Weekly standard. [volume] (Raleigh, N.C.) 1858-1865, 1863-07-15
THE HABEAS CORPUS
In the Supreme Court Of North CAROLINA, June
Term 1SG2

IN the supreme court OF N0r6b- C1TQtln0, JUNG
Term, 1863.
IN TUE NATTER OF BRYAN.
The question presented for the consideration Of
the Court is, whether the Courts and Judges Of
this State have the right to issue writS Of hGbsas
corpus for the purpose of inquiring into the legality
of the detention Of persons helin custody, by Off
GERS Of the Confederate States, as conscrpts under
certain acts of the Confederate Congress, The con-
stitutionality of those acts has never'been judi.
ciay questioned in this State, so that the only in
qu!ry is that which have just stated. Ny opinion
is decidedly in favor of the jurisdiction Of the State
Courts and will endeavor to state briefly the pro-
cess Ct reasoning, by which have been conducted
to this conclusion In the exposition OF my argu-
:nent it will be more convenient for ne to show
what were the power and authority Of the Courts
Of this State in relation to this matter while twas
i rcember Of the United States government; for no
one contends that they have less power and author
ity under the Confederate government
After the American Revolution, North Carolina
was sovereign and Independent In virtue
Of that sovereignty and independence, she was in.
rested with many and great powers md lpreroga-
tivcs, and had imposed upon her many Ind impor-
tant duties. Among these duties none was higher
than that Of protecting all her citizens in the full
and free enjoyment of life, liberty and private prop
erty. Fully alive to this duty, she, in the funda-
mental organization of her government, declared
"that no freemen ought to be taken, imprisoned or
deprived Of his freehold, liberties or privileges or
outlawed, or ex,led or in any manner destroyed or
deprived Of his life liberty or property, but by the
law Of the land. Declaration Of Rights sec. Ia
And again: "That every freeman restrained Of his
liberty, is entitled to remedy to inquire into the
lawfulness thereof and to remove the same, il un-
lawful, and that such remedy ought not to be de-
MED or delayed" Ibid, sec. 13. To give prac-
teal effect to these rights Courts were established
and Judges were appointed Had the State been
powerful enough to continue to exist as an indie.
pendent nation, nothing more would have been
wanted to secure the protection of her citizens -
But North. Carolina, for causes not now necessary
to be set forth, found it expedient to unite with
other States similarly situated, for the purpose of
forming new and distinct government; and in do
ing so all these States were compelled to give up
portion Of their former respective sovereigntes and
10 invest the newly created government with them.
Hence the adoption of the Constitution Of the Uni.
ted States, in which, after the enumeration Of all
the powers conferred on the general government 1t
IS declared, that the powers not delegated to the
United States by the Constitution, nor prohibited
by 1t to the States are reserved to the States re-
spectlvely, or to the people," See Amendments to
as the general government had no powers except
what the States had granted to it. either expressly
or oy necessary implication; but it was, out Of
ABUNDANT caution very properly adopted.
we are now to inquire whetaer the State gave
up any portion Of that sovereignty, which was me-
eessary to be retained for the purpose of enabling
ner 70 discharge the duty of protecting the personal
liberty Of her Citizens
=, AS tho Courts and Judges furnish, the. meaus
through which that liberty is to be yindicated let
Us see what authority or power has been taken from
mem. Alexander Hamilton, member of the Con.
sention which formed the Constitution Of the gen.
era! government, and one of its ablest expounders
declared in the s2d No. of the Feieraaist .. SIT.
mat the States will retain all pre- epstess sthor.
nss %nich may not be exclusively deieRatcd to the
federal head and that this exclusive elsSst;on can
only exist in one Of three cases: where nm exclu.
slve authority is il express terms granted to the
Union or where particular authority il Granted
to the and the exercise Of alike anthor;tv ia
prohibited to the States; or where an .i,thority is
granted to the Union, with which similar rsirt6or-
10y 10 .ne states would be utterly Incompatible
enough these principles may not apply With the
same force to the Judiciary as to the leo; sI.tue
nower, yet an inclined to think that tha1 ara in
the man, just with respect to the former no we no
Tltn the latter. And under this impression Oh II
~ 1t down as rule that the State Cours vii, s'
:as" the jurisdiction they now have, unless T. an.
aea.s 70 oe taken away in one of the enumerated
ADDE'S" Chancellor Kent, in the LIST vol os ~.
Cont p 396, in remarkng upon the rue as Tins ,,,s
stated IN the Federast says: IA concurrent iur;s.
dicton in the State Courts was admitted x al ;as
cept those enumerated case; but this doetriua was
only applicable to those descriptions Of causes ),
which the State Courts had previous eosnizsnce
End it was not equally evident in relation TO causes
which grew out of the Constitution. CONGRESS s Is
the course Of legislation might commit tbs decision
u causes arising upon their laws to the Fadera
courts exclusively; but unless the State /. Cour.,
we're expressly excluded by the acts Of Congress
they would, Of course, take concurrent cosnisane,
the causes to which these acts might give birth
subject to the exceptions which have been at,sad,
Among the causes, Of which the State Courts Ia,
previous cognizanee, none were more importan
than those in which they claimed the riisht,to in
quire through the means of writs Of ha6eas corpu,
into the reasons for the Imprisonment Of person
alleged sobe illegally restrained Of their liberty