The record-union., 1896-06-10
INHERENT POWERS OF COURTS.

ANhEhENI ~ h6S OC SOO hlS.
discussion Of no little interest at
present engaging the attention Of the
press relates to the inherent powers of
the courts. In some quarters it seems
to be feared that the exercise Of inher-
ent powers is in antagonism to the lib
critics Of the people. But this is gross
error. The fact Is, as all judicial his
tory discloses, that the inherent pow
ers Of the courts of law and Of equity,
those implied In the very word court -
and contemplated by the American
Constitutions when they declare that
there shall be courts" and that the
Legislatures must provide for their es-
tablishment-these powers are all in
opposition to encroaohments upon the
constitutional guarantees Of the peo-
pie, and in defense of those human
rights which have grown up as a
part of civilization.
OF course, there may be- indeed there
have been, cases in which there have
been abuse of these powers, since in all
human institutions there are instances
Of perversion and error. But the fear
that is manifest by some of our Cali
forn1a exchanges is not only ground
less, but it is often silly. Strike down
these powers Of the courts to maintain
themselves for the proper discharge Of
their functions, and liberty will indeed
be endangered.
be endangered. For it must not be for
gotten that the courts are the creatures
Of the Constitution, not Of the IegisIa-
tive branch Of government
Let us suppose a case as illustra-
tive of the thought: Suppose legisla-
tive body to pass an Act strictly within
its powers, in which it is necessary that
notice, as condition precedent, shall
be given to the people to act; as, for
instance, in the matter of voting upon
proposed amendments to the Consti-
tuition, that instrument declaring that
the propositions shall be submitted on
such notice as may be deemed expe-
dent" by the Legislature-as in the
case of our own Constitution Sup
pose, now, that a venaI, passionate or
exceedingly partisan Legislature or
ders constitutional amendments sub
mitted within one week after their
passage in the two houses. That or
der would be strictly within the con-
stitutional privilege of the Legislature,
but there is not court in the land that
could be appealed to in such a case that
would not intervene on application Of
any citizen. and declare, by virtue of
its inherent power to see justice done,
and decree that such notice was not
reasonable" was destructive of the
rights Of the people and dangerous to
free government
But the power to so decree and to en-
force that decree Is an equity power,
not expressed by statute and not to be
found in any legislative enactment,
unless, indeed, the instance would
fall within the writ Of review
or the writ Of prohibition as de-
fined by the code. However, the
case cited serves our purpose of
illustration The courts Of COM
petent jurisdiction always have had,
and we think always will exer-
else, the inherent power to compel the
doing Of equity and to preserve the con-
stitutional rights Of the people In
deed, 1t Is not IN any part of our stat
ute law expressly declared that any
particular. or any court whatever, shall
have the power to declare a legislative
enactment unconstitutional, yet there
is no more necessary check upon dan
gerous legislation and legislative inva-
sion than the power Of the courts un-
der the command of the Constitution
addressed to this inherent power to
stay the legislative arm where II is
thrust between the Constitution and
some human right
There Is great deal OF balderdash
talked just now about the sncroach-
rents Of the courts, the stretching of
their powers and their gradual assump-
ton Of autocratic powers Impartial
examination Will show that the courts
are to-day what they have been since
ths foundation Of the Government In
the matter Of inherent powers and that
there has been no extension OF these
powers, though 1t Is common to prate
Of such extensions" Where, IL at
all. any attempt in that direction has
besn made by an inferior court. the
superior and appellate tribunals have
Immediately and jealousy interfered
to check any unwarranted exercise Of
power
In all this matter Of the powers in
herent IN the courts Of law and of
equity we should form our judgments
In calm only. free from prejudice and
bias, and in the light Of history and
the theory and practice of free govern
ment, which rests upon the trio Of d.
visions, or Is divided into a trio of
branches, each a check upon usurpa-
tion, autocracy and greed of power,
namely, the legislative. the executive
and the judicial. There can be no
mingling of these, no breaking down
OF the powers Of either branch, with
out danger to the whole system It is
dependent upon the maintenance of the
three. and especially are our liberties
more resident In the powers of the
American courts. both inherent and
conferred.
>p----------