"That J. B. Wall, an attorney of this court, did on the sixth day of the present month, engage in and with an unlawful, tumultuous and riotous gathering, he advising and encouraging thereto, take from the jail of Hillsborough county and hang by the neck until he was dead, one John, otherwise unknown, thereby showing an utter disregard and contempt for the law and its provisions," etc. The denial of this charge was a mere negative pregnant, amounting only to a denial of the attending circumstances and legal consequences ascribed to the act. The respondent denied "counseling, advising, encouraging or assisting an unlawful, tumultuous and riotous gathering or mob in taking one John from the jail of Hillsborough county, and causing his death by hanging, in contempt and defiance of the law." He was not required to answer under oath; and did not do so. Yet free from this restriction, he did not come out fully and fairly and deny that he was engaged in the transaction at all; but only that he did not engage in it with the attendant circumstances and legal consequences set out in the charge. Even the name of the victim is made a material part of the traverse.

Upon such a special plea as this, we think the court was justified in regarding the denial as unsatisfactory. It was really equivalent to an admission of the substantial matter of the charge.

Nevertheless the marshal of the court was called as a witness, and clearly proved the truth of the charge, and no evidence was offered in rebuttal. The case, as it stood before the court, was as clear of all doubt as if the petitioner had expressly admitted his participation in the transaction.

It is necessary however that we should examine the authorities on the question raised by the petitioner, as to the power of the court to proceed against him without a previous conviction upon an indictment.

It has undoubtedly been held in some of the cases that where the offense is indictable, and the facts are not admitted, a regular conviction must be had before the court will exercise its summary jurisdiction to strike the name of the party off the roll. At first view this was supposed to be the purport of Lord Denman's judgment in the anonymous case reported in 5 Barn. & Ad. 1088. That was a case of professional misconduct in pecuniary transactions. Lord Denman is reported as saying: "The facts stated amounted to an indictable offense. Is it not more satisfactory that the case should go to a trial? I have known applica- | tions of this kind, after conviction, upon charges involving professional misconduct; but we should be cautious of putting parties in a situation where by answering they might furnish a case against themselves on an indictment to be afterward preferred. On an application calling upon an attorney to answer the matters of an affidavit, it is not usual to grant the rule if an indictable offense is charged." And the Solicitor-General, Sir John Campbell, who made the application in that case, being requested to look at the authorities, afterward stated that he could find no precedent for it. In that case however the rule applied for was one requiring the attorney to answer charges on oath. On a similar application in a subsequent case charging perjury and fraud. Anon., 3 Nev. & Perry, 389, Lord Deuman said: "Would not an indictment for perjury lie upon these facts? We are not in the habit of interfering in such a case, unless there is something amounting to an admission on the part of the attorney, which would render the intervention of a jury unnecessary."

In another anonymous case in the Exchequer, 2 Dowl. Prac. Ca. 110, where an attorney had been sued in an action at law for an aggravated libel, and a verdict had been rendered against him with only one shilling damages; on an application being then made

to strike him off the roll, Lord Lyndhurst said: "Have you any instance of such an application on a verdict for the same criminal act, but for which no criminal proceedings have been taken?" and intimated that if there was any such case, the rule would be granted, but added: "Here there was conflicting evidence at the trial, and it is doubtful whether the publication was brought home to the defendant; and the jury seem to have so considered it;" and the rule was refused.

