Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1857-09-11
THE WILMINGTON JOURNAL,
7y71M1NcroN, N. C., FRIDAY, SEPT. IL, 1857.
C,rcu,t Court-The CIerkship.

The decrease of Mr.. Haywood, Tor many years CerN
IF tho Tinted States Circuit Court for this State haV
mo created vacancy in that office, some difficulty seems
r. have arisen in regard to the in which that
vacancy shall be filled, and by whom-two gentlemen
Edward CantwelI, ESQ.,, and Hon. Sion II. Rogers
claiming. the first under the appointment of Judge
WAYNE and the latter under that of Judge Potter This
matter seems to have given rise to feeling than we
had anticipated, and even, to some extent assumed
partizan character which is deeply to be regretted
It would seem that Mr.. Haywood, the former Clerk,
was appointed under the provisions of an act OF Congress
passed in 1902 which provides that the Circuit and
District Courts for North Carolina shall appoint Clerks
for said Courts respectively, &c. the power to appoint
Clerks for the District and Circuit Courts being given
in identical language by the law and if Court
has the power to appoint in vacation, the other has
and if one has not the other has not The provisions
of this law were extended to the Courts of all the States
by the general law of $780, which provides that" All
the Circuit Courts of the United States shall have the
appointment of their Clerks, and in the of a
disagreement between the Judges the appointment shall
be made by the presiding Judge of the Court"
The Circuit Court is composed Of one Justice Of the
Supreme Court who is the presiding Judge, and of the
District Judge who is the associate and the effect OF
this law u.s. in case of disagreement to vest the appoint
ing power in the presiding Judge, Who in this case
Judge Wayne.
Previous to this time believe the CUSTOM with the
execution of n c. and one or two other States, was
for the Clerk of the District Court to act as Clerk
oe;o of the Circuit Court from which it arose that
officer of the Circuit Court might be appointed or re-
moved without the consent and in opposition to the
wishes of the presiding Judge of that Court Indeed the
immediate occasion of this enactment was case OF the
kind occurring in Louisiana, where Judge Lawrence OF
the District Court removed the incumbent and appoint
ed another gentleman in his place. as Clerk OF the Dis
trict Court and the appomtee claimed and exer-
csed the right to act Clerk ero6co Of the Circuit
Court in opposition to the wish Of Judge Mckinley the
nresiding Judge The act of 1888 met the case but
created another difficulty The presiding Judges are
and must be non-rcsidens of the greater number OF
States in their Circuits and of vacancy arising in
their absence which the District Judge could longer
supply might occasion injury to sutors and seriously
delay business
This gave occasion to the act of March 1848 under
which Judge Potter appointed Mr.. Rogers. That act
nrovides that In case of vacancy in the office Of
Clerk of any Circuit Court Of the United States in va
cation the Judge of the District Court in the district
within winch SuCn OOCuo' mug "IPOt' q Nloh
who shall hold said Office until the end of the next term
of the Circuit Court for such district, unless the office
sooner filled by an appointment according to er'dng
lars"
It is contended on behalf of the claim set up for Mr.
Rogers that he holds at least until the next meeting
the Circuit Court and that the only power of appoint
ment in vacation is that conferred by the law just refer
red to- independent of which neither Of the Judges have
the power of appointment and vests this power II
the District Judge therefore the Presiding Judge can
not act at all until the Court meets
In the opinion of Judge Wayne, the presiding Judge
who subsequently appointed Mr.. Cantwell the Crcul
Court has the same power of appointing in vacation
that the District Court has and the power OF this latte
is not denied IT. under existing laws that is, OF law
rs they stood before March, 1913 the Circuit Court ha
the power to appoint in vacation, then that power
Judge Wayne who is the presiding Judge, and the al
pontment made by the District Judge is only tempOra
~ until an appointment is made according to existing
laws" If the Circuit Court, equally with the DlSrlc
Court possessed under laws prior to l848, the right
apDOintmcnt in vacation, then Mr.. CantWcl is enlte
to the ofce-f it had not then Mr.. Rogers must hol
the appointment until the Court meets Reasoning rol
analogy from the fact that the appointing power cor
ferred in identical language upon the Circuit and Dl
trct Courts we can see no reason for doubling the pow
er of the former Court any than of the latter whc
is not called in question.