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Colonial and State Records of North Carolina
Letter from Samuel Johnston to Richard Caswell
Johnston, Samuel, 1733-1816
August 28, 1777
Volume 11, Pages 598-599

[From Executive Letter Book.]

Edenton, 28th August, 1777.


I had the honour of receiving yesterday Your Excellency's Commission appointing me, in place of Mr. Bonfield, to hold a

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Court of Oyer & Terminer, in conjunction with Mr. Beasley, for this District; some doubts having arisen in my breast with regard to your power of making such an appointment, I shall, with all due deference, submit them to your consideration; and if my reasons have the same weight with your Excellency that they have with me, I hope you will think it advisable to revoke a Commission which is neither warranted by the Constitution, nor any act of Assembly that I have yet seen. I have not indeed seen the Act in which the Judges are named, referred to in the Oyer & Terminer Act; so that, for aught I know, the Commission may be authorised by that act, tho' by the pointed manner in which the Oyer & Terminer Act is worded, it does not appear to me that, the Assembly intended that you should have a power of commissioning any but such as are named by the Assembly. By the Constitution you are empowered to supply the vacancy of any officer the right of whose appointment is vested in the General Assembly by the Constitution but there is no mention of Justices of Oyer & Terminer in any part of the Constitution that I can find; The only Judges which by the Constitution the Assembly are empowered to appoint are Judges of the Superior Courts of Law & Equity, Judges of the Admiralty, and Justices of the Peace; a Commissioner of Oyer & Terminer can not by any reasonable construction be comprised under of either of these denominations, as he only holds his office for five days, they for life; Upon the whole, if the power of commissioning Judges of the Courts of Oyer & Terminer is not vested in you by the Constitution, but created by Act of Assembly, it appears to me that you can not exceed the limits prescribed by the Act in the exercise of that power.

I have not mentioned these doubts to any one, nor do I mean to do it till I hear from you: so that, if you think I am right, you will act as if the objections I mention had been the result of your own deliberation. I shall with great alacrity serve the public in this office to the best of my abilities, if it can be done consistently with my reputation or safety, but when the life of a man is in question, the greatest caution is necessary, as our law is attentive to the most minute circumstances in such cases.

I have the honour to be with the greatest respect & esteem,
Sr, Your Excell'y's most obedient servant,