But this matter was carefully reviewed by the Court of Exchequer in the subsequent case of Stephens v. Hill, 10 Mees. & Wels. 28, where motion was made against an attorney who had conspired with others to induce a witness for the opposite party to absent himself from a trial, giving him money, etc. It was objected that the application to strike from the roll could not be heard on these charges without a conviction, inasmuch as a conspiracy is an indictable offense. Lord Abinger took a distinction between a rule to show cause why an attorney should not be struck off the roll, and a rule calling on him to answer the matters of an affidavit with a view to strike him off the roll. The latter course he conceded would be improper, if the offense was indictable, because it would compel the attorney to criminate himself; but not so the former, for he might clear himself without answering under oath; and that this was all that Lord Denman meant in the case before him. Lord Abinger said that as long as he had known Westminster Hall, he had never heard of such a rule as that an attorney might not be struck off the role for misconduct in a cause merely because the offense imputed to him was of such a nature that he might have been indicted for it; but he said that in the case of applications calling upon an attorney to answer the matters of an affidavit, he had known Lord Kenyon and Lord Ellenborough frequently say, you cannot have a rule for this purpose, because the misconduct you impute to the man is indictable; but you may have one to strike him off the roll. After noticing and explaining the language attributed to Lord Denman, as before stated, Lord Abinger adds: "If indeed a case should occur where an attorney has been guilty of some professional misconduct for which the court by its summary jurisdiction might compel him to do justice, and at the same time has been guilty of something indictable in itself, but not arising out of the cause, the court will not inquire into that with a view of striking him from the roll, but would leave the party aggrieved to his remedy by a criminal prosecution."

This expression about leaving the party aggrieved to his remedy by a criminal prosecution, is frequently found in the English cases, and has reference to the practice in that country of regarding the party injured by the perpetration of a crime as the proper person to prosecute the offender; and one indeed upon whom a duty in some sort rested to institute such prosecution. The court would therefore hesitate to take any summary action against the offender which might remove the inducements the injured party would other wise have for proceeding criminally against him, aud thus interfere with the course of justice, In this country the prosecution of criminal offenses is generally committed to the charge of a public officer, and suffi cient emolument is attached to the duty of prosecution to secure its faithful performance. The same reason therefore does not exist here as in England, for leaving it to the injured party to prosecute for the criminal offense. So far as the offender himself is concerned, it is true, the reason is equally strong against compelling him to answer under oath charges preferred against him, and in favor of giving him a trial by jury in all cases of doubt or of conflicting evidence. That a reluctance to interfere with the in

centive to prosecute criminally in these cases operated strongly upon the judicial mind in England, is manifest from the fact that after a prosecution had been made, and the duty of the injured party had been performed, the courts never hesitated to strike the ac cused from the roll, if found guilty by a jury, even though judgment against him had been arrested or reversed, or the offense had been pardoned or condoned; thus showing that it is not a technical conviction which is required, but a fair effort on the part of the prosecutor to bring the offender to justice; coupled also with the fact that a jury is the most suitable tribunal for passing upon a question of fact depending upon conflicting evidence.

Some expressions in the cases cited, including the remarks made by Lord Abinger in Stephens v. Hill, seem to imply that the summary jurisdiction will not be exercised where the charges made against an attorney affect only his general character as such, and do not amount to malpractice in a particular cause. But subsequent decisions are to the effect that it is properly extended to cases affecting his general character also. Thus in Re Blake, 3 Ellis and Ellis, 34, an attorney was struck from the roll for having improperly collected the money due on a mortgage which he had pledged as collateral security for a loan, and which he borrowed from the pledgee on some false pretense. On a rule to show cause and reference to the master, the facts were found to be truly charged; and although he was not acting as attorney in the matter, the court suspended his certificate for two years, on the general ground, (as stated by Lord Ch. Just. Cockburn), that where an attorney is shown to have been guilty of gross fraud, although not such as to render him liable to an indictment, nor committed by him while the relation of attorney and client was subsisting between him and the person defrauded, or in his character as an attorney, the court will not allow suitors to be exposed to gross fraud and dishonesty at the hands of one of its officers. And in a subsequent case, in Re Hill, L. R., 3 Q. B. 543, where an attorney acting, not as such, but as clerk to a firm of attorneys, appropriated to his own use money which came to his hands on the sale of an estate; on a motion to strike bis name from the roll, it was objected that as his offense was indictable, a conviction was necessary before this proceeding could be had. Lord Ch. Just. Cockburn said; "No case has so far as I am aware, come before the court under the precise circumstances under which this case presents itself, namely,of an act of delinquency committed by an attorney's clerk, who at the same time is an attorney, though at that time not acting as such; but still, I think on every principle of justice, we ought not the less to entertain the application. ** * * If the delinquent had been proceeded against criminally upon the facts admitted by him, it is plain that he would have been convicted of embezzlement, and upon that conviction being brought before us, we should have been bound to act. If there had been a conflict of evidence upon the affidavits, that might be a very sufficient reason why the court should not interfere until the conviction had taken place; but here we have the person against whom the application is made admitting the facts." Mr. Justice Blackburn, in the same case, said: "I think when we are called upon in the exercise of our equitable jurisdiction, to order an attorney to perform a contract to pay money, or to fulfill an undertaking, that we have jurisdiction only if the undertaking or the contract is made in his character of attorney, or so connected with his character of attorney as to bring it within the power of the court to require that their officer shall behave well as an officer. But where there is a matter which would subject the

