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Silcott v Commissioner of Police for the Metropolis COURT OF APPEAL (CIVIL DIVISION) The Times 9 July 1996, (Transcript: Smith Bernal) HEARING-DATES: 24 MAY 1996 24 MAY 1996

The Times 9 July 1996, (Transcript: Smith Bernal)

 

Silcott v Commissioner of Police for the Metropolis

COURT OF APPEAL (CIVIL DIVISION)

The Times 9 July 1996, (Transcript: Smith Bernal)

HEARING-DATES: 24 MAY 1996

24 MAY 1996

COUNSEL:
Lord Williams of Mostyn QC and E Rees for the Appellant; R Seabrook QC and D MacLeod for the Respondent

PANEL: NEILL, SIMON BROWN, WAITE LJJ

JUDGMENTBY-1: SIMON BROWN LJ

JUDGMENT-1:
SIMON BROWN LJ: This is a plaintiff’s appeal against the order of Drake J on 12 April 1995 dismissing his appeal against the striking-out order made by Master Eyre on 2 February 1995.

In a sentence, the plaintiff served a Statement of Claim upon the defendant commissioner pleading three causes of action respectively:

(1) conspiracy to pervert the administration of public justice;

(2) misfeasance in a public office, and

(3) malicious prosecution.

The first two have been struck out; the third stands. By this appeal the plaintiff seeks to have the first two reinstated.

The principal advantage to the plaintiff of succeeding upon the appeal, let it be made plain at once, is that he would be spared the need to prove the absence of reasonable and probable cause to prosecute, one of the essential ingredients of the tort of malicious prosecution but an ingredient lacking from the other two causes of action. I should add that proof of malice is required for all three.

With that short introduction let me set out the relevant facts which for the most part I gratefully take from the judgment below. On 6 October 1985 Police Constable Blakelock was killed during a riot on a housing estate at Tottenham in North London. On 12 October at 6.45 pm. the plaintiff was arrested by Detective Chief Superintendent Melvin for the murder. He was taken from the Tottenham Police Station to Paddington Green Police Station arriving there at 9.03 pm.

He was there interviewed by Detective Chief Superintendent Melvin and Detective Inspector Dingle, once on 12 October and four times on 13 October. Detective Inspector Dingle wrote notes purporting to be a contemporaneous record of what the plaintiff said in answer to questions by Detective Chief Superintendent Melvin during the interview which took place between 7.11 and 8 pm. on 13 October. Detective Chief Superintendent Melvin countersigned those manuscript notes. At 8.45 pm. on 13 October Detective Chief Superintendent Melvin charged the plaintiff with the murder of Police Constable Blakelock.

On 19 March 1987 at the Central Criminal Court the plaintiff was convicted of the murder and of riot. He was sentenced to life imprisonment and ten years’ imprisonment respectively. The trial judge recommended that he serve not less than 30 years of the life sentence.

The only witness against the plaintiff at the trial was Detective Chief Superintendent Melvin. He produced the notes made by Detective Inspector Dingle and presented them as a true record of the interview. The notes contained admissions or partial admissions by the plaintiff of his guilt. The plaintiff did not himself give evidence at the trial.

On 25 July 1991 the Home Secretary ordered an investigation which embraced an enquiry into the way in which the interviews had been conducted and the authenticity of the notes of interview. In the course of that investigation, carried out by officers of the Essex Constabulary, Detective Chief Superintendent Melvin said that the notes of the interview were a true record. On 1 October 1991 the Home Secretary referred the convictions to the Court of Appeal (Criminal Division) under s 17 of the Criminal Appeal Act 1968. On 15 November 1991 the Court of Appeal quashed the convictions on the basis that they were unsafe and unsatisfactory. The prosecution did not resist the appeal.

On 16 March 1993 the plaintiff’s writ in the present action was issued. The Statement of Claim was served on 29 June 1993. The plaintiff’s pleaded case (which for the purpose of deciding a striking-out application must be assumed to be true) is as follows:

(1) The notes are a false record; the questions were not asked and the answers were not given.

(2) They were the result of an agreement between the two police officers to create a false record in order to harm the plaintiff by showing that he had murdered Police Constable Blakelock.

(3) The false record did harm the plaintiff in that it contributed to his conviction for murder.

(4) The intention of the two police officers was to pervert the course of the investigation into that murder.

(5) In agreeing to create and in creating the false notes the two police officers acted maliciously and in the knowledge that they were abusing the office of constable.

Although as I repeat those pleaded allegations are for present purposes to be assumed true, I should emphasise two matters: first, that the plaintiff’s case against these police officers (who were acting under the control of the defendant commissioner) has not yet been tried or adjudicated upon; second, that the two officers were charged with conspiracy to pervert the course of justice and with perjury, tried at the Central Criminal Court, and on 26 July 1994 both acquitted by unanimous jury verdict on each count.

The action had been stayed pending that criminal trial. Once it was over, the defendant issued his striking-out application with the result already indicated.

The issue raised on appeal remains, as it was identified below, “whether the alleged actions of the police officers are protected from any civil action for conspiracy to pervert the course of justice or misfeasance in a public office by reason of a cloak of absolute immunity conferred as a matter of public policy.”

It has never been suggested that the plaintiff should be legally barred from pursuing his action for malicious prosecution.

Before turning to the arguments, it is convenient to indicate something of the relevant law. Rather than refer in detail to the various authorities, I propose to set out, with only very limited citations, what I take to be the central principles in play.

(1) There exists a fundamental rule of law that:

“no action lies against parties or witnesses for anything said or done, although falsely and maliciously and without any reasonable or probable cause, in the ordinary course of any proceeding in a court of justice.”

per Kelly CB in Dawkins v Lord Rokeby [1873] LR 8 QB 255. As Sellers LJ put it in Marrinan v Vibart and Another [1963] 1 QB 528, [1962] 3 All ER 380 at 535 of the former report:

“Whatever form of action is sought to be derived from what was said or done in the course of judicial proceedings must suffer the same fate of being barred by the rule which protects witnesses in their evidence before the court and in the preparation of the evidence which is to be so given.”

I shall call this the immunity rule.

