# Ex Parte Bradley/Opinion of the Court

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* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Miller
United States Supreme Court
74 U.S. 364
Ex Parte Bradley
'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 offence was cognizable by the court in general term, irrespective of the doctrine of contempts.'
'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 the right to do, considered his offence 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 defence, 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.'
The case was elaborately argued by Mr. P. Phillips (with whom was Mr. Carlisle) for the relator. No counsel appeared in behalf of the Supreme Court of the District, which rested on its return; a document in form argumentative.
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 counsellor 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 3d, 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 3d, 1863, reorganizing the courts in this district, will show that this is an erroneous construction. It will be seen, by reference to 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 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 offences 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, 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 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, 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 offence 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 offence 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 offence specified, and, when the answer comes in, without any further notice or opportunity of defence or explanation, punish him for another and distinct offence. Certainly no argument can be necessary to refute such a proposition. 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 offence 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 offence being thus specified, he was fully advised of the matters against which he was called upon to defend, and enabled to prepare his defence 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 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 offence 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.
Second. That they possessed no power to punish him, upon an ex parte proceeding, without notice or opportunity of defence 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. 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 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.
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 counsellors 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 counsellor, 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 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. It must be a sound discretion, and according to law. As said by Chief Justice Taney, in Ex parte Secombe, '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: '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 counsellor, 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 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.' The same principle is also found stated with more fulness in Bacon's Abridgment, title 'Mandamus,' '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.'
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. 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 public concern, and regards the administration of justice; and because there is no other remedy.
Cases are found also in many of the courts of the States. Among the more recent are three cases in California; in New York; 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.
Mr. Justice SWAYNE, not having heard the argument, took no part in the judgment.

## Notes

* ↑ § 1.
* ↑ 5 Peters, 190
* ↑ Ex parte Bradstreet, 7 Peters, 634; Insurance Company v. Wilson's Heirs, 8 Id. 291; Stafford v. Union Bank, 17 Howard, 275; United States v. Gomez, 3 Wallace, 753.
* ↑ Tapping on Mandamus, 13, 14.
* ↑ 19 Howard, 13.
* ↑ 9 Wheaton, 530.
* ↑ 3 Blackstone's Com. 111.
* ↑ Letter D., p. 273.
* ↑ See also Bacon, letter E., p. 278; and Tapping on Mandamus, p. 105, and the cases there cited.
* ↑ On Mandamus, 44.
* ↑ White's case, 6 Modern, 18, per Holt; Leigh's case, 3 Id. 335; S.C.. Carthew, 169, 170.
* ↑ People v. Turner, 1 California, 143, 188, 190.
* ↑ People v. Justices, 1 Johnson's Cases, 181.
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