USA > Pennsylvania > Fayette County > Uniontown > A history of Uniontown : the county seat of Fayette County, Pennsylvania > Part 37
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as it gave the true state of the controversy, and supplied the place of false rumors in relation both to Judge Baird and ourselves.
John Dawson,
John M. Austin,
Wm. P. Wells,
Joshua B. Howell,
J. H. Deford,
J. Williams,
R. G. Hopwood,
A. Patterson, R. P. Flenniken.
William McDonald not concurring with the majority of the respondents in the views taken in their second answer, pre- sented a separate one as follows :
On the subject of the difficulty between the bar and the court, I take the liberty of making the following statement: I was opposed to the publication of the correspondence from the beginning, and have frequently so expressed myself, thinking it would have a tendency to widen the breach without being calculated to do any good. From first to last I have been free from the control of any intention to cast disrespect or contempt upon the court or any of its members.
Wm. McDonald.
The court then adjourned-It being understood judgment on the rule was to be pronounced the next morning. In con- sequence, however, of various delays this was not done until the evening when the judgment of Baird & Porter was de- livered by Baird as follows :
Jan. 8th.
The court has given to the papers presented by the re- spondents in this case, the most careful consideration and the most favorable construction their import would at all admit. It is with the deepest regret, we are constrained to say, that they are by no means satisfactory. We cannot regard them as removing the offensive and injurious operation of the matter which has been published to the world in relation to this court, and which forms the gravamen of the rule. All that we have required is, that the gentlemen would distinctly place in their
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answer a disavowal of any intention to impute to the court or its members any thing which would lower them in their of- ficial character, in the esteem and confidence of the people. This has been, and is still refused. No alternative therefore remains. We must abandon our judicial honor, respectability and authority, or endeavor to sustain them in what we conceive to be the legitimate mode.
It is not the common law, or statutory power to punish con- tempts, which we are about to exercise. It is the coercive con- trol and discipline which the courts have always legally em- ployed in order to preserve in the members of the bar the ob- servance of that trust, courtesy and respect which is indispensa- ble to the safe and orderly administration of justice. An early act of Assembly (22nd May, 1722,) declares that attorneys if they misbehave, shall be liable to " suffer such pains, penalties, and suspensions as attorneys at law in Great Britain are liable to in such cases,"-and by an act of last session, " If any attor- ney shall misbehave himself in his office of attorney, he shall be liable to suspension, removal from office, or to such other pen- alties as have hitherto been allowed in such cases by the laws of this commonwealth."
By these three acts, then, the power of the courts here is the same as is exercised by the courts in England. We con- sider it unquestionable wherever there is misbehavior in an attorney. The exercise of this power is a judicial act, and al- though it is summary, yet it can no where be so safely lodged, both as respects its prompt and efficient application when ne- cessary, and also as respects the security and interests of the members of the bar, who have always the feelings and attach- ment of the judges with them when they conducted themselves with propriety.
The term " misbehavior " in our acts of Assembly, has an evident relation to the official oaths of an attorney. He is sworn to " behave " himself "with all good fidelity to the court as well as to the client." What does this include? As between counsel and client it seems to be well understood. A lawyer would not betray the interests or the fame of the man who has given him a paltry fee; nor would the law allow him to do so in any case in which he is engaged. Does it not import any thing as respects the court? Can an attorney be tolerated in publishing to the world that " public confidence is withdrawn
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from the court," and then come in and claim to stand in that relation which the law contemplates as essential to the deco- rous, orderly administration of the public business? If so, we do not understand the meaning of the word "fidelity ", or the relation it creates.
