Lancaster daily intelligencer. [volume] (Lancaster, Pa.) 1864-1928, 1880-01-30
responsible for fair criticism Of its conduct

for fair criticism Of its conduct
Or character. Personally Mr.. Shapley
thought the publication complained of re-
flected rather on attorneys of the court
than the court itself, but he was willing
for all the purposes Of the argument to
presume that the court thought itself libel
led or even that it was hbeled. lie also
that the court would respect its
oath, and do even Justice
of interest or feeling, and if
calm review Of the law showed it to be
wong rules improvidently sranted, would
be promptly discharged. Then dividing the
subject as the rules divided it, Mr. Shap-
ley considered, first, the rules for contempt,
then the rules to disbar for what took
place in court and for what occurred out of
court and the following extracts from an
elaborate brief printed, and copy handed
to the court, will convey an idea of the
line of argument adopted
Brief of Argument.
First. As to the rule Of contempt.
1. There is nothing appearing in the pro-
ceedings recited as having taken place in
court which can be tortured into anything
resembling 4 contempt of court.
The court sent a messenger, aSkin. the
respondents to come into court, and al
though no complaint had been made
against them, no process of the court had
been served upon them, and no judicial
proceeding was pending, they courteously
responded to the message from the court,
and respectfully and truthfully answered
the interrogatOries prOpOunded to them by
the court. They were not bound to an
swer the questions thus extra; ;iudicially
propouIded,' and the court had no power
to compel them to do so. But they frankly
and respectfully answered that they were
editors of the LANCASTER 1NTELLIGENCER
and, as such, We're responsible for the arti-
Gle which the court complained of. The
court pressed for an answer to the ques-
tiOn, whether they adopted the sentiments
contained in the article, to which they
made answer, that as editors and editors
only, they were responsible for the article.
The whole proceeding was cOrdm non
judice.
An attorney has Ill equal right with
every citizen to entertain and express free
ly, out of court, such sentiments regarding
the conduct of a court i'm q case which has
been determined as he may see tit to hold
or utter without rendering himself liable to
punishment for contempt. And rs the
court has no constitutional power to COM
pei citizen or an attorney to avOw. or
disclaim, in court, sentiments uttered out
of court, it would be an abuse of the pre-
negatives of court to call before them
persons against whom 10 legal complaint
OF proceedings are pending and to ell
deavOr to compel them, in violation OF
their constitutional rights. to make admis-
siOns or furnish information against them
selves, upon which a criminal prosecution
might be founded. AS no such power has
ever been claimed by any court in which
the English language is spoken, it is to be
presumed that these rules have not been
taken, and that it is not contemplated pun
ishing the respondents for contempt, by
reason of what they said, or what they did
not say, in the extra, judicial inquiry by
the court.
2. That the respondents cannot be pun
isllcd for contempt for the publication,
made out of court, of the article complain
ed of is settled i,y the act of June 16,
1886.
Secondly. is to the rule to disbar.
1. Ii the respondents are not guilty of Il
contempt by reason of anything which oc-
CURED in the extra-judicial proceeding in
court, still less are they guilty of misbc-
havlor as attorneys. And even If they
could be held guilty Of a contempt by rea-
son of what occurred in court, such a con-
tempt does not constitute one Of the legal
causes for which an attorney can be legal
ly disbarred.
2. If their alleged misbehavior, as attor-
neys. is charged to have consisted in their
publishing the article complained of, as it
was published out of co urt and the court
could have no judicial knowledge of the
fact, this proceeding is irregular, because
the rule was not founded upon COM
plaint containing the precise charges
against them and supported by affidavit,
and the rules should therefore be dis
charged.
An attorneys Office is his property, of
which he can be deprived only for legal
causes and according to the wcll-estab-
lished rules of law.
Chief Justice Taney, in delivering the
opinion of the supreme court of the United
States, in er parte iSscOmbe, 10 Howard o,
used this language: ''It rests exclusively
with the court to determine who is quail
fed to become one of it's officers, Us an at
torney and counsellor at law, and for what
cause he ought to be removed. That pO1cer,
howerer, isnot an arbitrary and despOtic one.
to be exercised at the pleasure Of the court,
or from passion, prejudice, or personal los
hIty;; but it is the duty of the court to
exercise and regulate it by sound and just
judicial discretion, whereby the rights and
of the bar may be scrup,l-
lously guarded and maintained by the
court, as we'll as the rights and dignity of
the court ITSELF"
In delivering the opinion of the court in
1885, Chief Justice Gibson, without refer
ring to any authorities, advanced the doc
trine, which seems to have never before
been ruled in any court in England or
America, that a lawyer, who would beat or
insult a judge in the street for a Judgment
in court, or who would attempt to Overawe
the bench Oy menace. challenge, or that
powerful engine, the press, would be
of contempt, but of such
of professional fidelity as would
justify his dismissal from the bar
1t is necessary to examine his opinion
so as not to fall into the error of
that that great judge meant to
limit the rights Of either the bar or the
press to scrutinize the conduct of judges. or
to say that a lawyer may be punished pro-
fessionally for what he did as citizen, or
that an editor, who happens to be lawyer,
may be proceeded against and punished in
any other way, than one can be who is not
4 lawyer. Can his language possibly be
He says
But the end to be attained by removal.
IS not punishment, but protection AS
Sr1,v h., 1