* Rex v. Southerton, 6 East, 126; In Re King, 8 Q. B. 129; In Re Garrett, 18 C. B. 402.

person in question to a criminal proceeding, in my opinion a different principle must be applied. We are to see that the officers of the court are proper persons to be trusted by the court with regard to the interests of suitors, and we are to look to the character and position of the persons, and judge of the acts committed by them, upon the same principle as if we were considering whether or not a person is fit to become an attorney. * * * It should always be considered whether the particular wrong done is connected with the character of an attorney. The offense morally may not be greater, but still if done in the character of an attorney, it is more dangerous to suitors, and should be more severely marked. I agree that where it is denied that a criminal offense has been committed, the court ought not to decide on affidavits a question which ought to be tried by a jury."

This case is important as showing the latest consideration of the question by the English courts, and by the most eminent judges of those courts.

The rule to be deduced from all the English authorities seems to be this: that an attorney will be struck off the roll if convicted of felony, or if convicted of a misdemeanor involving want of integrity, even though the judgment be arrested or reversed for error; and also (without a previous conviction) if he is guilty of gross misconduct in his profession, or of acts, which though not done in his professional capacity, gravely affect his character as an attorney; but in the latter case, if the acts charged are indictable, and are fairly denied, the court will not proceed against him until he has been convicted by a jury; and will in no case compel him to answer under oath to a charge for which he may be indicted.

This rule has in the main been adopted by the courts of this country; though special proceedings are provided for by statute in some of the States, requiring a formal information under oath to be filed, with regular proceedings and a trial by jury. The cases are quite numerous in which attorneys for malpractice or other misconduct in their official character and for other acts which showed them to be unfit persons to practice as attorneys, have been struck from the roll upon a summary proceeding without any previous conviction of a criminal charge. See, amongst others, case of Niven, 1 Wheeler's Crim. Ca. 337, note; case of Burr, 1 id. 503; S. C., 2 Cranch C. C. Rep. 379; Re Peterson, 3 Paige, 510; Ex parte Brown, 1 How. (Miss). 303; Ex parte Mills, 1 Mich. 392; Ex parte Secombe, 19 How. 9; Re Percy, 36 N. Y. 651; Dickens' case, 67 Penn. 169; Re Hirst, 9 Phila. Rep. 216; Baker v. Commonwealth, 10 Bush, 592; Penobscott Sanborn v. Kimball, 64 Me. 140; Matter of Wool, 36 Mich. 299: People v. Goodrich, 79 Ill. 148; Delano's case, 58 N. H. 5; Ex parte Walls, 64 Ind. 461; Matter of Eldridge, 82 N. Y. 161.

But where the acts charged against an attorney are not done in his official character, and are indictable, and not confessed, there has been a diversity of practice on the subject; in some cases it being laid down that there must be a regular indictment and conviction before the court will proceed to strike him from the roll; in others, such previous conviction being deemed unnecessary.

The former view is taken, or seems to be assumed, in the cases we will now cite.

In an anonymous case, reported in 2 Halst. 162, (1824), where the charge was larceny, the court refused the rule to strike off the roll, because the offense was indictable, and there had been no conviction.

