Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1870-07-29
not mine to pass upon these facts or judge


Mr. Badger, of counsel for His Excel
lency, relied on the Constitution eth
IGovernor shall be commander in chief
land have power to call out the militia Il
execute the law, suppress riots and ineur
rections and to repel INVASION" Art. XII.
sec. 3. And on tho statute, act 1S69-'7O
chap. XVII, sec. 1, "The Governor is
hereby authorized and empowered, when
ever in his Judgment. the civil authorities
in any county are unable to protect its
citizens in the enjoyment Of life and prop
erty, to declare such county to be in state
of instruction, and to call into active
service, the militia Of the State, TO such
an extent as may become necessary to sup
press the irsurrection;" and he insisted,
/. This clause Of the constitution and
the statute empowers the Governor to de.
clare county to be in state of insnrrec-
tlon, whenever in his .judgneent The civil
authorities are unable to protect its citi-
zens IN the enjoyment of life and property
The Governor has so declared in regard to
the county OF Alamance, and the judiciary
cannot call his action in question or review
1t, as the matter is coDfided solely to the
Judgment Of the Governor.
2. The Constitution and this statute CON
fers on the Governor all powers "neces-
sary" to suppress the in9urrection, and the
Governor has taken military possession of
the county and ordered tho arrest and de
tcntiou Of the petitioner military
prisoner. This was necessary, for, unlike
other iLsurrcctione, 1t is not open resist
aDco, but "a novel kind Of instruction,
seeking To effect its purpose by q secret
association spread over the country,
gcOurging and other crimes commit
ed III the dark ind evadiDg the civil
authorities by masks, fraud, perjury and
intimidation. It follows that the privilege
OF the writ of habeaS corpus is suspended
III that county until the instruction be
suppressed. L accede to the first propo-
sition full faith and credit are due to the
action of the Governor in this matter, be-
cause he is the competent authority, acting
in pursuance of the constitution and the
law. The power from its nature must he
exercised by the Executive, as III case of
invasion Or open instruction. The extern
Of the power is alone the subject OF Ju-
dicinI determination. As to the second,
it may be that the arrest and also tue de
tention Of the petitioner is necessary as IL
means to suppress the insurrection. But
l cannot yield my assent to the conclusion;
the means must be proper. as well as neceS-
sary, and the detention Of the petitioner
as n military prisoner, is not u proper
means, for 1t violates the Declaration Of
Rights. '"Hhe privilege of the writ Of
Habeus corpus shall not be suspended. -
cypress provision, and there is rulo Of
construction or principle of Constitutional
law by which IN express provision can be
abrogated and made CT force by the
impIic0tiO1a from any other provision Of the
instrument.
Tho clauses should bo construed so 81 to
give effect to each, and prevent conflict
This is done by giving to Art. XII, sec. 3,
the effect OF allowing military possession
- fcIr,
all suspected persons, 10 be made by mill
tary authority, but requiring by force Of
Art. l, sec. q. the persons SO arrested
to lie surrendered for trial 10 Tho civil
authorities on A0beaS corpus, should they
not bo delivered over without the writ.
This prevents conflict with the habeds
cOypuS clause and harm0nizos with the
other articles OF the "Declaration Of
Rights" trial by jury, &c, all Of which
have been handed down TO us by our faith
ers and by our English ancestors, n great
fundamental principles, e5sentia! for the
OF civil liberty.
I declare my opinion to be- that the
privilege OF the writ OF Au5eus corpus has
not been suspended by the action Of his
E!xcellepcy. That the Governor has power
under the Constitution and laws to declare
a county to be IN state OF insu1rection,
20 take military possession, to order the
arrest OF all suspected persons and to do
all other things necessary to suppress the
but he has no power to dis
obey the writ of AabedS corpus, or to or
der tho trial Of any citizen otherwise than
by jury, according to the law of the land.
Such action woEld be in excess of his
power.
The Judiciary has power to declare the
action of the Executive, rs well as acts of
the General Assembly, when in violation
of the Constitution, void and of no effect.
Having conceded full faith and credit to
the action Of his Exceliency within the
scope of the power conferred on him, [
feel assured he will in like manner give
due observance to the law rs announced by
the Judiciary. Indeed he cannot refuse
to do so, without taking upon himself the
responsibility Of acting on tho extreme
principle, "The safety Of the State is the
supreme law" L will venture to hope, as
evil as the times may DO, our country has
not yet reached the point when a resort
TO extreme measures has become public
necessity.
2. The motion for an attachment against
Col. Kirk is based on the hubeas corpus act,
acts 1865 90, chap. l, sec. Is. IF any
person Oh whom writ of hd6eds corpus is
served, shall refuse or neglect to obey the
same by producing the body. &C., within
the time required and no sufficient excuse be
Sh01cn, it shall be the duty of the Judge or
Court, forthwith to issue an attachment
against such person to tho Sheriff of any
county in the State, commanding him i'm
mediately to arrest such person and bring
him before the Judge or Court, and such
person shall be committed to Jail, until he
shall mako return to the writ, and comply
with any order that may be made in reIa-
ton to the party for whose relief the writ
shall have been issued"
Col. Kirk has refused to make return.
The question is, do the facts before NE
Sc shoe q sufficient excuse ?'' The affidavit
sets out that Col. Kirk put his refusal on
the ground that he had orders from his
commander in chief, who is the Governor
of the State, not to obey the writ. His Elk
cellency avows that Col. Kirk was acting
under his orders. So, wo have this case.
Col. Kirk is commanded by the Chief JUS
tice to produce the body. He is ordered
by his commander in chief not to obey the
writ. What was the man to do He elect
ed to obey his orders In my opinion there
was sufficient excuse for refusing to return