In this case we think there has been "misbehavior " 011 the part of the gentlemen against whom the rule is granted. The publication in relation to the court we consider a libel. It has been done in the office of attorneys, as they themselves show. The whole matter refers to the public relation between the court and the bar. The first letter of the president is in truth the act of the whole court for although signed by him, it was the concurrence of his brother judges. It was intended as a kind appeal to their good sense and generous feelings, and by no means as insinuating any imputation more than oc- casional inadvertant side-bar remarks and other irregularities, as the letter plainly imports. It was communicated in a private manner, because it was thought more likely to produce a good effect than a public address. They, in all their proceedings, and in their answers, speak of it in their official relation. The only question then is, does their conduct amount to " misbe- havior "? and to what degree? We think it does, and to such an extent of aggravation as virtually to destroy the relation of . " fidelity " which must exist towards the court by the mem- bers of the bar. If that relation is extinguished, and no longer exists, the official connection must necessarily be dissolved, otherwise the spirit of the law is violated.
As we have no personal feelings to indulge except those of regret : we forbear any harsh commentary upon the matters in- volved. We would leave it to the calm reflection and better feelings of the gentlemen themselves, and would hope that they may yet be induced to avail themselves of the door which is still open to a returning sense of duty. We have no appeal to make to the public, except what a just estimate of our rectitude of purpose may present to their virtue and good sense.
It is ordered that the names of John M. Austin, John Daw- son, J. B. Howell, W. P. Wells, Alfred Patterson, John H. Deford, J. Williams and R. P. Flenniken be struck from the list of attorneys of this court, and in the case of Rice G. Hop- wood the rule to be continued.
In the case of William McDonald the rule to be discharged.
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Judge Nixon dissented from the majority of the court, and presented the following opinion in relation to the case :
I concur with my brother judges, that certain parts of said publications are calculated to bring this court into disrepute with the people, and ought to be punished; but taking into consideration the cause that elicited, or drew forth these pub- lications, and the concessions and explanations that have been made by the respondents to the court, the penalty of an in- definite suspension would be very severe. Had our rule been left open so as not to require a specific punishment, I would have been very happy in co-operating with my brother judges in inflicting some adequate punishment, if any, but as there is no alternative I must dissent from their judgment, and think the rule ought to be discharged.
January 9th. Judges Porter and Nixon on the bench.
Rice G. Hopwood, in whose case the rule was postponed to this date, presented the following answer:
In answer to the rule granted by the court upon the mem- bers of the bar to show cause why they should not be stricken from the list of attorneys, the undersigned candidly, but re- spectfully submits the following reply as to the publication :
That he intended no contempt of court, nor did he intend to call in question in any shape, the integrity of their official conduct, or detract from their standing in the estimation of the public.
Rice G. Hopwood.
Rule discharged.
Nathaniel Ewing, Esq., one of the members of Uniontown bar feeling anxious to reconcile the difficulties which had arisen between the court and bar submitted to the court some very appropriate remarks, of which the following is an abstract :
Mr. Ewing said he conceived that he was capable of giving the subject a more calm consideration than either the court or the gentlemen of the bar who were concerned, and he felt it a duty he owed to both to express his opinion of the legal power of the court, as well as of the rights and privileges of the bar. There were, he said, but three cases at most-and possibly but two-where the court could strike an attorney from the rolls. 1st. Where he is guilty of some high crime or misdemeanor in-
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volving moral turpitude that the fountain of justice might not be contaminated by such impurity. 2d. When he misbe- haves himself in his office of attorney. To understand this matter aright it was necessary, he said, to remember that an attorney possesses both an official and a private character and relation-when he acts in his official character he acts as the representative of another person-his client. He stands in his stead-his acts are in law the acts of his constituent-when he acts for himself he does not, cannot act as an attorney, the word itself, ex vi termini precludes such an idea. If he is a party in court he is liable for the same offenses and to the same extent as other suitors. In his intercourse whether oral or written with the judges out of court he is amenable to them only as one gentleman is to another. The court seemed to suppose, he said, that there was a kind of personal allegiance due by the members of the bar to the judges at all times and in all places. This was a gross misapprehension of their re- lation. The judges were not lords and the attorneys their vas- sals or liege subjects. It is only when they act in their official characters respectively that they sustain a relation to each other different from that sustained by other gentlemen in the community. All official business is supposed to be done in court, whether it be actually sitting or not. And it is only while acting in official business that an attorney, as such, is responsible to the court. This view of the subject was fortified, he said, by a reference to the acts of Assembly. The act of 1722 says, that attorneys "shall behave themselves justly and faithfully in their practice, and if they misbehave themselves therein, they shall suffer such penalties and suspensions," etc. And the oath which is prescribed by the act of 1752, which was to be taken only where they acted for others, is "Thou shalt be- have thyself in the office of attorney within the court." And the late act of 1834 uses the same words, and provides "if any attorney at law shall misbehave himself in his office of attorney, he shall," etc. 3d. Possibly a third case might be, he said, when an attorney was guilty of gross misbehavior during the sitting of the court-in the face of the court. He was, however, in- clined to think that if it was not in the transaction of official business, he must in this case be dealt with as any other person guilty of like misconduct.
