Mr. Justice MILLER, dissenting.
I am of opinion that this court has no jurisdiction of the case in which it has just ordered the writ of mandamus to issue.
There are in the reports of our decisions three applications before this for the writ of mandamus to be issued by this court to restore attorneys to places at the bar from which they had been expelled by Federal courts. The first of these is the case of Burr. The opinion delivered by Chief Justice Marshall expresses great doubt on the part of the court as to its right to interfere, and resting mainly on that doubt, and partly on the fact that the exclusion from practice was temporary, and would soon expire, the application was refused.
In the other two cases, namely, Tillinghast v. Conkling, and Ex parte Secombe, the application was denied, and the denial placed explicitly on the ground that this court has no power to revise the decisions of the inferior courts on this subject by writ of mandamus.
In delivering the opinion of the court in the latter case, Chief Justice Taney said, that 'in the case of Tillinghast v. Conkling, which came before this court at the January Term, 1827, a similar motion was overruled. The case is not reported, but a brief written opinion remains in the files of the court, in which the court says that the motion is overruled upon the ground that it had not jurisdiction of the case.' In the principal case the court said: 'It is not necessary to inquire whether this decision of the Territorial court (disbarring Secombe) can be revised here in any other form of proceeding. The court are of opinion that he is not entitled to a remedy by mandamus . . . It cannot be reviewed or reversed in this form of proceeding, however erroneous it may be, or supposed to be. And we are not aware of any case where a mandamus was issued to an inferior tribunal, commanding it to reverse or annul its decision, where the decision was in its nature judicial, and within the scope of its jurisdiction and discretion.'
The attempt to distinguish the case now under consideration from those just cited, on the ground that in the present case the Supreme Court of the District of Columbia was acting without jurisdiction, is in my judgment equally without foundation in the fact asserted, and in the law of the case if the fact existed.
1. That court had jurisdiction of the person of Mr. Bradley, because he was a resident of the District of Columbia, and because he received notice of the proceeding, and submitted himself to the court by depending on the merits.
2. It had jurisdiction of the offence charged, namely, a contempt of the court whose judgment we are reviewing. I say this advisedly, because the notice which called upon him to answer charged him in distinct terms with a contempt of the Supreme Court of the District, though much of the argument of counsel goes upon the hypothesis that the offence for which he was disbarred was an offence against the Criminal Court, and not the Supreme Court.
3. That court had undoubted authority to punish contempt by expelling the guilty party from its bar.
If the court had jurisdiction of the party and of the offence charged, and had a right to punish such offence by the judgment which was rendered in this case, what element of jurisdiction is wanting?
But if we concede that the Supreme Court of the District exceeded its authority in this case, I know of no act of Congress, nor any principle established by previous decisions of this court, which authorizes us to interfere by writ of mandamus. The argument in favor of such authority is derived from the analogy supposed to exist between the present case and others in which the court has held that the writ may be issued in aid of its appellate jurisdiction, as Ex parte Crane, Ex parte Hoyt, and by the practice in the Court of King's Bench, in England, and in some of our State courts.
In regard to the practice in the King's Bench and in the State courts, I shall attempt to show presently that this court possesses no such general supervisory power over inferior Federal courts as belongs to the King's Bench, and as belongs generally to the appellate tribunals of the States. The appellate power of this court is strictly limited to cases provided for by act of Congress.
The case of Crane was one which this court had an undoubted right to review. It was alleged that this right was obstructed by the refusal of the judge of the Circuit Court to sign a bill of exceptions, and the court held that in such a case he might be compelled, by the writ of mandamus, to sign a truthful and proper bill of exceptions.