(2) The public policy purposes underlying the immunity rule are essentially twofold. First, per Fry LJ in Munster v Lamb (1883) 11 QBD 588:

“… to protect persons acting bona fide, who under a different rule would be liable, not perhaps to verdicts and judgments against them, but to the vexation of defending actions.”

Second, as Lord Wilberforce said in Roy v Prior [1971] AC 470, [1970] 1 QB 283 at 480 of the former report:

“… to avoid a multiplicity of actions in which the value or truth of their evidence would be tried over again”,

in other words to avoid the impeachment of evidence given and conclusions reached in one trial by subsequent collateral challenge.

(3) The immunity rule applies in the context of criminal proceedings

“… only where the statement or conduct is such that it can fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution or possible prosecution in respect of the matter being investigated”,

per Drake J in Evans v London Hospital Medical College (University of London) and Others [1981] 1 All ER 715, [1981] 1 WLR 184 at 720 of the former report. The immunity does not extend to matters outside the relevant proceedings, for example to defamatory communications sent to the Bar Council prior to a disciplinary enquiry; see Lincoln v Daniels [1962] 1 QB 237, [1961] 3 All ER 740.

(4) The immunity rule does not apply to proceedings “in respect of malicious abuse of process”, whether for malicious prosecution or malicious arrest – see Lord Morris of Borth-y-Gest in Roy v Prior [1971] AC 470 at 477 G to 478 A, itself a case of malicious arrest. This is so even though, as Lord Morris pointed out in that same passage:

“It must often happen that a defendant who is sued for damages for malicious prosecution will have given evidence in the criminal prosecution of which the plaintiff complains.”

As Lord Keith put it in Martin v Watson [1996] 1 AC 74, [1995] 3 WLR 318 at 328 of the latter report:

“The essential feature of malicious prosecution is an abuse of the process of the court. If that has occurred it is immaterial that the abuse has involved giving evidence in a court of law.”

(5) The immunity rule is not

“to be circumvented by alleging a conspiracy between witnesses to make false statements”

see Lord Morris in Roy v Prior at page 477, approving the Court of Appeal decision to that effect in Marrinan v Vibart. Similarly, in Marrinan v Vibart itself the court noted the repeated attempts over the years one way or another to escape the immunity rule, attempts variously described as “in despair”, or “an obvious try-on”.

A recent decision in point is McDonagh and Another v Commissioner of Police of the Metropolis, The Times, 28 December 1989, where Popplewell J refused to permit the plaintiff to add to a malicious prosecution claim an alternative cause of action for misfeasance in a public office, an action which he pointed out would succeed even without proof of absence of reasonable and probable cause.

(6) The immunity rule should extend only so far as is

“strictly necessary … in order to protect those who are to participate in the proceedings from a flank attack”

per Devlin LJ in Lincoln v Daniels at page 263 of the former report.

As Lord Wilberforce put it in Roy v Prior at page 480:

“Immunities conferred by the law in respect of legal proceedings need always to be checked against a broad view of the public interest.”

Those being the governing legal principles, how does Lord Williams QC seek to escape the immunity rule in the particular circumstances of this case? His argument is essentially this, that there is a real difference – “a qualitative difference” as he calls it – between on the one hand the preparation of false testimony which may include the making of a report or statement — which is, he acknowledges, barred by the immunity rule — and on the other hand the fabrication of a false object, perhaps a physical exhibit — “the fraudulent creation of real evidence”, as he calls it — which he contends is not.

This case, he submits, involved the creation of a false document, namely seven pages of manuscript notes purporting to be a contemporaneous record of an incriminating interview with the plaintiff, but in fact a forgery, sheer invention from first to last. Such conduct, he argues, is not immune from suit merely because the police officers’ own statements and testimony on the issue were prepared for the plaintiff’s criminal prosecution. That, he submits, is coincidental, just as the fact that oral evidence may be given by the prosecutor in a malicious prosecution case is incidental.

He submits that in fabricating evidence against the plaintiff the officers here were not “investigating crime” and thus cannot benefit from the immunity rule. Similarly, he submits, Detective Chief Superintendent Melvin’s continuing assertion, during the course of the s 17 enquiry, over four years after trial, that the interview notes were a true record, is a distinct aspect of misfeasance which falls outside the period.

Mr Seabrook QC for the respondent Commissioner submits that the requirement in the tort of malicious prosecution to prove absence of reasonable and probable cause strikes what has long been recognised as the right balance between the competing public interests here at stake. The distinctions contended for by Lord Williams are, he submits, artificial, distinctions without a difference. That, I have to say, is very clearly how the case strikes me. I can see no “qualitative difference”, nor indeed any rational distinction whatever, between the various situations considered in argument for which Lord Williams contends.

The same policy considerations as underlie the immunity rule in its most direct and obvious application, ie. where statements have been prepared for proceedings and evidence has then been given, to my mind apply with equal force to the present situation. Protection must extend to the preparation of evidence equally as to its presentation. Similarly, it must extend to encompass any subsequent s 17 enquiry, such as here took place. I see no difference in principle between a police officer fabricating a record of interview in writing, and the equivalent in times past, a police officer verballing an accused; nor between, say, an officer planting a brick or drug on an accused so that someone else will give truthful evidence of having found it, and an officer giving false evidence that he himself found such a brick or drug.

In my judgment, Drake J was correct in Evans to have held that the immunity covers all conduct that can fairly be said to be part of the investigatory and, I would add, preparatory process. To Lord Williams’ submission that there is no public interest in protecting those who create false evidence or, for that matter, those who destroy sound evidence, I would answer that that misses the essential point: the public interest is in the protection of those who might otherwise be falsely accused of such conduct.

That of course leaves this position:

(1) that the assumed miscreant is himself open to criminal prosecution whether for perjury or for perverting the course of public justice, precisely the charges which faced the defendant officers in the present case.

(2) if the miscreant is himself responsible for the prosecution being brought, whether or not himself technically the prosecutor (see on this point Martin v Watson [1995] 3 WLR 318) he is vulnerable to a claim for malicious prosecution.