In State v. Foreman, 3 Mo. 412, the court refused to disbar an attorney for passing counterfeit money, knowing it to be countereit, and escaping from prison before being convicted therefor; the ground of refusal being that it was not a case within the Missouri

statute, which required a conviction. Of course being governed by the statute, this case is not in point.

In Fisher's case, 6 Leigh. 619, 1835, Fisher commented to a jury in a manner which the judge deemed grossly unprofessional and disrespectful to the court; and on the next day after reciting the circumstances made an order suspending his license for twelve months. This order was reversed by the Court of Appeals on the ground that the party proceeded against must be regularly prosecuted by indictment or information, and found guilty by a jury. But as this decision was based upon a statute of Virginia, prescribing the course of proceeding, it is no authority on the point in question.

In State v. Chapman, 1 Ohio, 430, an attorney had been charged with theft, and brought an action of slander therefor; the defendant pleaded the truth in justification, and obtained a verdict establishing his defense. Upon this a rule was granted against the attorney to show cause why he should not be struck off the roll. He proved explanatory circumstances, and the court held held that the verdict in the civil action was not sufficient to establish the charge of larceny, and discharged the rule.

In Beene v. State, 22 Ark. 149, where the defendant had made an unwarrantable and atrocious personal attack upon the Circuit judge for his action as judge, on application of the county bar to strike his name from the roll, the rule was granted; but the Supreme Court of Arkansas reversed the order on the ground that the proceedings were irregular, and not in pursuance of the statute, which required regular charges to be exhibited, verified by affidavit, and a time fixed for hearing. The court also held that where the offense is indictable, there must be a regular conviction before the party can be struck off the roll; if not indictable he was entitled to be tried by a jury. This case seems to have been decided upon the statutes of Arkansas.

*

In Ex parte Steinman, 95 Penn. 229, the respondents published a libel against the judges of the Quarter Sessions of Lancaster county, Pennsylvania, accusing them of political motives in allowing a defendant to be acquitted. On being cited to show cause why they should not be struck off the roll, they took the ground, amongst other things, that they were charged with an indictable offense, and were entitled to a trial by jury. The court having made the rule absolute, they appealed, and the Supreme Court of Pennsylvania reversed the order. Chief Justice Sharswood, in delivering the opinion of the court, said: "No question can be made of the power of a court to strike a member of the bar from the roll for official misconduct. * * We do not mean to say that there may not be cases of misconduct not strictly professional, which would clearly show a person not to be fit to be an attorney, nor fit to associate with honest men. Thus, if he was proved to be a thief, a forger, a perjurer, or guilty of other offenses of the crimen falsi. But no one, we suppose, will contend that for such an offense he can be summarily convicted and disbarred by the court without a formal indictment, trial, and conviction by a jury, or upon confession in open court." Reference was then made to a provision in the bill of rights of the Pennsylvania Constitution of 1874, that "no con. conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers, etc., where the fact that such publication was not maliciously or negligently made, shall be established to the satisfaction of the jury;" and it was held that this provision, at all events, entitled the parties to a jury trial.

The cases now cited do undoubtedly hold, that where the offense charged is indictable and is committed outside of the attorney's professional employment or character, and is denied by him, a conviction

by a jury should be had before the court will take action for striking his name from the roll.

There are other cases however in which it is held that a previous conviction is not necessary.

In case of Burr, 1 Wheel. Cr. Cas. 503; S. C., 2 Cranch's C. C. 379, the Circuit Court of the District of Columbia struck Burr off the roll on charges made by Mr. Key of various instances of malpractice, and also of dishonest conduct in procuring deeds of property from persons in distress, etc. Burr objected amongst other things, that he was entitled to a trial by jury. The court examined witnesses, who were cross-examined by the defendant, and Chief Justice Cranch delivered an elaborate opinion, concluding by making the rule absolute for disbarring the accused, holding that proceedings by attachment, as for contempt and to purify the bar of unworthy members, are not within those provisions of the Constitution which guarantee a trial by jury. This case was brought to the attention of this court on an application for a mandamus to compel the Circuit Court to restore Burr to the bar, and the writ was refused. The court, by Chief Justice Marshall, expressed a disinclination to interpose unless the conduct of the court below was irregular or flagrantly improper; as where it had exceeded its power or decided erroneously on the testimony, and upon the testimony it would be unwilling to interpose where any doubt existed.