What then, he continued, is the case in hand. It could not
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fall under the first or third class. It was not a high crime or misdemeanor, nor was it done in the face of the court during its sittings. Can it be classed under the second head? It cannot. The gentlemen who wrote the letter to Judge Baird and who afterwards published it, were not, in those acts, acting in their office of attorneys. Whom did they represent? Whose attorneys were they? Who were their clients? They had none-they acted for themselves in their private, individual and personal characters and relation. In regard to the publication of the correspondence it is submitted, he said, whether there is not enough in the last letter of his Honor Judge Baird to palliate, if not to excuse that act. (Here Mr. Ewing was about to re- mark upon Judge Baird's last letter when he was stopped by Judge Baird who observed that the matter was closed last even- ing. Mr. Ewing then took his seat.)
Thus eight members of the bar of Fayette county stood suspended from the court, one of whom was the deputy at- torney-general. They forthwith industriously applied them- selves to present their case to the legislature of the state. Among the accusations against Judge Baird were the following :
Frequently did not arrive in Uniontown until Monday even- ing of the week in which court was to be held, affording the constables of the county no opportunity to make their reports, and adding greatly to the disappointment of jurymen, witnesses, litigants and attorneys, and adjourning court on Thursday, against the interests of the county.
The reading of newspapers during trials.
Taking no notes of testimony.
Giving opinions before the trial was gone through with.
Neglect to take down testimony in writing or to reduce his opinion to writing when required to do so.
The following points were submitted to the legislative committee :
Claiming the power of punishment under the act of 1809. The second section of said act having no bearing on the case, because the defamatory writing of the Fayette county gentle- men had no relation to any case pending or question before the court.
Neglect of duty in Fayette county in not devoting that time and attention to the business of the county which the public
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interests have required ; and in disregarding the duties enjoined by the act of the 24th of February, 1806, entitled an act to alter the judiciary system of this commonwealth.
His irritable nature, impatient temper, violent and partial feelings, etc. Want of legal knowledge, fluctuating and uncertain opinions, offensive manners and behavior both on and off the bench being such as to disqualify him for a proper discharge of his judicial functions, and lessen or destroy that respectability which a judge ought always to possess.
The committee were also informed of the manner of the judge in charging juries, and his conduct when required to re- duce his opinions to writing, etc.
Address of Judge Baird in his own defense before a com- mittee of the House of Representatives, consisting of Messrs. Cox, chairman, Richards, Conrad, Lacock, Reed, Pennypacker and Bidlack, appointed to investigate his official conduct in re- lation to certain specification of charges preferred against him by eight attorneys of the Uniontown bar.