I acknowledge that, if the false information provided by the miscreant was not the determining factor in the decision to prosecute, so that he himself cannot be sued for malicious prosecution, then the effect of the immunity rule is to deny the person aggrieved all civil remedy against him. This, however, seems to me altogether less of an anomaly than would arise upon the appellant’s argument: namely that, wherever the alleged miscreant is a police officer, an action lies for misfeasance in a public office; and that, wherever there is alleged to be more than one miscreant, a claim can be brought for conspiracy, in each case without the need for the plaintiff to prove the absence of reasonable and probable cause, or indeed for the plaintiff even to have been acquitted of the crime charged against him.

In my judgment the law upon the point is clear. This action, insofar as it goes beyond a claim for malicious prosecution, is yet another attempt to evade the immunity rule, “an obvious try-on” as Lord Goddard called a comparable earlier attempt.

All that I have said is in the context of what I had at first understood to be the case, namely that the fabricated interview notes were signed by the plaintiff and exhibited by Detective Chief Superintendent Melvin. We are now told that this was not so. We are further told, indeed, that Detective Chief Superintendent Melvin’s evidence went unchallenged, Detective Inspector Dingle not being required by the defence to give corroborative evidence. On the true facts, therefore, the appellant’s case becomes yet more unarguable. That however is by the way. Drake J was, I conclude, correct both in his ruling and in the reasons he gave.

I would dismiss this appeal.

JUDGMENTBY-2: WAITE LJ

JUDGMENT-2:
WAITE LJ: I agree.

JUDGMENTBY-3: NEILL LJ

JUDGMENT-3:
NEILL LJ: I also agree. I only add a few words of my own to emphasise the width and importance of this immunity. The nature of immunity was clearly stated by Salmon J in Marrinan v Vibart [1963] 1 QB 234 at 237 when he said that the immunity given to a witness or a potential witness is because

“the administration of justice would be greatly impeded if witnesses were to be in fear that … persons against whom they gave evidence might subsequently involve them in costly litigation.”

That passage in Salmon J’s judgment was quoted by Drake J in his decision in Evans v London Hospital Medical College [1981] 1 All ER 715 and [1981] 1 WLR 184, to which my Lord has already referred. Drake J continued as follows at 720 and 191:

“If this object [that is the immunity] is to be achieved I think it is essential that the immunity given to a witness should also extend to cover statements he makes prior to the issue of a writ or commencement of a prosecution, provided that the statement is made for the purpose of a possible action or prosecution and at a time when a possible action or prosecution is being considered. In a large number of criminal cases the police have collected statements from witnesses before anyone is charged with an offence; indeed sometimes before it is known whether or not any criminal offence has been committed.

If immunity did not extend to such statements it would mean that the immunity attaching to the giving of evidence in court or the formal statements made in preparation for the court hearing could easily be outflanked and rendered of little use. For the same reason I think that immunity must extend also to the acts of the witness in collecting or considering material on which he may later be called to give evidence. If it does not so extend then a convicted person could, for example, sue the police officers for the allegedly negligent manner in which they investigated the crime, by complaining that they had wrongly assessed the evidential value of certain matters or had failed to interview possible witnesses whose evidence was thought by the accused to be favourable to him.”

For these reasons and for the reasons much more fully explained in the judgment of my Lord, I too would dismiss this appeal.

DISPOSITION:
Appeal dismissed

SOLICITORS:
Bindman & Partners; Solicitor to the Met

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Categories: CaseLaws

STANLEY v. GEORGIA, 394 U.S. 557 (1969) 394 U.S. 557 U.S. Supreme Court

U.S. Supreme Court

STANLEY v. GEORGIA, 394 U.S. 557 (1969)

394 U.S. 557

STANLEY v. GEORGIA.
APPEAL FROM THE SUPREME COURT OF GEORGIA.
No. 293.
Argued January 14-15, 1969.
Decided April 7, 1969.

Under authority of a warrant to search appellant’s home for evidence of his alleged bookmaking activities, officers found some films in his bedroom. The films were projected and deemed to be obscene. Appellant was arrested for their possession. He was thereafter indicted, tried, and convicted for “knowingly hav[ing] possession of . . . obscene matter” in violation of a Georgia law. The Georgia Supreme Court affirmed, holding it “not essential to an indictment charging one with possession of obscene matter that it be alleged that such possession was `with intent to sell, expose or circulate the same.'” Appellant contends that the Georgia obscenity statute is unconstitutional insofar as it punishes mere private possession of obscene matter. Georgia, relying on Roth v. United States, 354 U.S. 476 , argues the statute’s validity on the ground that “obscenity is not within the area of constitutionally protected speech or press.” Id., at 485. Held: The First Amendment as made applicable to the States by the Fourteenth prohibits making mere private possession of obscene material a crime. Pp. 560-568.

(a) Neither Roth, supra, nor subsequent decisions of the Court were made in the context of a statute punishing mere private possession of obscene material, but involved governmental power to prohibit or regulate certain public actions respecting obscene matter. Pp. 560-564.

(b) The Constitution protects the right to receive information and ideas, regardless of their social worth, and to be generally free from governmental intrusions into one’s privacy and control of one’s thoughts. Pp. 564-566.

(c) The State may not prohibit mere possession of obscene matter on the ground that it may lead to antisocial conduct, Roth, supra, distinguished, or proscribe such possession on the ground that it is a necessary incident to a statutory scheme prohibiting distribution, see Smith v. California, 361 U.S. 147 . Pp. 566-568.

 

224 Ga. 259, 161 S. E. 2d 309, reversed and remanded. [394 U.S. 557, 558]

Wesley R. Asinof argued the cause and filed a brief for appellant.

J. Robert Sparks argued the cause for appellee. With him on the brief was Lewis R. Slaton.

MR. JUSTICE MARSHALL delivered the opinion of the Court.

An investigation of appellant’s alleged bookmaking activities led to the issuance of a search warrant for appellant’s home. Under authority of this warrant, federal and state agents secured entrance. They found very little evidence of bookmaking activity, but while looking through a desk drawer in an upstairs bedroom, one of the federal agents, accompanied by a state officer, found three reels of eight-millimeter film. Using a projector and screen found in an upstairs living room, they viewed the films. The state officer concluded that they were obscene and seized them. Since a further examination of the bedroom indicated that appellant occupied it, he was charged with possession of obscene matter and placed under arrest. He was later indicted for “knowingly hav[ing] possession of . . . obscene matter” in violation of Georgia law. 1 Appellant [394 U.S. 557, 559]   was tried before a jury and convicted. The Supreme Court of Georgia affirmed. Stanley v. State, 224 Ga. 259, 161 S. E. 2d 309 (1968). We noted probable jurisdiction of an appeal brought under 28 U.S.C. 1257 (2). 393 U.S. 819 (1968).

