#### John Beard *v.*John A. Cameron.

1 *1*From Bladen. J

The 20th section of the Constitution provides, “ that in every case, where “ any officer, the right of whose appointment is, by this Constitution, “ vested in tile General Assembly, shall, *during their recess,*die, or his “ office, by other means, become vacant, the Governor shall have power. *“*with the advice of the Council of State, to fill up such vacancy, by *“*granting a temporary commission, which shall expire at the end of “ the next session of the General Assembly.”

The Honorable Samuel Lowrie, one of the Judges of the Superior Courts of Haw and Courts of Equity, died *during the sitting*of the General Assembly in 1818. And after the adjournment of the General Assembly, the Governor, with the advice of the Council of State, granted a temporary commission to the Honorable Blake Baker, to fill the vacancy occasioned by tire death of Judge Lowrie.

tinder tins commission, Judge Baker held the Superior Courts of Law and Courts of Equity,in one of the Judicial Circuits; and a writ being returned before him, at tire Superior Court of Law for Bladen County, the Defendant pleaded to tire jurisdiction of the Court, setting forth tire above facts, and *a*prayed judgment if he ought to be compelled to answer to *“*the Plaintiff, in his said plea,” &c. The Plaintiff demurred,, and the demurrer was sustained, and tire Defendant ordered to answer over: for,

It is a strange and incongruous proposition, that an answer can be required to be given by a man, whether he be a Judg'e, winch answer he cannot give unless he be a Judge.

It is true, the extent of the jurisdiction of all Courts, is settled by the Courts themselves : but in all such cases, there is a Court, competent to decide, and it is called upon to decide, not whether it is a Court, but the extent of its jurisdiction.

The plea contradicts a fundamental maxim, that no man shall be a Judg’e in his own cause. The law wisely presumes that no one in such a situation can give a righteous judgment; and if, as the plea assumes, Mr. Baker was incompetent to hold a Court, still less was he competent to decide whether he could adjudge in this particular case.

The object of the pleadings in this case, was to get the opinion of the Court upon the question, whether, where a *182Judge of the Superior Courts of Law and Courts of Equity^ (whose appointment, by the Constitution, is vested in the General Assembly) dies *during the sitting*of the General i;ie Governor has the power, with the adviceof the Council of State, to fill up the vacancy occasioned by his death, by granting a temporary commission the 20th section of the Constitution having declared, that the Governor shall have such power, where the death happens *during the recess*of the General Assembly.

, The Plaintiff brought an action on the case, and the Defendant filed the following Plea, to-wit:

“ And tile said John A. Cameron in his own proper person comes and *“*defends the wrong and injury, and says, that this action is *coram non, “judice:*that there is no Superior Coui-t of Law now in session in the “ county of Bladen; that a Judge, legally and constitutionally appointed, “ is a constituent part of a Superior Court of Law for said county, and “ that tile said Blake Baker, Esq. has not been legally and constitution-*t!*ally appointed a Judge of the Superior Court of Law and Equity of “the State of North-Carolina aforesaid; and that the said Blake Baker, “ Esq. is not one of the Judges of the Superior Courts of Law and *“*Equity of the State aforesaid, and that he has no authority to hold the *“*Superior Court of Law of said county, and to preside in the same as K Judge; and that he has no jurisdiction over said action, nor any autho-v rity to receive any plea or make any order, or give any judgment in, v touching, or concerning the same; and this the said John A. Cameron “ is ready to verify, and, therefore, apprehends that the said Blake “ Baker, Esq. will not, nor ought to take any cognizance of the action « aforesaid here depending against him, &c. Therefore he prays judg- “ ment, if he ought to be compelled to answer to the said Plaintiff in his “ said plea here depending.

“ J. A. CAMERON.”

This Plea was sworn toand the Plaintiff replied as follows, to wit:

“ And tiie said John Beard saith, that the said Hon. Blake Baker ought *“*to take cognizance of the action aforesaid here depending against the' *"*said J. A. Cameron; and that the said Defendant ought to be com- *“*pelled to answer over to the said Plaintiff in his said action here *“*depending; because the Hon. Samuel Lowrie, late one of the Judges * of the Superior Courts of Law and Equity of the State of North-Caro. “ lina, died during the recess of the General Assembly of the State *“*aforesaid, and his Excellency John Branch, Governor of the State ■'v aforesaid, with the advice of th.e Council of State aforesaid, issued a *183« temporary commission, bearing date the day of A. D. « 1818, (which commission will not expire until the end of the next ses- « sion of the General Assembly of the State aforesaid, winch next ses- *“*sion, will not commence until the third Monday of the ensuing month « of November,) to the said Hon. Blake Baker, to fill the vacancy occa- « sioned by the death of the said late Hon. Samuel Lowrie, thereby « giving to the said Hon. Blake Baker, during the term aforesaid, all the « powers and authorities of a Judge of the Superior Courts of Law and *“*Equity of the State aforesaid, which gives him full power and authority « to hold the Superior Court for the county of Bladen at this time, and « gives him jurisdiction over the aforesaid action ; and this the said John « Beard prays may be enquired of by the country.

