In the Matter of B. F. Moore, and Others

Upon Monday the 19th day of April 1869, the following *Page 398 article appeared in the columns of the Daily Sentinel, a newspaper published in Raleigh: "A SOLEMN PROTEST OF THE BAR OF NORTH CAROLINA AGAINST JUDICIAL INTERFERENCE IN POLITICAL AFFAIRS. The undersigned, present or former members of the bar of North Carolina, have witnessed the late public demonstrations of political partisanship, by the Judges of the Supreme Court of the State, with profound regret and unfeigned alarm for the purity of the future administration of the laws of the land. Active and open participation in the strife of political contests by any Judge of the State, so far as we recollect, or tradition or history has informed us, was unknown to the people until the late exhibitions. To say that these were wholly unexpected, and that a prediction of them, by the wisest among us would have been spurned as incredible, would not express half of our astonishment, or the painful shock suffered by our feelings when we saw the humiliating fact accomplished. Not only did we not anticipate it, but we thought it was impossible to be done in our day. Many of us have passed through political times almost as excited as those of to-day; and most of us, recently, through one more excited; but, never before have we seen the Judges of the Supreme Court, singly or en masse, moved from that becoming propriety so indispensable to secure the respect of the people, and, throwing aside the ermine, rush into the mad contest of politics under the excitement of drums and flags. From the unerring lessons of the past we are assured, that a Judge who openly and publicly displays his political party zeal, renders himself unfit to hold the "balance of justice," and that whenever an occasion may offer to serve his fellow-partisans, he will yield to the temptation, and the "wavering balance" will shake. It is a natural weakness in man, that he, who warmly and publicly identifies himself with a political party, will be tempted to uphold the party which upholds him, and all experience teaches *Page 399 us that a partisan Judge cannot be safely trusted to settle the great principles of a political constitution, while he reads and studies the book of its laws under the banners of a party. Unwilling that our silence should be construed into an indifference to the humiliating spectacle now passing around us; influenced solely by a spirit of love and veneration for the past purity, which has distinguished the administration of the law in our State, and animated by the hope that the voice of the bar of North Carolina will not be powerless to avert the pernicious example, which we have denounced, and to repress its contagious influence, we have under a sense of solemn duty subscribed and published this paper: B. F. MOORE, EDWARD HALL, A. S. MERRIMON, Z. B. VANCE, E. J. WARREN, WILLIAM T. DORTCH, JOHN KERR, F. B. SATTERTHWAITE, E. G. HAYWOOD, Ed. CONIGLAND, JOS. B. BATCHELOR, JOS. J. DAVIS, G. V. STRONG, ASA BIGGS, THOMAS BRAGG, S.C. LATHAM, SPIER WHITAKER, Jr., C. M. COOKE, E. T. BRANCH, WM. F. GREEN, WM. A. KERR, J. T. LITTLEJOHN, THOMAS N. HILL, M. V. LANIER, T. J. SPARROW, JNO. W. HAYS, RICH'D WATT YORK, T. B. VENABLE, GEORGE WORTHAM, J. S. AMIS, G. W. BLOUNT, L. C. EDWARDS, JOHN H. THORPE, WM. A. PLUMMER, SAMUEL T. WILLIAMS, WM. A. JENKINS, A.M. MOORE, W. A. MONTGOMERY, O. A. COKE, C. W. SPRUILL, ABNER J. WILLIAMS, R. B. WATT, T. E. SKINNER, JNO. H. DILLARD, WILLIS BAGLEY, T. RUFFIN , Jr., *Page 400 THOS. H. GILLIAM, A. M. SCALES, THOS. J. JARVIS, A. J. BOYD, MILLS L. EURE, J. I. SCALES, JOHN GATLING, R. H. WARD, H. A. GILLIAM, J. T. MOREHEAD, Jr., G. H. GREGORY, M. S. ROBBINS, J. EDWIN MOORE, M. McGEHEE, WM. F. MARTIN, JAMES A. GRAHAM, E. B. WITHERS, GEO. N. THOMPSON, J. E. BOYD, SAML. P. HILL, G. M. WHITING, L. R. WADDELL, C. CM. BUSBEE, R. J. LEWIS, H. W. HUSTED, E. S. PARKER, J. W. SHARP, J. H. ABELL, HENRY R. BRYAN, L. W. HUMPHREY, ALEX. JUSTICE, S. GALLOWAY, W. D. W. STEVENSON, W. G. MORRISSEY, JOHN HUGHES, WM. ROBINSON, W. J. RASBURY, STEPHEN.W. ISLER, JOHN.W. DUNHAM, E. S. WOOTEN, JAS. S. WOODARD, J. W. EDMONDSON, HUGH F. MURRAY, J. F. WOOTEN, J. E. SHEPHERD, F. C. ROBERTS, GEO. W. WHITFIELD, JOHN N. WASHINGTON, J. W. LANCASTER, CHARLES C. CLARK, Ed. C. YELLOWLEY, E. A OSBORNE, THOS. J. HADLEY, JOHN.E. BROWN, JOHN S. HARRIS, A. BURWELL, SION H. ROGERS, LOVERD ELDRIDGE, WM. EATON, JR., C. B. SANDERS, Upon the second day of the present term (Tuesday, June 8th, 1869) the following Order was made by the Court: "The Court being informed of a certain libellous publication directly tending to impair the respect due to the authority of the Court, which appeared in the Sentinel, a newspaper published in Raleigh, on the 19th of April 1869, and is headed *Page 401 "A solemn protest of the Bar of North Carolina" c., and purporting to be signed by certain attorneys of this Court; the Clerk is hereby ordered to inquire and report to