Appellant raises several challenges to the validity of his conviction. 2 We find it necessary to consider only one. Appellant argues here, and argued below, that the Georgia obscenity statute, insofar as it punishes mere private possession of obscene matter, violates the First Amendment, as made applicable to the States by the Fourteenth Amendment. For reasons set forth below, we agree that the mere private possession of obscene matter cannot constitutionally be made a crime.

The court below saw no valid constitutional objection to the Georgia statute, even though it extends further than the typical statute forbidding commercial sales of obscene material. It held that “[i]t is not essential to an indictment charging one with possession of obscene matter that it be alleged that such possession was `with intent to sell, expose or circulate the same.'” Stanley v. State, supra, at 261, 161 S. E. 2d, at 311. The State and appellant both agree that the question here before us is whether “a statute imposing criminal sanctions upon the mere [knowing] possession of obscene matter” is constitutional. In this context, Georgia concedes that the present case appears to be one of “first [394 U.S. 557, 560]   impression . . . on this exact point,” 3 but contends that since “obscenity is not within the area of constitutionally protected speech or press,” Roth v. United States, 354 U.S. 476, 485 (1957), the States are free, subject to the limits of other provisions of the Constitution, see, e. g., Ginsberg v. New York, 390 U.S. 629, 637 -645 (1968), to deal with it any way deemed necessary, just as they may deal with possession of other things thought to be detrimental to the welfare of their citizens. If the State can protect the body of a citizen, may it not, argues Georgia, protect his mind?

It is true that Roth does declare, seemingly without qualification, that obscenity is not protected by the First Amendment. That statement has been repeated in various forms in subsequent cases. See, e. g., Smith v. California, 361 U.S. 147, 152 (1959); Jacobellis v. Ohio, 378 U.S. 184, 186 -187 (1964) (opinion of BRENNAN, J.); Ginsberg v. New York, supra, at 635. However, neither Roth nor any subsequent decision of this Court dealt with the precise problem involved in the present case. Roth was convicted of mailing obscene circulars and advertising, and an obscene book, in violation of a federal obscenity statute. 4 The defendant in a companion case, Alberts v. California, 354 U.S. 476 (1957), was convicted of “lewdly keeping for sale obscene and indecent books, and [of] writing, composing and publishing an obscene advertisement of them . . . .” Id., at 481. None of the statements cited by the Court in [394 U.S. 557, 561]   Roth for the proposition that “this Court has always assumed that obscenity is not protected by the freedoms of speech and press” were made in the context of a statute punishing mere private possession of obscene material; the cases cited deal for the most part with use of the mails to distribute objectionable material or with some form of public distribution or dissemination. 5 Moreover, none of this Court’s decisions subsequent to Roth involved prosecution for private possession of obscene materials. Those cases dealt with the power of the State and Federal Governments to prohibit or regulate certain public actions taken or intended to be taken with respect to obscene matter. 6 Indeed, with one [394 U.S. 557, 562]   exception, we have been unable to discover any case in which the issue in the present case has been fully considered. 7   [394 U.S. 557, 563]

In this context, we do not believe that this case can be decided simply by citing Roth. Roth and its progeny certainly do mean that the First and Fourteenth Amendments recognize a valid governmental interest in dealing with the problem of obscenity. But the assertion of that interest cannot, in every context, be insulated from all constitutional protections. Neither Roth nor any other decision of this Court reaches that far. As the Court said in Roth itself, “[c]easeless vigilance is the watchword to prevent . . . erosion [of First Amendment rights] by Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests.” 354 U.S., at 488 . Roth and the cases following it discerned such an “important interest” in the regulation of commercial distribution of [394 U.S. 557, 564]   obscene material. That holding cannot foreclose an examination of the constitutional implications of a statute forbidding mere private possession of such material.

It is now well established that the Constitution protects the right to receive information and ideas. “This freedom [of speech and press] . . . necessarily protects the right to receive . . . .” Martin v. City of Struthers, 319 U.S. 141, 143 (1943); see Griswold v. Connecticut, 381 U.S. 479, 482 (1965); Lamont v. Postmaster General, 381 U.S. 301, 307 -308 (1965) (BRENNAN, J., concurring); cf. Pierce v. Society of Sisters, 268 U.S. 510 (1925). This right to receive information and ideas, regardless of their social worth, see Winters v. New York, 333 U.S. 507, 510 (1948), is fundamental to our free society. Moreover, in the context of this case – a prosecution for mere possession of printed or filmed matter in the privacy of a person’s own home – that right takes on an added dimension. For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy.

“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized man.” Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).

 

See Griswold v. Connecticut, supra; cf. NAACP v. Alabama, 357 U.S. 449, 462 (1958). [394 U.S. 557, 565]

These are the rights that appellant is asserting in the case before us. He is asserting the right to read or observe what he pleases – the right to satisfy his intellectual and emotional needs in the privacy of his own home. He is asserting the right to be free from state inquiry into the contents of his library. Georgia contends that appellant does not have these rights, that there are certain types of materials that the individual may not read or even possess. Georgia justifies this assertion by arguing that the films in the present case are obscene. But we think that mere categorization of these films as “obscene” is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.

And yet, in the face of these traditional notions of individual liberty, Georgia asserts the right to protect the individual’s mind from the effects of obscenity. We are not certain that this argument amounts to anything more than the assertion that the State has the right to control the moral content of a person’s thoughts. 8 To [394 U.S. 557, 566]   some, this may be a noble purpose, but it is wholly inconsistent with the philosophy of the First Amendment. As the Court said in Kingsley International Pictures Corp. v. Regents, 360 U.S. 684, 688 -689 (1959), “[t]his argument misconceives what it is that the Constitution protects. Its guarantee is not confined to the expression of ideas that are conventional or shared by a majority. . . . And in the realm of ideas it protects expression which is eloquent no less than that which is unconvincing.” Cf. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952). Nor is it relevant that obscene materials in general, or the particular films before the Court, are arguably devoid of any ideological content. The line between the transmission of ideas and mere entertainment is much too elusive for this Court to draw, if indeed such a line can be drawn at all. See Winters v. New York, supra, at 510. Whatever the power of the state to control public dissemination of ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.

Perhaps recognizing this, Georgia asserts that exposure to obscene materials may lead to deviant sexual behavior or crimes of sexual violence. There appears to be little empirical basis for that assertion. 9 But more important, if the State is only concerned about printed or filmed materials inducing antisocial conduct, we believe that in the context of private consumption of ideas and information we should adhere to the view that “[a]mong free men, the deterrents ordinarily to be [394 U.S. 557, 567]   applied to prevent crime are education and punishment for violations of the law . . . .” Whitney v. California, 274 U.S. 357, 378 (1927) (Brandeis, J., concurring). See Emerson, Toward a General Theory of the First Amendment, 72 Yale L. J. 877, 938 (1963). Given the present state of knowledge, the State may no more prohibit mere possession of obscene matter on the ground that it may lead to antisocial conduct than it may prohibit possession of chemistry books on the ground that they may lead to the manufacture of homemade spirits.

It is true that in Roth this Court rejected the necessity of proving that exposure to obscene material would create a clear and present danger of antisocial conduct or would probably induce its recipients to such conduct. 354 U.S., at 486 -487. But that case dealt with public distribution of obscene materials and such distribution is subject to different objections. For example, there is always the danger that obscene material might fall into the hands of children, see Ginsberg v. New York, supra, or that it might intrude upon the sensibilities or privacy of the general public. 10 See Redrup v. New York, 386 U.S. 767, 769 (1967). No such dangers are present in this case.

Finally, we are faced with the argument that prohibition of possession of obscene materials is a necessary incident to statutory schemes prohibiting distribution. That argument is based on alleged difficulties of proving an intent to distribute or in producing evidence of actual distribution. We are not convinced that such difficulties [394 U.S. 557, 568]   exist, but even if they did we do not think that they would justify infringement of the individual’s right to read or observe what he pleases. Because that right is so fundamental to our scheme of individual liberty, its restriction may not be justified by the need to ease the administration of otherwise valid criminal laws. See Smith v. California, 361 U.S. 147 (1959).

We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime. 11 Roth and the cases following that decision are not impaired by today’s holding. As we have said, the States retain broad power to regulate obscenity; that power simply does not extend to mere possession by the individual in the privacy of his own home. Accordingly, the judgment of the court below is reversed and the case is remanded for proceedings not inconsistent with this opinion.

It is so ordered.

Footnotes

[ Footnote 1 ] “Any person who shall knowingly bring or cause to be brought into this State for sale or exhibition, or who shall knowingly sell or offer to sell, or who shall knowingly lend or give away or offer to lend or give away, or who shall knowingly have possession of, or who shall knowingly exhibit or transmit to another, any obscene matter, or who shall knowingly advertise for sale by any form of notice, printed, written, or verbal, any obscene matter, or who shall knowingly manufacture, draw, duplicate or print any obscene matter with intent to sell, expose or circulate the same, shall, if such person has knowledge or reasonably should know of the obscene nature of such matter, be guilty of a felony, and, upon conviction thereof, shall be punished by confinement in the penitentiary for not less than one year nor more than five years: Provided, however, in the event the [394 U.S. 557, 559]   jury so recommends, such person may be punished as for a misdemeanor. As used herein, a matter is obscene if, considered as a whole, applying contemporary community standards, its predominant appeal is to prurient interest, i. e., a shameful or morbid interest in nudity, sex or excretion.” Ga. Code Ann. 26-6301 (Supp. 1968).

[ Footnote 2 ] Appellant does not argue that the films are not obscene. For the purpose of this opinion, we assume that they are obscene under any of the tests advanced by members of this Court. See Redrup v. New York, 386 U.S. 767 (1967).

[ Footnote 3 ] The issue was before the Court in Mapp v. Ohio, 367 U.S. 643 (1961), but that case was decided on other grounds. MR. JUSTICE STEWART, although disagreeing with the majority opinion in Mapp, would have reversed the judgment in that case on the ground that the Ohio statute proscribing mere possession of obscene material was “not `consistent with the rights of free thought and expression assured against state action by the Fourteenth Amendment.'” Id., at 672.

[ Footnote 4 ] 18 U.S.C. 1461.

[ Footnote 5 ] Ex parte Jackson, 96 U.S. 727, 736 -737 (1878) (use of the mails); United States v. Chase, 135 U.S. 255, 261 (1890) (use of the mails); Robertson v. Baldwin, 165 U.S. 275, 281 (1897) (publication); Public Clearing House v. Coyne, 194 U.S. 497, 508 (1904) (use of the mails); Hoke v. United States, 227 U.S. 308, 322 (1913) (use of interstate facilities); Near v. Minnesota, 283 U.S. 697, 716 (1931) (publication); Chaplinsky v. New Hampshire, 315 U.S. 568, 571 -572 (1942) (utterances); Hannegan v. Esquire, Inc., 327 U.S. 146, 158 (1946) (use of the mails); Winters v. New York, 333 U.S. 507, 510 (1948) (possession with intent to sell); Beauharnais v. Illinois, 343 U.S. 250, 266 (1952) (libel).

[ Footnote 6 ] Many of the cases involved prosecutions for sale or distribution of obscene materials or possession with intent to sell or distribute. See Redrup v. New York, 386 U.S. 767 (1967); Mishkin v. New York, 383 U.S. 502 (1966); Ginzburg v. United States, 383 U.S. 463 (1966); Jacobellis v. Ohio, 378 U.S. 184 (1964); Smith v. California, 361 U.S. 147 (1959). Our most recent decision involved a prosecution for sale of obscene material to children. Ginsberg v. New York, 390 U.S. 629 (1968); cf. Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676 (1968). Other cases involved federal or state statutory procedures for preventing the distribution or mailing of obscene material, or procedures for predistribution approval. See Freedman v. Maryland, 380 U.S. 51 (1965); Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963); Manual Enterprises, Inc. v. Day, 370 U.S. 478 (1962). Still another case dealt with an attempt to seize obscene material “kept for the purpose [394 U.S. 557, 562]   of being sold, published, exhibited . . . or otherwise distributed or circulated . . . .” Marcus v. Search Warrant, 367 U.S. 717, 719 (1961); see also A Quantity of Books v. Kansas, 378 U.S. 205 (1964). Memoirs v. Massachusetts, 383 U.S. 413 (1966), was a proceeding in equity against a book. However, possession of a book determined to be obscene in such a proceeding was made criminal only when “for the purpose of sale, loan or distribution.” Id., at 422.