Fields v. State, Mart. & Y. 168, was the case of a constable, but placed upon the same ground as that of attorneys, and the charge was extortion. The Supreme Court of Tennessee, by Catron, Justice, held that a previous conviction was not necessary to enable the court below to suspend from office; that the constitutional privilege of trial by jury for crime does not apply to prevent courts from punishing its officers for contempt, and to regulate them or remove them in particular cases; that removal from office for an indictable offense is no bar to an indictment; that it is a proceeding in its nature civil, and collateral to any criminal prosecution by indictment; and that even if acquitted by a jury, the party could be removed if the court discovered from the facts proved on the trial that he was guilty of corrupt practices.

In the subsequent case of Smith v. State, 1 Yerg. 228, the charge was that the attorney had accepted a challenge in Tennessee to fight a duel, and had fought with and killed his antagonist in Kentucy, where an indictment had been found against him. He demurred to the charge, and judgment was given against him on the demurrer, that his name be struck from the roll. The Supreme Court of Tennessee held the charge to be be sufficient; but that instead of receiving a demurrer, the Circuit Court should have proceeded to take the proofs to ascertain the truth of the charge. The court, by Justice Catron, said: "The" principle is almost universal in all governments, that the power which confers an office has also the right to remove the officer for good cause; the county court, constables, etc.; the Senate, officers elected by the Legislature and people; in all these cases the tribunal removing is of necessity the judge of the law and fact, to ascertain which, every species of evidence can be heard, legal in its character, according to common-law rules, and consistent with our Constitution and laws. This court, the Circuit Court, or the County Court, on a motion to strike an attorney from the rolls, has the same right, growing out of a similar necessity, to examine evidence of the facts, that the Senate of the State has when trying an impeachment. * * * The attorney may answer the charges in writing if he chooses, when evidence will be heard to support or to resist them; or if he does not answer, still the charges must be proved or confessed by the defendant, before he can be stricken out of the roll," The cause was

thereupon remanded to the Circuit Court to hear the proofs; and it was declared that if the facts were proved as charged, it would be amply sufficient to authorize that court to strike the defendant from the roll, even though there had been no law in Tennessee for the suppression of duelling.

Here it will be observed there was no conviction; nothing but an indictment found in another State; and yet the Supreme Court of Tennessee held that the court below might lawfully proceed with the case.

In Perry v. State, 3 Greene (Iowa), 550, there were charges of misconduct as an attorney, and of perjury. The charge was dismissed for want of certainty; but as to the charge of false swearing, which it was contended could not be set up without a previous conviction, the court said that a conviction was not necessary.

In Re Percy, 36 N. Y. 651, an attorney was struck off the roll on the ground that his general reputation was bad, that he had been several times indicted for perjury, one or two of the indictments being still pending, and that he was a common mover and maintainer of suits on slight and frivolous pretexts. The order was affirmed on appeal. Some of the offenses charged

in this case were of an indictable character, and one point raised on the appeal was that the court has no right to call upon an attorney to answer such charges, because it compels him to give evidence against himself. But to this the court answered that he is not compelled to be sworn, but may introduce evidence tending to show his innocence.

In Re Kimball, 64 Me. 140, an attorney was accused of misconduct, both in his professional character, and otherwise, obtaining money by false pretenses, and the like. He had also, many years before, been convicted of forgery of a deposition used in court, but had been pardoned. It was held that he was an unfit person to be an attorney, and he was struck from the roll. In this case indictable offenses of which the party had not been regularly convicted were embraced in the charges against him.

In Delano's case, 58 N. H. 5, an attorney being collector of taxes for the town appropriated the money to his own use, intending to return it; but failing to do so, he was struck from the roll. The offense in this case was clearly of an indictable character, and no conviction had been obtained against him in a criminal proceeding.

