¶1(dissenting). I agree with the conclusions of the court in respect to all the questions presented in this cause, except that which challenges the constitutionality of the act permitting an Oyer and Terminer to be held to try an indictment for murder without the presence of a justice of the Supreme Court. That act, I am compelled to think, was beyond the power of the legislature to enact.
¶2It is not open to doubt that all the judicial functions and powers existing in the Supreme Court at the time of the adoption of the constitution of 1844 were, by the provisions of that act of the will of the people, placed beyond the power of interference or diminution by legislative enactment.
¶3At that time there had been, in my judgment, conferred upon the Supreme Court the judicial function of constituting by one of its members the Courts of Oyer and Terminer, which were incapable of doing any judicial act without the presence of a justice of that court. This authority was conferred by the provisions of the act of 1794, not upon a particular justice, nor upon any one of such justices to whom a judicial district was assigned, but upon the court itself, to be exercised b^r any one of its members. So it was properly held in that court that a record of the Oyer and Terminer could be authenticated by the signature of any one of its members, although he had not been present at or taken part in the trial which was the subject of the record.
¶4As the act in question here permits an Oyer and Terminer to be held without the presence of any justice of the Supreme Court, I think that it has interfered with and diminished a judicial function and power of that court, and so is obnoxious to the constitutional restriction on legislative action in that respect.