[ Footnote 7 ] The Supreme Court of Ohio considered the issue in State v. Mapp, 170 Ohio St. 427, 166 N. E. 2d 387 (1960). Four of the seven judges of that court felt that criminal prosecution for mere private possession of obscene materials was prohibited by the Constitution. However, Ohio law required the concurrence of “all but one of the judges” to declare a state law unconstitutional. The view of the “dissenting” judges was expressed by Judge Herbert:

“I cannot agree that mere private possession of . . . [obscene] literature by an adult should constitute a crime. The right of the individual to read, to believe or disbelieve, and to think without governmental supervision is one of our basic liberties, but to dictate to the mature adult what books he may have in his own private library seems to the writer to be a clear infringement of his constitutional rights as an individual.” 170 Ohio St., at 437, 166 N. E. 2d, at 393.

 

Shortly thereafter, the Supreme Court of Ohio interpreted the Ohio statute to require proof of “possession and control for the purpose of circulation or exhibition.” State v. Jacobellis, 173 Ohio St. 22, 27-28, 179 N. E. 2d 777, 781 (1962), rev’d on other grounds, 378 U.S. 184 (1964). The interpretation was designed to avoid the constitutional problem posed by the “dissenters” in Mapp. See State v. Ross, 12 Ohio St. 2d 37, 231 N. E. 2d 299 (1967).

Other cases dealing with nonpublic distribution of obscene material or with legitimate uses of obscene material have expressed similar reluctance to make such activity criminal, albeit largely on statutory grounds. In United States v. Chase, 135 U.S. 255 (1890), the Court held that federal law did not make criminal the mailing of a private sealed obscene letter on the ground that the law’s purpose was to purge the mails of obscene matter “as far as was consistent with the rights reserved to the people, and with a due regard to the security of private correspondence . . . .” 135 U.S., at 261 . The [394 U.S. 557, 563]   law was later amended to include letters and was sustained in that form. Andrews v. United States, 162 U.S. 420 (1896). In United States v. 31 Photographs, 156 F. Supp. 350 (D.C. S. D. N. Y. 1957), the court denied an attempt by the Government to confiscate certain materials sought to be imported into the United States by the Institute for Sex Research, Inc., at Indiana University. The court found, applying the Roth formulation, that the materials would not appeal to the “prurient interest” of those seeking to import and utilize the materials. Thus, the statute permitting seizure of “obscene” materials was not applicable. The court found it unnecessary to reach the constitutional questions presented by the claimant, but did note its belief that “the statement . . . [in Roth] concerning the rejection of obscenity must be interpreted in the light of the widespread distribution of the material in Roth.” 156 F. Supp., at 360, n. 40. See also Redmond v. United States, 384 U.S. 264 (1966), where this Court granted the Solicitor General’s motion to vacate and remand with instructions to dismiss an information charging a violation of a federal obscenity statute in a case where a husband and wife mailed undeveloped films of each other posing in the nude to an out-of-state firm for developing. But see Ackerman v. United States, 293 F.2d 449 (C. A. 9th Cir. 1961).

[ Footnote 8 ] “Communities believe, and act on the belief, that obscenity is immoral, is wrong for the individual, and has no place in a decent society. They believe, too, that adults as well as children are corruptible in morals and character, and that obscenity is a source of corruption that should be eliminated. Obscenity is not suppressed primarily for the protection of others. Much of it is suppressed for the purity of the community and for the salvation and welfare of the `consumer.’ Obscenity, at bottom, is not crime. Obscenity is sin.” Henkin, Morals and the Constitution: The Sin of Obscenity. 63 Col. L. Rev. 391, 395 (1963).

[ Footnote 9 ] See, e. g., Cairns, Paul, & Wishner, Sex Censorship: The Assumptions of Anti-Obscenity Laws and the Empirical Evidence, 46 Minn. L. Rev. 1009 (1962): see also M. Jahoda, The Impact of Literature: A Psychological Discussion of Some Assumptions in the Censorship Debate (1954), summarized in the concurring opinion of Judge Frank in United States v. Roth, 237 F.2d 796, 814-816 (C. A. 2d Cir. 1956).

[ Footnote 10 ] The Model Penal Code provisions dealing with obscene materials are limited to cases of commercial dissemination. Model Penal Code 251.4 (Prop. Official Draft 1962); see also Model Penal Code 207.10 and comment 4 (Tent. Draft No. 6, 1957); H. Packer, The Limits of the Criminal Sanction 316-328 (1968); Schwartz, Morals Offenses and the Model Penal Code, 63 Col. L. Rev. 669 (1963).

[ Footnote 11 ] What we have said in no way infringes upon the power of the State or Federal Government to make possession of other items, such as narcotics, firearms, or stolen goods, a crime. Our holding in the present case turns upon the Georgia statute’s infringement of fundamental liberties protected by the First and Fourteenth Amendments. No First Amendment rights are involved in most statutes making mere possession criminal.

Nor do we mean to express any opinion on statutes making criminal possession of other types of printed, filmed, or recorded materials. See, e. g., 18 U.S.C. 793 (d), which makes criminal the otherwise lawful possession of materials which “the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation . . . .” In such cases, compelling reasons may exist for overriding the right of the individual to possess those materials.

MR. JUSTICE BLACK, concurring.

I agree with the Court that the mere possession of reading matter or movie films, whether labeled obscene or not, cannot be made a crime by a State without violating [394 U.S. 557, 569]   the First Amendment, made applicable to the States by the Fourteenth. My reasons for this belief have been set out in many of my prior opinions, as for example, Smith v. California, 361 U.S. 147, 155 (concurring opinion), and Ginzburg v. United States, 383 U.S. 463, 476 (dissenting opinion).