" Mr. Chairman and Gentlemen of the Committee of Investi- gation :
I avail myself of your permission to reply to the charges exhibited against me in the specification filed. I cannot be in- sensible of the difficult circumstances in which I am placed. I have not merely the resentful feelings of the eight gentlemen who were stricken from the rolls of Fayette county, and the formidable array of their friends to contend against, but they have been the moving power by which popular clamor and prejudice have been stirred up for the destruction of my for- tune and my fame. The groundwork of their complaints is their expulsion from the bar. If the court did wrong in that proceeding, a legal or constitutional remedy was accessible without an appeal to the passions of the people. If there was error in the construction of the law, the Supreme Court would have at once restored them by mandamus. If it was corruption or oppression, the legislature was the proper tribunal for re- dress. I was not, anticipating this procedure. Not only have inflammatory appeals to passions, prejudices and even party feelings of the people have been addressed through the news- papers but the machinery of a county meeting has been brought
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into action, the proceedings and resolution of which are laid before you.
For years, great irregularities in the manner of conducting business at the Fayette county bar had existed and had been a constant source of embarrassment and vexation. The Court had made repeated efforts to remedy the evil, but in vain. It was, at length, determined to address to the gentlemen a kind appeal to their good sense and feelings of propriety. This gave rise to one of the most vindictive persecutions that ever had been exhibited in a county of laws. The letter of the bar is grossly libellous. It charges that the public confidence is with- drawn from the court, and calls upon me to resign.
In answer to the rule, they say it was a matter between the respondents and Judge Baird, and, therefore, no offense against the court. Now if the court had dismissed the rule on that ground, and I had brought my action or indicted for the libel, what would have been the defense? We have it in their second response ; "The correspondence related to public affairs; a public matter, involving seriously public interests."
The Fayette lawyers complain that they were deprived of the benefit of a trial by a jury of the county. Suppose they had been indicted, and a jury was impannelled; what would have been the issue? The question whether rebellious or not is for the legal direction of the court. The only matter to be found then is the intention. This the law presumes to be malicious unless the contrary is shown. Their plea must be "not guilty ", which the jury might negative by their verdict. They then would stand convicted of a crime that has been held in all ages in ab- horrence and detestation; which by the Roman decemviri was punished by death; by the Remmia lex was branded with a hot iron in the face, and later with whipping, and even in Eng- land, punishment by fine, imprisonment and pillory, and for the second offense by transportation. Even in our own system the penalty is fine and imprisonment at the discretion of the court, and removal from office. All this might have been the conse- quence, even if this publication had been with a view of ex- amining the proceedings of the court, or investigating its official conduct.
They could have been restored on the day following their expulsion if they had wished it. The court evidently intended it to be so understood. They well knew that they had but to
I
p
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say that they did not intend to degrade the court in public opinion, and they would have been at once restored to all their privileges.
As to the second specification,-neglect of duty,-I aver that I have endeavored to perform the duties of my office, not only with faithfulness and integrity, but with diligence. Since I have occupied a seat on the bench (a period of nearly seven- teen years), I have never lost a single term. Through rain and snow, in sickness and in health, I have been at my post, em- ploying my best efforts for the dispatch of the public business, and so far from having been dilatory and inattentive, I have been often complained of for urging the gentlemen of the bar to a more rapid course. There is not so much business done in Fayette county in the same time as in Washington and Greene; the cause, however, I positively assert, is in the very gentle- men who now bring it forward as a matter of accusation. In every trivial matter presented to the court the attorneys will persist in making long speeches when in truth there is nothing to say.
The third specifications ;- It is possible I have an irritable nature and impatient temper, and if so it certainly would be indicated in Fayette county more than at any other place, be- cause there are more exciting causes. The fault is not entirely in my constitutional temperament but is in a good degree attributable to the gentlemen who make the complaint.
As to the charge of "want of legal knowledge ", I plead guilty to some extent. I admit I do not know as much as I ought to know and I beg that the committee will test the quali- fications of the gentlemen who may appear to give evidence as to mine.
Fluctuating and uncertain opinions-If it is that I have given up the wrong to adopt the right, I must plead guilty. If I have abandoned correct views to embrace erroneous ones, I call for the proof of the particular case.
