Ex parte Schenck

In the matter of David Schenck. Courts of justice are established by the Constitution, and are invested with certain inherent powers, which are essential to their existence, and of which they connot be deprived by the Legislature.

Their province is to construe existing laws and to administer justice, and they must necessarily have the power by summary remedies to preserve order during their sessions, control the action of their officers, and enforce their mandates and decrees.

If the Courts could be deprived by the Legislature of these powers, which are essential in the direct administration of justice, they would be destroyed for all efficient and useful purposes.

The Government is composed of three co-ordinate branches, and the Constitution wisely declares that, “ The Legislative, Executive, and Supreme judicial powers of the government, ought to be forever separate and distinct from , each other. The Constitution is the fundamental law of the State, and contains the principles on which the government is founded. It regulates the division of the sovereign powers, between the coordinate departments, and directs the manner in which they are to be exercised. Each department has appropriate functions ; and each is in some degree, a check upon the others, so as to prevent hasty and improvident action.

*367If either department encroaches upon the inherent rights ot the others, this wise equilibrium of power will be disturbed and the several departments cannot operate together in harmony, and thus accomplish the objects of good government.

The Legislature as the law-making power, may within constitutional limits, prescribe rules by which the authority of the judiciary is to be exercised. The Judiciary cannot pass upon the wisdom and policy of particular legislation ; but they can declare an act of the Legislature to be unconstitutional. This power ought to be exercised with great caution, and in no case unless there is a plain violation of the fundamental laws of the State. To preserve harmony in the government, each department, while it is jealous of its own rights, ought to beep as far as possible in its own appropriate sphere. The common law power of the Courts upon the subject of contempts, has been restricted in this State by statute. Rev. Code, ch. 34, sec. 117. Acts of 1868-9, ch. 177. The whole subject has recently been elaborately considered by this Court, and needs no further discussion. Moore, ex parte, 63, N. C. R., 397. Biggs, ex parte. 64 N. C. R. 202.

Since the discussion of these cases the Legislature has seen proper to impose other restrictions upon the discretion and power of the Courts, by the Acts, ratified the 4th day of April, 1871. The necessity and propriety of such acts may well be questioned, as unduly restricting the powers of the Courts for the efficient administration of justice. There were already sufficient safeguards against “judicial tyranny.” A person under process of contempt, for an offence committed in the presence of the Court, or which tended to obstruct the ad ministration of justice, was entitled to have the particulars of the offence spread upon the records of the Court.

If the offence alleged occurred out of the presence of the Court, and consisted of an act or statement, which the Judge regarded as libelous, and done with .the intention of bringing the Court into contempt, the respondent might “ try himself” *368upon Ms own affidavit; or he might join issue as to the facts, .and justify by showing the truth of the allegations, which the Court regarded as libelous, and for which he was held in contempt. If a Judge refused to perform his duty, or acted in defiance of established facts, he would not only meet the indignant condemnation of public opinion, but he would be answerable at the bar of the High Court oí Impeachment. The .recent act above referred to, does not take away any oí the inherent powers of the Courts, which are absolutely essential in the administration of justice, and is not such an encroachment upon the rights of the judicial department oí the government as to warrant us in declaring it to be unconstitutional .and void.

It is a law of the land and ought to be observed. It is unnecessary ior us to pass upon the facts involved in this matter.

The plea of the respondent was sufficient in law, and his Honor ought to have discharged the rule.

There was error.

Per Curiam. Order reversed and rule discharged.