Semi-weekly standard. [volume] (Raleigh, N.C.) 1853-18??, 1863-07-14
TIE HABEAS CORPUS.
In tie Supreme Court Of North Carolina, Juns
Term 1868

Term, 1868.
IN THE MATTER OF BRYAN.
Tho question presented for the consideration of
the Court is, whether the Courts and Judges of
this State have the light to issue writs of habeds
corpus for the purpose of nquring into the legality
Of the detention Of persons held in custody by Off
GERS Of the Confederate States rs conscrip.s under
certain acts OF the Confederate Congress. The con-
stitutionality of those acts has never been judi.
cally questioned in this State so that the only in
qriry is that which have just stated. Ny opinion
is decidedly in favor Of the jurisdiction of the State
Courts, and will endcavor to state briefly the pro-
cess Ct reasoning by which have been conducted
to this conclusion. In the exposition OF my argu-
ment 1t will DO more convenient for me to show
what were the power and authority of the Courts
oil this State in relation to this matter while it was
member of the United States government; for no
one contends that they have less power and author
lty under the Confederate government
After the American Revolution North. Carolina
was sovereign and independent State. In virtue
of that sovereignty and independence she was in
vested with many and great powers and preroga-
tves, and mad imposed upon her many and 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
deprived of his life, liberty 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 a remedy to inquire into the
lawfulness thereof, and to remove the same, if
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 inde-
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 compelled to give up
portion of their former respective soveregntieS and
TO 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 Ststes by the Constitution nor prohibited
by it to the States, reserved to the States
speGtiRely, or to the people" See Amendments to
Con. Art. TO- This article was indeed unnecessary,
as the general government had no powers except
what the States had granted to it. either expressly
or by a necessary implication; but it was, out Of
abundant caution, very properly adopted.
We are now to inquire whether the State g1ve
up any portion of that sovereignty, which was ne
cessary to be retained for the purpose of enabling
her to discharge the duty of protecting the personal
liberty of her citizens
As the Courts and Judges furnish the means
through which that liberty is to be indicated let
us see what authority or power has been taken from
them. Alexander Hamilton, member of the Con-
vention which formed the Constitution of the gen.
'ral government and one of Its ablest expounders
declared in the 82d No. of the Federast D. 377
"That the States will retain all pre- existent author
ities which may not be exclusively delegated to the
federal head and that this exclusive delegation can
only exist in one of three cases: where an eXclu-
siVe authority is il express terms granted to the
Union; or where particular authority is granted
to the Union and the exercise of like authority is
prohibited to the States; where an authority is
granted to the Union, with which a similar author
ity in the States would be utterly Incompatible
Though these principles may not apply with the
same force to the judiciary as to the legi slatiVe
power, yet am inclined to think that they are, in
the MAN, Just with respect to the former as we'll as
with the latter. And under this impression shall
lay 1t down rule, that the State Courts will re-
tain the jurisdiction they now have, unless it APP
pears to be taken away in one of the enumerated
modes" Chancellor Kent, in the 1st vol. of his
Com, p. 396, in renarking upon the rule as thus
Stated in the FederalIs says: concurrent juris-
diction in the State Courts was admitted in all
cept those enumerated cases; but this doctrine
only applicable to those descriptions of causes Of
which the State Courts had previous cogniZance,
md it was not equally evident in relation to causes
.7hich grew out of the Constitution. Congress in
the of legislation, might commit the decision
of causes arising upon their laws to the Federal
Courts exclusively; but unless the State Courts
were expressly excluded by the acts of Congress,
they would, of course, take concurrent cognizance
of the to which these acts might give birth,
subject to the exceptions which have been stated"
Among the causes, of which the State Courts had
previous cogni2ance, none were more important
than those in which they claimed the right to in--
qure, through the means of writs of habeas corpus
into the reasons for the Imprisonment of persons
alleged 10 be illegally restrained Of their liberty