«JAMES J. MACKAY,

« Eor the Plaintiff.4 ’

To this Replication the Defendant rejoined:

“ And the said John A. Cameron, as to the replication of the said John •« Beard to the said plea of him, the said J. A. Cameron, saitli, that the « General Assembly of the State of North-Carolina commenced its *■“*annual session for the year 1817 on the third Monday of November in « said year, at the city of Raleigh, in the State aforesaid, being the time « and place prescribed by law for said session ; and that the said Gene- « ral Assembly continued in session until the 24th day of December in «the said year, when the said General Assembly adjourned *sine die*about *“*10 o’clock, A. M. of said day; and the late Hon. Samuel Lowrie, one “ of the Judges of the Superior Courts of Law and Equity of the State aforesaid, died on the 22d day of December, 1817, about the hour of 8 •« o’clock, A. M. at his residence in the county of Mecklenburg, about “ 150 miles from the city of Raleigh aforesaid, and that the Hon. Samuel « Lowrie died, and the office of Judge which he held as aforesaid be- « came vacant during the aforesaid session of the General Assembly, and *“*that sufficient time elapsed between the death of the said Samuel « Lowrie and the adjournment *sine die*as aforesaid of the said session of « the said General Assembly of the State of North-Carolina as aforesaid, « for the said General Assembly to have known and been informed of «the said- death of the said Hon. Samuel Lowrie, and consequent « vacancy of the said office of Judge, and to have appointed a successor « of the said Hon. Samuel Lowrie to fill said vacant office before the “ time of their adjournment *sine die*as aforesaid; and that the said Hon. *“*Samuel Lowrie did not die, nor the said office of Judge which he held «as aforesaid become vacant, during the recess of the said General *“*Assembly j. but the said General Assembly was in session at the time of “ said death, and that his Excellency John Branch, Governor of the State « aforesaid, with tire advice of the Council of State, had no authority to «issue to Blake Baker, Esq. a temporary commission to fill the said *f_*vacancy occasioned by the said death of the said Hon. Samuel Lowrie, *184« until the end of tlie next session of the said General Assembly; and if *“*such commission has been issued by the Governor, with the advice of «the Council of State, it is an usurpation of power, not delegated to *“*them, or either of them, by the people of North-Carolina, is in violation *“*of the express words and in contravention of the spirit of the Conslitu- “ tion of the State aforesaid, and at warfare with the genius of her repub- *“*lican institutions; and that the said Blake Baker, Esq. lias not the *"*authority of a Judge of the Superior Courts of Law and Equity of the “ State aforesaid; and that he has no authority to hold the Superior *'v*Court of Law for the county of Bladen aforesaid, or to preside in the *“*same as Judge; and that he has no jurisdiction over the said action, *“*nor any authority to receive any plea or make any order, or give any *“*judgment in, to, or concerning the same; and of this he the said John * A. Cameron puts himselfupon the country, &c.

*“J.*A. CAMERON.”

To this Rejoinder the Plaintiff demurred, and the Defendant having joined in demurrer, the case was sent to this Court.

Henderson, Judge.

It is, to my mind, a very strange and incongruous proposition, that an answer is required to he given by A. B. whether he he a Judge, which answer' he cannot give unless he be a Judge. I plead that you are not a Judge: a Judge alone can decide the plea ,* and I call on you to decide. This certainly cannot he the way of testing Judge Baker’s appointment. The way is very *simple;*but it is not for this Court to point it out. It is said that the extent of the jurisdiction of all Courts is settled by the Courts themselves. This is true: but then it must be remembered that in all such cases there is a Court competent to *decide;*and it is called upon not to decide whether it is a Court, but the extent of its jurisdiction. The plea must therefore be overruled.

Taylob, Chief-Justice.

This is a plea filed by th* Defendant in person, objecting to the right in the late Judge Baker to hold the Superior Court of Bladen as the Judge thereof, on the ground that the Judge whose place, he was appointed to supply died during the session of the General *Assembly;*that the Governor and Council can *185supply only such vacancies, in the judicial department, as occur during the recess of the General *Assembly;*and that, consequently, the appointment and commissioning of • • Judge Baker were unauthorised by the Constitution. The pleadings are drawn out to considerable length, but it is deemed unnecessary to recite them, or to examine their sufficiency in point of form $ because the objection intended to be made is presented in an improper shape: the effect of assuming a principle wrong in itself, and building on a foundation radically defective.

The Defendant prays judgment if he ought to be compelled to answer to the Plaintiff in his said plea here depending. Whom does he ask to pronounce this judgment ? The person who is asserted by the plea to be constitutionally incompetent to render any judgment. If the person holding the Court were not a Judge duly autho-rised and rightfully commissioned, he could render a judgment in no case: none of his acts or proceedings could possess a judicial character, or be capable of affecting, in any shape, the rights or property of the citizens. It must he nugatory then, to propound to the person assuming this authority, a question involving his competency to decide; for that were to ascribe to his decision an authority which the very statement of the question denies it to possess. If he were to decide that he is a Judge, and proceed to try the cause and give final judgment, no efficacy could be imparted to such judgment by iiis decision : it would be *ipso facto*a nullity, in one case as well as in the other, and no act of his could give it the force of *res adjudicata.*The highest evidence of the opinion of a person acting in the character of a Judge, that he has a right to do so, is exercising the functions of the office. This has already been given ¿ and the strength of such evidence is not increased by his particular opinion to the same effect expressed, or a plea *to*the jurisdiction.

The plea, however, contradicts a fundamental maxim of all laws, that no man shall be a judge *in*his own cause, *186This is, iii an especial manner, the cause of the person called upon to decide it; for, if the power he exercises be an usurpation, he is indictable for a misdemeanor, and subject to fine and imprisonment. It is not necessary to say to what extent he would be liable to individuals injured by his acts, or to the public for executing the laws involving capital punishment. It is enough for the prin-1 ciple of this case to show, that Mr. Baker could not answer the question submitted to him by the plea, without deciding on his own amenability to a prosecution. The law wisely presumes that no one in such a situation can give a righteous judgmentj and if, as the plea assumes, he was incompetent to hold a Court, still less was he competent to decide whether he could adjudge in the particular case. The plea must be overruled, and the Defendant answer over.