Ex Parte David Schenck

• Decision Date: 30 June 1871
• Court: North Carolina Supreme Court
• Parties: Ex Parte DAVID SCHENCK.

65 N.C. 353

Ex Parte DAVID SCHENCK.

Supreme Court of North Carolina.

June Term, 1871.

The act of 4th of April, 1871, declaring that no Attorney who has been duly licensed to practice law shall be disbarred or deprived of his license and right to practice, except upon conviction for a criminal offence, or after confession in open Court, is constitutional.

The aforesaid act does not take away any of the inherent rights which are absolutely essential in the administration of justice.

Therefore, where a Judge, after the ratification of the aforesaid act, attempted to debar an Attorney from practicing his profession in his Judicial District, who had not theretofore been convicted of any criminal offence, or who had not confessed himself guilty thereof in open Court; Held, that such action was unauthorized, and in violation of law.

Contempt of Court by David Schenck, an Attorney of this State, adjudged by Logan, J., at Spring Term, 1871, of GASTON Superior Court.

On the first day of the Term of said Court, his Honor made the following order, and had the same entered on the Minute Docket of said Court, to-wit.:

“The Court being informed of a certain libellous publication directly tending to impair the respect due to the Hon. G. W. Logan, Judge of the Superior Court of the Ninth Judicial District of the State of North Carolina, and to the authority of the Court, which appeared in the Daily Patriot, a newspaper published in the City of Washington, D. C., on the 25th of April last, and is headed “Letter from North Carolina, Photograph of a Radical Judge, Lincolnton, N. C., April 21st, 1871, Hon. Francis Blair,” &c., (a copy of which is spread upon the records,) purporting to be signed by D. Schenck, an Attorney of said Court.

It is therefore ordered by the Court that the said D. Schenck be disabled from hereafter appearing as an Attorney and Counsellor in said Court, unless he shall apply on Saturday, 13th May, inst., and show cause to the contrary.

It is further ordered, that a copy of this order be served on the said D. Schenck immediately with a copy of the aforesaid letter.”

The letter referred to in the foregoing order, as taken from the records of said Court, is as follows:

“LETTER FROM NORTH CAROLINA.

PHOTOGRAPH OF A RADICAL JUDGE,

Lincolnton, N. C., April 21st 1871.

HON. FRANCIS BLAIR:

Dear Sir: I write to inform you that the communication read by Senator Nye on the 13th from Judge(?) Logan, is a base and unmitigated falsehood, made out of the whole cloth to bear upon the Ku Klux bill. I, with the whole bar, attended Cleaveland Court. On Monday there was a rumor that one Biggerstaff, a pliant tool of Logan's, had been whipped by parties who retaliated upon him for shooting at his own brother, and endeavoring to assassinate him. There was no politics in it--purely a family feud; but Logan summoned 300 men, and had them armed and paraded around his house, and arrested some forty persons, not one of whom, as every one knows, had anything to do with it.

At the same time he dispatched his man ‘Friday,’ one Carpenter, to report to Washington, and he remained at home and the report was circulated that he was afraid to leave home for Cleaveland Court. The citizens of Cleaveland at once held a public meeting, assuring him of protection, and sent their sheriff to escort him to Shelby. Mark his reply, ‘He was not at all afraid, but was staying to investigate the whipping, and that he would come when he got through.’ Thus leaving Court and people to lose time and money, while he was doing magistrate's duty at home.

The Solicitor, a republican, strongly denounced him, and wrote him an urgent letter to come. The very day that Senator Nye read Logan's letter in the Senate, saying he, Logan, was afraid to come to Cleaveland, Logan came without escort or molestation, and held court as peacefully, if not more peacefully than ever one was held before.

This Logan is an ignorant, vile, corrupt man, whom no one respects, and for whom the whole bar have a sovereign contempt.

Yours truly and gratefully,

D. SCHENCK.”

Upon the day mentioned for the return of said rule, and after service of notice thereof upon the said Attorney, he filed the following plea, verified by affidavit.

“GASTON COUNTY:

In Superior Court,

In the matter of David Schenck.