MR. JUSTICE STEWART, with whom MR. JUSTICE BRENNAN and MR. JUSTICE WHITE join, concurring in the result.

Before the commencement of the trial in this case, the appellant filed a motion to suppress the films as evidence upon the ground that they had been seized in violation of the Fourth and Fourteenth Amendments. The motion was denied, and the films were admitted in evidence at the trial. In affirming the appellant’s conviction, the Georgia Supreme Court specifically determined that the films had been lawfully seized. The appellant correctly contends that this determination was clearly wrong under established principles of constitutional law. But the Court today disregards this preliminary issue in its hurry to move on to newer constitutional frontiers. I cannot so readily overlook the serious inroads upon Fourth Amendment guarantees countenanced in this case by the Georgia courts.

The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The purpose of these clear and precise words was to guarantee to the people of this Nation that they should forever be secure from the general searches and unrestrained seizures that had been a hated hallmark of colonial rule under the notorious writs of assistance of the British Crown. See Stanford v. Texas, 379 U.S. 476, 481 . This most basic of Fourth Amendment guarantees was frustrated [394 U.S. 557, 570]   in the present case, I think, in a manner made the more pernicious by its very subtlety. For what happened here was that a search that began as perfectly lawful became the occasion for an unwarranted and unconstitutional seizure of the films.

The state and federal officers gained admission to the appellant’s house under the authority of a search warrant issued by a United States Commissioner. The warrant described “the place to be searched” with particularity. 1 With like particularity, it described the “things to be seized” – equipment, records, and other material used in or derived from an illegal wagering business. 2 And the warrant was issued only after the Commissioner had been apprised of more than adequate probable cause to issue it. 3

There can be no doubt, therefore, that the agents were lawfully present in the appellant’s house, lawfully authorized to search for any and all of the items specified in the warrant, and lawfully empowered to seize any such [394 U.S. 557, 571]   items they might find. 4 It follows, therefore, that the agents were acting within the authority of the warrant when they proceeded to the appellant’s upstairs bedroom and pulled open the drawers of his desk. But when they found in one of those drawers not gambling material but moving picture films, the warrant gave them no authority to seize the films.

The controlling constitutional principle was stated in two sentences by this Court more than 40 years ago:

“The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.” Marron v. United States, 275 U.S. 192, 196 .

This is not a case where agents in the course of a lawful search came upon contraband, criminal activity, or criminal evidence 5 in plain view. For the record makes clear that the contents of the films could not be determined by mere inspection. And this is not a case that presents any questions as to the permissible scope of a search made incident to a lawful arrest. For the appellant had not been arrested when the agents found the films. After finding them, the agents spent some 50 minutes exhibiting them by means of the appellant’s projector in another upstairs room. Only then did the agents return downstairs and arrest the appellant.

Even in the much-criticized case of United States v. Rabinowitz, 339 U.S. 56 , the Court emphasized that “exploratory [394 U.S. 557, 572]   searches . . . cannot be undertaken by officers with or without a warrant.” Id., at 62. This record presents a bald violation of that basic constitutional rule. To condone what happened here is to invite a government official to use a seemingly precise and legal warrant only as a ticket to get into a man’s home, and, once inside, to launch forth upon unconfined searches and indiscriminate seizures as if armed with all the unbridled and illegal power of a general warrant.

Because the films were seized in violation of the Fourth and Fourteenth Amendments, they were inadmissible in evidence at the appellant’s trial. Mapp v. Ohio, 367 U.S. 643 . Accordingly, the judgment of conviction must be reversed.

[ Footnote 1 ] “[T]he premises known as 280 Springside Drive, S. E., two story residence with an annex on the main floor constructed of brick and frame, in Atlanta, Fulton County, Georgia, in the Northern District of Georgia . . . .”

[ Footnote 2 ] “[B]ookmaking records, wagering paraphernalia consisting of bet slips, account sheets, recap sheets, collection sheets, adding machines, money used in or derived from the wagering business, records of purchases, records of real estate and bank transactions, the money for which was derived from the wagering business, and any other property used in the wagering business, which are being used and/or have been used in the operation of a bookmaking business or represent the fruits of a bookmaking business being operated in violation of Sections 4411, 4412 and 7203 IRC of 1954.”

[ Footnote 3 ] Before the Commissioner were no less than four lengthy and detailed affidavits, setting out the grounds for the affiants’ reasonable belief that the appellant was engaged in an illegal gambling enterprise, and that the paraphernalia of his trade were concealed in his house.

[ Footnote 4 ] The fact that almost no gambling material was actually found has no bearing, of course, upon the validity of the search. The constitutionality of a search depends in no measure upon what it brings to light. Byars v. United States, 273 U.S. 28, 29 .

[ Footnote 5 ] See Warden v. Hayden, 387 U.S. 294 . [394 U.S. 557, 573]

BRADLEY v. FISHER. December Term, 1871 80 U.S. 335, 1871 WL 14737 (U.S.Dist.Col.), 20 L.Ed. 646, 13 Wall. 335 Supreme Court of the United States

80 U.S. 335, 1871 WL 14737 (U.S.Dist.Col.), 20 L.Ed. 646, 13 Wall. 335

Supreme Court of the United States

BRADLEY
v.
FISHER.

December Term, 1871

**1 ERROR to the Supreme Court of the District of Columbia.

 

This was an 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 wilful, 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, *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 offence 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 *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.

 

**2 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 court-house; and the great body of auditors, jurors, witnesses, clerks, and officers of the court, and the jury impanelled, and the prisoner on trial had left the court-house; and so the declaration proceeded to say, ‘the said judge wilfully, maliciously, corruptly, and unlawfully fabricated the said order to give color and pretence 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 *339 the enjoyment of his office and from his practice as an attorney in the courts of the county and district, &c., &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 offences 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.

 

**3 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 *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 *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.

 

**4 To understand one point of the case the better, it may be mentioned that in Ex parte Bradley,FN1 this court granted a peremptory mandamus to the Supreme Court of the District to restore Mr. Bradley to his office of attorney and counsellor 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 3d, 1863.

 

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.*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 defence.

 

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.