Fourth Specification-Had lost the confidence of the people of Fayette county. May be now true to some extent; but who made it so? Who are they that have been endeavoring to poison the public mind? Who directed the press in bitter in- vective and denunciation against me? Who got up the public meeting that by its resolutions became my accuser? Who
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framed these very resolutions and directed the movements of the people?
My sense of injury will not allow me to speak on this par- ticular with that calmness which the respect to the committee requires. I submit my case, therefore, "to the law and to the testimony ; " to the intelligence and firmness of the committee and to the virtue of the people acting through their represen- tatives."
The above address of Judge Baird delivered before the com- mittee of the legislature was printed in full and comprised 17,- 800 words.
The public meeting referred to in Judge Baird's address was known as the "Searight meeting " and was held in re- sponse to notices published in the newspapers, as follows:
A general county meeting will be held at the house of William Searight at 12 o'clock on Saturday, the 24th of January, inst., for the purpose of ascertaining the sentiment of the people of Fayette county in relation of the coercive power claimed and exercised by the court in the recent expulsion of two-thirds of the members of the bar. A full expose of the case is expected to be given by gentlemen in every way competent. A general attendance of the people of the county is invited, as it is a question of momentous importance-a question of LIBERTY and DESPOTISM.
The result of the Searight meeting.
Pursuant to previous notice inserted in the Newspapers, a very large and respectable meeting of the citizens of Fayette county, Pennsylvania, took place on the 24th inst. at Searight's Hotel. The object of the meeting was to enable the people to express an opinion in relation to the Judicial affairs of the county ; more especially in relation to the proceedings had at the last court, which resulted in the expulsion of eight attorneys from the bar .-
Col. James A. McClelland, was appointed President.
Uriah Springer, William Vance, Capt. Hazel, G. D. Evans and Robert Boyd, Vice-presidents.
John I. Dorsey and George Meason, secretaries.
On motion, a committee of twenty-two was appointed by the meeting to draft resolutions for its consideration. The com. mittee consisted of :-
John Huston, (Iron Master), Gen. Beeson, Jess Antrim, Col.
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Gilmore, Elias Jeffries, William Hastings, James McSherry, Samuel John, Major McNeal, Aaron Hibbs, William Conden, Benjamin Roberts, Esq., Major Lynch, John Huston, farmer, Dr. John Townsend, Wm. Searight, Geo. Walker, Washington Bute, John Ball, Esq., Thomas Todd, Capt. Whaley, Edward Hyde.
The committee having retired for a time, reported to the assembly (who had in the meantime adjourned to a meadow, the house not accommodating all the people) the following reso- lutions :-
1. The people have a right, in a peaceable manner, to as- semble together for their common good, and apply to those in- vested with the powers of government, for any proper purposes.
2. The proceedings of our courts are not often, nor should they be, the subjects of public discussion in the primary as- semblies of the people. When, however, cases arise involving the great principles of the constitution, and of Liberty itself, it becomes proper for the people deliberately to examine them, and express their opinions. They should at all times be jealous of their rights and privileges, and never slow in maintaining them.
3. The late summary proceeding in our court which resulted in the expulsion of eight of our fellow citizens from the bar of Fayette county-by which the administration of the law has been obstructed-and by which they are deprived of their pro- fession and the means they had chosen to enable them to sup- port themselves and families-is well calculated to create alarm, and demands a public investigation and a public decision.
4. The power of inflicting " summary punishments ", for al- leged offenses committed out of court, without giving the ac- cused the benefit of a trial before a jury of his country is re- pugnant to the principles of our Republican institutions and ought not to be tolerated in a free country. Such a power partakes of the very essence and rankness of despotism.
5. The right of trial by jury is the sacred and invaluable privilege of freemen, and should, at all hazards, be maintained and preserved inviolable.
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