the Court which of the persons whose names appear to be signed to said publication, are attorneys practicing in this Court." Thereupon the Clerk reported the following names as those of gentlemen who, as appeared by the records of the Court, were practicing attorneys therein, viz: B. F. MOORE, THOMAS BRAGG, E. G. HAYWOOD, SION H. ROGERS, JOS. B. BATCHELOR, A. S. MERRIMON, H. A. GILLIAM, E. J. WARREN, JOSEPH J. DAVIS, WILLIAM A. JENKINS, C. M. BUSBEE, WILLIAM EATON, Jr., W. K. BARHAM, ASA BIGGS, ED. CONINGLAND, T. J. JARVIS, GEORGE V. STRONG, C. C. CLARK, J. F. WOOTEN.W. T. DORTCH, JOHN HUGHES, T. B. VENABLE, R. W. YORK, JOHN KERR, and Z. B. VANCE. Upon the return of the Clerk's report, the Court ordered that the attorneys named therein should be "disabled from hereafter appearing as attorneys and counsellors in the Court, unless they shall severally appear on Tuesday, June 15th 1869, and show cause to the contrary" and further ordered, that a copy of the order should be served upon the parties referred to. This rule, by direction of the Court, was in the first instance, served (June 9th 1869) upon Messrs Moore, Bragg and Haywood only. Upon its return, the Court made the following remarks: As there seems to be some misapprehension, in regard to the matter which the Court is about to take up, it is proper to say that the Rule was made upon the ground that every member of the Bar whose name purports to be signed to the paper referred to in the Rule, did sign it, and approve of its publication. We are informed that there are about five hundred members of the Bar, and the Clerk reports that the names of one hundred and ten, or, aboutone-fifth of the whole number, purport to be signed to the paper. *Page 402 He also reports that Willis Bagley, Esq., has filed a statement to the effect that he did not sign the paper, or authorize any person to do so for him, and that he did not approve of its publication. The rule is therefore discharged as to Mr. Bagley; and it will be discharged as to all others who may file with the Clerk a like statement. The Clerk further reports that one hundred and one members of the Bar, had an appearance at the last term of this Court. Of these seventy-six did not sign the paper. The names of twenty-five purport to be signed to it: that is, one-fourth of the whole number. For the purpose of showing that the Justices have no disposition to carry matters to an extreme, or to do more than what is, in their opinion necessary to preserve the respect due to the Court by its officers, and to prevent its usefulness from being impaired, (less than which they cannot do, without betraying the confidence reposed in them by the people of the State,) and also for the purpose of avoiding useless costs, the Clerk has been instructed to issue copies only to Mr. Moore, Mr. Bragg and Mr. Haywood, in the first instance, with the hope that further action in respect to others might become unnecessary. Otherwise copies will issue and a day be given to them. The Clerk will enter this upon the record. The matter having been continued to Wednesday the 16th answers upon oath in the terms following, were filed severally by the respondents above named: The several answer of _______ to the Rule herein made by said Court, and served upon him. This Respondent, protesting that a Rule which deprives him even temporarily of his privileges as an attorney of said Court, ought not to have been made in his absence, without notice, and without affidavit or other legal proof of the facts upon which said Rule is based, respectfully answering says: 1. That he admits the signing and publishing of the paper *Page 403 called "A solemn Protest of the Bar of North Carolina against Judicial interference in political affairs," but insists that the Supreme Court hath no authority to make, or jurisdiction to enforce said Rule: 2. That the publication referred to in said Rule is not libellous, and doth not tend to impair the respect due to the authority of said Court. 3. And for further answer, this Respondent says that said paper was conceived and prepared during the recent political canvass for the Presidency, and its publication deferred until after the close of the canvass, to avoid its having the appearance of a partisan document. He admits that his purpose was to express his disapprobation of the conduct of individuals occupying high judicial stations; yet as an act of justice to himself against the charge made in the Rule, he not only disavows, in signing and publishing said paper, any intention of committing a contempt of the Supreme Court, or of impairing the respect due to its authority, but on the contrary, avows his motive to have been to preserve the purity which had ever distinguished the administration of justice by the Courts of this State. Thereupon the Rule was argued on behalf of the Respondents, by Messrs.Battle, Person, Fowle, Barnes and Smith. Upon Saturday the 19th day of June the Court delivered its opinion as follows: