The weekly standard. [volume] (Raleigh, N.C.) 1869-18??, 1870-08-31

ment for the respondent. In si's his
remarks he said that where thee s,.,ii law
prevails every man charged with he has
right to be heard by counsel Of ms choice.
No matter what the character at the man
may be, the profession in Engls Il and in
this country were never known TO desert
the culprit, and he trusted neve' ) see the:
day when they would, no matter what may
be the character of the clamor ar, and them.
Mr. McCorkle then went on t. say that
the speech of Gov. Graham had I. IN mainly
devoted to the action and CON net of the
Governor and Chief Justice Pea, IN. This
would come with better grace :, another
place. He (Mr. McC.D was Tot here to
criticize men, but to answer rule. There
were other times and places for the former.
The enquiry was, has the defendent offered
an indignity to this court in not
returning the bodies at Salisbury; all
else was foreign and was lugged in
for he did not know what. He in
sisted the return was complete. At the
time of the issue of the writs by this Court,
q prior writ was out. He argued the ques-
ton OF priority in connection with that of
concurrent Jurisdiction. He denied that
Judge Parsons writ was tunetus. A few
days ago the counsel on the other side
thought it had life Learned and able men
as they are-too learned and able to do
foolish acf and they moved to withdraw
the entire proceedings The writ must have
had some vitality. They could have moved
for its withdrawal before the bodies were
taken before Judge Pearson; then it would
have been dead. After the business had
been gone into they moved to withdraw the
petition because the jurisdiction was defunct
Mr.. McCorkle cared nothing for the re-
finement of the matter as to whether this
is suit or not. It is matter existing and
before Judge Pearson. And now it is pro-
posed to attach Kirk after the process was
served upon the Governor. The fact that
the Supreme Court Marshal subsequently
served process on Colonel Kirk made no
difference. Judge Pearson recognized no
answer Of Col. Kirk as return nor did he
think his functions dead, for he still expect
ed to take action on the writs. Mr. Nc
Corkle insisted that the return must be taken
as true as it was of record and not contra
dicted; and that shows that the prisoners
were given mp, and Judge Pearson having
IA Lahcu dCtlOu vi luc IlluttCt III Ill lldfC
considered the matter as alive He (Mr.
McC) went on to show that the motion for
an attachment on the ground of an INSULT
Gent return could not be sustained, for that
the counsel on the other side did not admit
the existence of any return at all. Attach
ment follows only wilful contempt. There
was no contempt of this court because of
obedience to court in which respondent
was then in contempt. Respondent was
advised by counsel to obey the writ and
the advice was right, and was intended to
keep him out of contempt in any court. 1t
was his duty to return the prisoners to the
authority serving the first writ.
In answer to the position taken by Judge
Merrimon, that there was no complete juris-
diction till the Judge was in possession of
the body, Mr.. McCorkle said that this would
prevent the ever recurring of conflict, for
whenever one court got possession of the
body it was no longer in the custody of the
respondent but in the power of the law.
Mr.. McCorkle concluded that the respon-
dent was entitled TO a discharge on all the
facts. In closing he handsomely eulo-
discharge the rule.
JUDGE BATTEE, by permission, stated that
the petitioners took the ground that re-
turn to writ consisted of two parasitic
writing and the body, the latter most i'm
portant, and without the return of the body,
the court had no Jurisdiction except to COM
pei the return of the body.
Hrs HONOR JUDGE BROOKS, in rendering his
decision, said, that on question of such
importance it was perhaps proper to take
some time to consider the matter but his
mind was clerly made up The opinion of
this court, he said, cannot affect the Gov
ernor nor Chief Justice Pearson; it affected
Kirk alone.
The question was the cause of the deten-
ton of the prisoners, and is the return pro-
per? 1t gave him, Judge Brooks,) pleasure
to find the defendant represented by able
counsel, and to state that the question had
been well and ably discussed. The propri-
ETY. of the profession to defend in all proper
cases was conceded. 1t is the privilege and
the duty OF the profession, and he took
pleasure in stating that the defence in this
case had acted with great proprety.
Coming to the question Of Kinks con-
tempt, he said he took it for granted
that the proceedings before Chief Justice
Pearson were all in accordance with law.
We know, said Judge Brooks, how the
writs were treated Kirk did not give up
the bodies. The Chief Justice said his
power was exhausted. The tendency of
this proceedings was at no time stop
ped. This court issued the writs as it
was bound to do. The law under which
the return is made fixes the time. Kirk had
ten days in which to make his return. Du-
ring that time no action could be taken.
Then Kirk appeared and answered that an
other process from competent authority in
tervened to prevent the return being made
to this court and that he had made return
to that This excuses him or not as that
return is a live, existing process.
Kinks return was that he had made return
of the bodies to competent civil authority
and out of the hands of the military. This
appears in form this court cannot ignore.
This court cannot overlook the fact that the
return secures the investigation claimed by
the prisoners. Judge Brooks called attention
to the fact that be Gid not use military
title when speaking of Kirk, because he was
acting without authority of law He was
forced to believe that the petitioners were
relieved of all military restraint, and if now
restrained it was by the authority of civil
law. The court would go as Tar as it ought
and no farther, on any account. On the
question of contempt the intent must be
noted. In Kinks case he asks to be judged
by his acts, and no evil has resulted to any
one by his course in the return. "For these
reasons therefore dismiss the rule"
The court then adjourned till o'clock
this morning, when other proceedings will
be had touching Col. Kirk, &c.
In CHAMBERS, Aug. 26.-To-day the con
sideration of the motion for bench warrants,
CONTINUED from Salisbury against Col. G.
W. Kirk, Lieutenant Colonel Burgin, Major
Yates, and others of Col. Kinks command,
was resumed before Judge Brooks, U. s.
District Court, at Chambers, in the Senate
chamber, in this city.
Gov. Graham and Judge Merrimon ap-
peared for the petitioners, and j. M. Nc
Corkle and W. H. Baily, Esqs., for the de-
PENDANTS.
The object of the application was to have
warrants issued restraining the defendants
from certain alleged unlawful acts, and to
bind them to the peace. A number of aft
davits were read by Judge Merrimon and
Governor Graham, setting forth the alleged
causes of complaint illegal arrests, brutal
treatment Of prisoners while in custody, and
threats for the future. 81 ~. -5,, I. t+.,.i
JUDGE MERRIMoN commended that his
Honor Judge Brooks had Jurisdiction in the
matter; that the offences committed were in
violation of the Constitution and laws of
the United States, and punishable as such ::