing, in short, which demonstrates a gross want of that regard and respect, which, when once courts of justice are deprived of their authority, is entirely lost amongst the people. And to this may be added, Hawk. P. C. b. 2. ch. 22. 5.2. sec. 21.; Bac. Abr. At. a. 1.; Com. Dig. At. a. 1.; 4 Johns. 328.; 5 Johns. 289.; 9 Johns. 398. 416.; 14 East, 84, 85. 95. 100, 101.; Wilmot's Reports, 243. 254.; 1 Wilson, 299. ; 3 Wilson, 188, 189.; 2 Bl. Rep. 758.; 2 Atk. 471. What would be the consequence, if courts of judicature had not this power? Every such publication is intended to have the effect of beating down the pretensions of one party, and of establishing the claims of the other upon their ruins. Otherwise the publication has no object at all. If an artful writer may villify and abuse the one party, and make his cause odious, the effect is by forestalling and prejudicing the public mind, to make the jurors favor one side against the other, and to deter the judges from a candid and fair expression of their sentiments, and by means of terror to procure judgment against the abused adversary, whatever may be the merits of his cause, and whether

NASHVILLE law and justice be on his side or not. The plain and

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simple man, when sued, is no otherwise able to defend himself than by looking to the judge to give him the law which the legislature has provided for his security. But how can he obtain this benefit, after his more able adversary has made the world believe that he is a villain; has blackened his cause in public estimation; has turned the current of popular prejudice against him; has preoccupied the opinions of the jurors, and has so intimidated the judges who are to decide in his cause, as to make them afraid to give judgment in his favor, however meritorious his cause may be. If such practices must be tolerated, what chance has the weak man against the strong? the poor man against the rich? the man without friends and influence, against him who has both? The law is made dumb, the judges dare not pronounce it, and the daring and factious lay their rapacious hands upon such property of the people as they choose to fancy. They have no more to do but to sue for it, to traduce the possessor, to terrify the judge, and to sit down and divide the spoil with their friends. No man who had a good cause ever took such a course: he has no need of calumny, nor of public prepossessions, to hold up his cause; he confidently trusts to the unbiassed judgment of the court, and to its own intrinsic recommendations. If such practices must be tolerated, what is the law but an engine, by the help of which the cunning man overreaches and ruins his unlearned neighbor? and by what tenure do the people hold their possessions, but at the will and pleasure of those who, by their publications, acquire over the public functionaries a destructive ascendancy? Can a judge whose mind is enslaved by fear, do justice against the tyrant who en

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slaves him? Can he apply the maxims of jurisprudence NASHVILLE for the protection of a defenceless adversary; a helpless citizen, who has no friends or factious partizans to' back him; who has no wealth, or family, or fame, to sustain him?

If the court had not such power, the laws could not be executed, and the government itself would be prostrated. But how is this power to be exercised? I answer, by fine and imprisonment, when it is proper; and by striking the name of an attorney from the rolls when it is more proper. Attorneys, for misbehaviour, have been stricken from the rolls in a summary way, from the earliest periods of our judicial history to this day. Instances may be seen by reference to the Year Books of H. 6. pl. 37.; Moore's Rpls. 882.; 30 Eliz. Osbaston's case; Cro. Ch. 74. ; Stiles's. Prac. Reg. 12. ; 6 Mod. 187.; 2 Atkins, 173.; 2 Inst. 214, 215.; Cowp. See Vol. 2. 829. In 1 Vent. 331. for contemptuous words in court, Burr's Case, an attorney was suspended from practice, or stricken from the rolls, which, in 2 Bl. Rep. 222. is explained to be, till the court shall think proper to restore him. 6 East, 143. The same power is confirmed by the act of 1815, ch. 95. and 1817, ch. 135. the effects of which acts will presently be examined.

This power, so far from being repugnant to the words or spirit of our constitution, is, on the contrary, a part of that law of the land which is recognized. The 29th article of Magna Charta, which says, as our own Bill of Rights does, art. 11. sec. 8. "That no freeman shall be taken or imprisoned, or disseized of his freehold liberties or privileges, or outlawed or exiled, or in any manner destroyed or deprived of life, liberty, or property, but by the judgment of his peers, or the law of the land,”

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the Attorneys.