 

West Headnotes

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The obligation which attorneys assume when they are admitted to the bar 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 off the attorney from the rolls of attorneys practicing in the court.
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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; otherwise, as to acts done by them in the clear absence of all jurisdiction over the subject-matter.

 

FN1 7 Wallace, 364.

**5 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,’FN2 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 3d, 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.’

 

FN2 16 Stat. at Large, 160.

It may be well also, as counsel in argument refer to it, to state that an act of Congress of March 2d, 1831,FN3 enacted:

 

FN3 4 Id. 487.

‘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 *342 the misbehavior of any person or persons in the presence of the said courts, or so near thereto as to obtruct 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.’
Messrs. J. M. Harris and R. T. Merrick, for the plaintiff in error:

1. By the act of Congress of June, 1870, the judgments, decrees, and orders of the Criminal Court of the District are to be deemed the judgments, decrees, and orders of the Supreme Court. All the effects, therefore, of the decision by this court of the case Ex parte Bradley, and argument that the order of the Criminal Court is not an order removing or disbarring the plaintiff from the Supreme Court, fall to the ground, in virtue of this act, and irrespectively of other reasons which might be adduced.

 

2. The judge relies in effect upon the order of court made by him. The plaintiff in reply alleges that the judge has himself fabricated the statement of facts set forth in that order-made it falsely and fraudulently-and by such fabircation, and by a false and fraudulent statement that certain things which never took place at all, did take place, corruptly sought to give himself jurisdiction in the case where he has acted. Now, the evidence which the plaintiff offered and which the court refused, tended directly to prove that the whole statement ordered by the judge to be put on record, was false and fabricated; and that it was made but to give color to a usurped jurisdiction; in other words, that the statement was fraudulently made. Certainly the plaintiff had a right to show such facts; for the judge had no power or jurisdiction to make the order complained of, if the matters recited never occurred. Under such circumstances, a judge, knowing the facts, is liable, even though he did not act corruptly;FN4 and à fortiori is liable in a case where he did so act.

 

FN4 Houlden v. Smith, 14 Queen’s Bench, 841.*343

**6 3. The courts of the District are, of course, courts of the United States; and whether the proceeding for which this action is brought, be regarded as a punishment for contempt, or as a punishment for alleged misbehavior in office-a matter which the form of the order leaves quite uncertain-it was in the face of the statute of March 2d, 1831. This is undoubtedly so if it was for contempt; and even if it was for misbehavior in office the statute would still seem to apply; for it prohibits a summary proceeding except in the cases which the act specifies; cases which all look to misconduct that interferes with the administration of justice. But for a man who may have been once admitted to the bar, to threaten out of court, with assault, another man who happens to be a judge, and so occasionally in court, is neither misbehavior in office nor a contempt of court.

 

4. But if the offence for which Mr. Bradley was disbarred was misbehavior in office, and if that be not within the statute of March 2d, 1831, still, undoubtedly, he should have had notice and an opportunity of defending himself. Admit that the court may proceed summarily, still summary jurisdiction is not arbitrary power; and a summons and opportunity of being heard is a fundamental principle of all justice.FN5 The principle has been declared by this court in Ex parte Garland,FN6 to be specifically applicable to the case of disbarring an attorney; and so declared for obvious reasons. Without then having summoned Mr. Bradley, and having given to him an opportunity to be heard, the court had no jurisdiction of Mr. Bradley’s person or of any case relating to him. It is not enough that it have jurisdiction over the subject-matter of the complainant generally; it must have jurisdiction over the particular case, and if it have not, the judgment is void ab initio.FN7 The whole subject is set forth in Smith’s Leading Cases,FN8 where the authorities are collected *344 and the principle deduced, that when the record shows that the court has proceeded without notice to the party condemned, the judgment will be void, and may be disregarded in any collateral proceeding.

 

FN5 Rex v. Chancellor of Cambridge, 2 Lord Raymond, 1348.

FN6 4 Wallace, 378.

FN7 Mitchell v. Foster, 12 Adolphus & Ellis, 472; United States v. Arredondo, 6 Peters, 709; Walden v. Craig’s Heris, 14 Id. 154.

FN8 Vol. 1, p. 1023, edition of 1866, Crepps v. Durden.

Mr. A. G. Riddle and W. A. Cook, contra.

Mr. Justice FIELD delivered the opinion of the court.

 

**7 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 *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,FN9 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.

 

FN9 Ex parte Bradley, 7 Wallace, 364.

**8 This point is distinctly raised by the special plea of the defendant, in which he sets up that at the time the order *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 offences 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.FN10 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.

 

FN10 16 Stat. at Large, 160.

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 *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 every one 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.FN11

 

FN11 Justice Mayne, in Taaffe v. Downes, reported in a note to 3d Moore’s Privy Council, 41.

**9 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 wellordered 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.’FN12

 

FN12 Yates v. Lansing, 5 Johnson, 291.

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,FN13 where it was laid down that the judges of the realm could not be drawn in question for any supposed corruption impeaching *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.’

 

FN13 12 Coke, 25.

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.

 

**10 *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,FN14 and the point here was adjudged in the recent case of Fray v. Blackburn,FN15 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.FN16

 

FN14 2 Cushing, 68.

FN15 3 Best & Smith, 576.

FN16 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 bonâ 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.’

**11 *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,FN17 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 *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.

 

FN17 7 Wallace, 523.

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 *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 offences, jurisdiction over the subject of offences 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 offences committed within a certain district, should hold a particular act to be a public offence, which is not by the law made an offence, and proceed to the arrest and trial of a party charged with such act, or should sentence a party convincted 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.

 

**12 The distinction here made between acts done in excess *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. FN18 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.FN19

 

FN18 3 Maule & Selwyn, 411.

FN19 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.

*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.

 

**13 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 defence. 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 *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 *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 offence 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.’

 

**14 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 offence 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, *357 and affording him opportunity for explanation, or defence, 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.

 

Mr. Justice DAVIS, with whom concurred Mr. Justice CLIFFORD, dissenting.

 

**14 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.
U.S.,1871
Bradley v. Fisher
80 U.S. 335, 1871 WL 14737 (U.S.Dist.Col.), 20 L.Ed. 646, 13 Wall. 335

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Categories: CaseLaws