This respondent having been served, on the 8th inst., with a copy of an order rendered by the court on that day, (here reciting the order mentioned heretofore,) now on this the 13th day of May, in open Court appears, and for cause to the contrary shows:

1st. That having been duly licensed to practice law as an Attorney of said Court, he has the lawful right to continue so to practice in said Court without restraint or impediments, for that he has not been convicted, or in open Court confessed himself guilty of any criminal offence, showing him unfit to be trusted in the discharge of the duties of his profession according to the provisions of the statute in such case made and provided.

2nd. This respondent affirms that he has never been convicted, or in open Court confessed himself guilty of any criminal offence, showing him to be unfit to be trusted in the discharge of his profession, and therefore denies, that this Court has the power to lawfully make the order temporarily disabling him from practicing his profession, and further denies that it has any jurisdiction in the premises to continue and enforce it.

Wherefore he insists that said order be discharged, and respondent be permitted to exercise his right as an Attorney and Counsellor, agreeable to the Constitution and the laws of the land.

D. SCHENCK.”

Upon the coming in of the foregoing plea, and after argument of Counsel, his Honor was of opinion that no answer had been filed so as to entitle respondent to be heard upon the rule, and ordered that said rule be made absolute, from which ruling the respondent prayed an appeal to the Supreme Court, which was declined by the Court, upon the ground that respondent had failed to answer the rule as required by the provisions of the statute of April 10th, 1869.

At the present term of this Court respondent filed a PETITION FOR A certiorari, which was granted, and made returnable on 19th June.

The transcript having been returned to the effect above.

Moore, with whom were Gatling, Wilson, Bragg & Strong, in behalf of respondent, argued as follows:

1. Unless the letter was written for publication, the Judge could not notice it as a contempt of Court. For there can be no contempt of Court if the act be not so intended, unless the act be a contempt per se. Thus, to say to an intimate friend confidentially that a certain Judge is a felon, is not a contempt of the Court in which that Judge presides, although the friend should publish it. So, if a writer intending his composition for an after age, should lose it, and, without his consent it should get into the press, he is not responsible for the effects of its publication, no more than if the composition should be swept away by a tornado and be found and published in another kingdom. 2 Gr. Ev. sec. 414, 326.

2. The Judge had before him no legal evidence of even the writing of the letter by the defendant, much less of its publication by his consent. The printed name of the subscriber furnishes no evidence of the writer, unless it be shown that he has acquiesced in the charge of authorship. This may be done by showing that he has had notice of the publication, and has omitted, after opportunity to do so, to deny it. 2 Gr. Ev. sec. 416.

3. But conceding the publication to have been intended, it is no contempt of Court, under our law, though it were so at common law, because our statutes expressly forbid the Courts so to treat it.

To this it is replied on behalf of the Judge, that the statutes are unconstitutional--that the powers of courts over contempts are inherent, and that when the Courts exist by virtue of the Constitution, the inherent powers become constitutional provisions.

We admit, that there is in all courts an inherent power to preserve order, while discharging their business. This power is incidental to the office, inseparably attached to it, and cannot be taken away by legislative authority while the Court exists by virtue of the Constitution.

Every Judge invested with the power to hear and determine cases, must be endowed with all the powers, which, as Chief Justice Nash says, “are necessary to the proper transaction of the business before him.” “If it were not in the power of the Court to punish individuals, who by noise or otherwise interrupt its proceedings, its business would be impeded, the majesty of the law defied and the Court ultimately brought into contempt.”

Such powers as are clearly necessary for this purpose, are inherent. To deny them would annihilate Courts of justice. The judicial department exists by virtue of the Constitution, and stands upon the same base with the Legislative and Executive. The legislative department has the same constitutional power to destroy the judicial by the sword, as it has, by allowing a lawless mob to interrupt its officers in the discharge of their judicial functions.

It may sometimes be difficult to determine precisely where the line shall be drawn between the inherent powers of a Court, and those which are subjects of legislative regulations. That the common law recognized many acts as contempts, which are the subjects of legislative control, is manifest from the wide distinction drawn between Judges of Superior, and Judges of inferior Courts, in respect to language deemed contempts of the former, but not of the latter, and in no respect disturbing the official proceedings of either.

But the power of the legislature over contempts of Court, to the extent which Congress and this State have exercised it, must be conceded to be now settled too firmly to be upset. The Constitution of every State establishes the three great departments of government as independent of each...