In Matter of Wool, 36 Mich. 299, a bill in equity having been filed against an attorney charging him with procuring a deed to himself by forgery or substitution of a paper, and a decree having been made against him, the court entered an order to show cause why he should not be struck from the roll, allowing him to present affidavits in exculpation; but no sufficient cause being shown against the rule, it was made absolute. Here was an indictable offense, and no previous conviction; yet the court upon the evidence it had before it, struck the party's name from the roll.

In Ex parte Walls, 64 Ind. 461, the charge was of forging an affidavit to obtain a change of venue in a cause pending in the court. Special proceedings were had under the statute of Indiana, and the party was struck off the roll. On error brought, it was objected that he should have been first regularly convicted of the crime by a prosecution on the part of the State. The court held that this is only true when the object is to inflict punishment, but not when it is to disbar the party, any more than when forgery is proved as a defense in a civil suit; that whilst a conviction would have authorized a disbarment, the proceeding to disbar might precede the criminal prosecution. This case, it is true, was for malpractice as an attorney, and therefore may not be strictly in point; but the

ground taken by the court was general, and applicable to all cases for which an attorney may be disbarred. In the recent case of People v. Appleton, 15 Chic. Leg. News, 241, where the charge against an attorney was for disposing of property held by him as a trustee, and appropriating the proceeds to his own use, but was not made out to the satisfaction of the court; it was observed however that whilst as a general rule if an attorney is guilty of misconduct in his private character, and not in his official character as attorney, relief can only be obtained by a prosecution in a proper court, at the suit of the party injured, yet that "it is not to be held that there are no exceptions; that there are not cases in which an attorney's misconduct in his private capacity merely may be of so gross a character that the court will exercise the power of disbarment. There is too much of authority to the contrary to say that."

From this review of the authorities in this country it is apparent that whilst it may be the general rule that a previous conviction should be had before striking an attorney off the roll for an indictable offense, committed by him when not acting in his character of an attorney; yet that the rule is not an inflexible one. Cases may occur in which such a requirement would result in allowing persons to practice as attorneys, who ought, on every ground of propriety and respect for the administration of the law, to be excluded from such practice. A criminal prosecution may fail by the absence of a witness, or by reason of a flaw in the indictment, or some irregularity in the proceedings; and in such cases, even in England, the proceeding to strike from the roll may be had. But other causes may operate to shield a gross offender from a conviction of crime, however clear and notorious his guilt may be a prevailing popular excitement;-powerful influences brought to bear on the public mind, or on the mind of the jury:-and many other causes which might be suggested; and yet all the time the offender may be so covered with guilt, perhaps glorying in it, that it would be a disgrace to the court to be obliged to receive him as one of its officers, clothed with all the prestige of its confidence and authority. It seems to us that the circumstances of the case, and not any iron rule on the subject, must determine whether and when it is proper to dispense with a preliminary conviction. If as Lord Chief Justice Cockburn said, the evidence is conflicting, and any doubt of the party's guilt exists, no court would assume to proceed summarily, but would leave the case to be determined by a jury. But where the case is clear, and the denial is evasive, there is no fixed rule of law to prevent the court from exercising its authority.

The provisions of the Constitution which declare that no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, and that the trial of all crimes except in cases of impeachment, shall be by jury, have no relation to the subject in hand. As held by the Supreme Court of Tennessee in Fields v. The State, (and the same view is expressed in other cases) the constitutional privilege of trial by jury for crimes, does not apply to prevent the courts from punishing its officers for contempt, or from removing them in proper cases. Removal from office for an indictable offense is no bar to an indictment. The proceeding is in its nature civil, and collateral to any criminal prosecution by indictment. The proceeding is not for the purpose of punishment, but for the purpose of preserving the courts of justice from the official ministration of persons unfit to practice in them. Undoubtedly the power is one that ought always to be exercised with great caution; and ought never to be exercised except in clear cases of miscon