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

81 p n .|
ANSWER TO THE RULE TO SHOW CAUSE.
United States of Amssica-Bsfore Hon
George W. Brooks, Judge of the District
Court Of the Uuited States for the District
Of North Carolina In the matter Of
Adolphus g. Moore-At Chambers
For the answer to the rule made by your
Honor in this cause, returnable on the 23d
day of August, A. D. 1870, at Raleigh, the
respondent George W. Kirk, respectfully.
shows that in failing to return the body OF
the petitioner before your Honor at SANS
bury, he did not intend and disayows any
disrespect to the mandate of your Honor or
contempt for your Honors authority, but
that he acted therein under the advice OF
counsel learned in the law to the effect that
the writ of hGbeas corpus issued by his Honor,
the Chief Justice of North Carolina, as SCI
forth in his return, had always remained in
full force and effect; that this respondent
was bound to obey the first mandate, as
obedience to the writ issued by your Honor
necessarily involved him in contempt to the
Jurisdiction of His Honor the Chief Justice,
and respondent appends the proceedings
held before Chief Justice Pearson in the
matter of A. G. Moore marked B as in part
of his answer.
Respondent further shows that the petit
toner has not since been remanded to the
possession, custody, power or control of re-
respondent, but vet remains in custody of
the law. G. W. KIRK.
Sworn and subscribed before me the 23d
day of August, A. D. 1870. ,
N. J. RIDDICK.
JUDGE MERRMoN opened for the petit
toner A. G. Moore. The motion was for a
rule to show cause why the respondent
should not be attached for contempt for an
insufficient return to the writ of habeas cor
pus issued by his Honor Judge Brooks. 1t
was radical mistake, he said, in Mr.. Bailey,
who addressed his Honor yesterday, forthe
respondent, to suppose that the application
for ha5eas corpus was in the nature of
suit 1t was a summary proceeding, not
equitable, depending upon the sound dis
cretion of the Court before which it is in
stituted.
The object of the writ was to enable a
proper officer to determine when a citi-
zen was held in custody, where, how and
why he was so held, and to release him if
wrongly held. To constitute an answer to
the writ three things were required-1st,
the presence of the body before the court,
or the reason why he is not so present; I'd,
the cause of the caption, and Sd, the reason
why the body is detained-and the produc-
ton of the body was the most essential.
1t was no part of the defence to the mo-
ton for the rule that the respondent had
purged himself of the contempt by saying
no contempt was intended. If the body
was not present, and the cause was not suf
ficiently clear, the contempt was full. In
two ways the production of the body might
be excused--by sickness, where the person
could not come, or by death, where the body
could not be produced; OF further, that the
respondent had previously given up the
body to another competent tribunal before
the writ was issued. Judge NJ. cited cases
to show this, but said that he could find
none that held good the answer where the
body had been given up to another tribunal
after the issue of the writ.
Judge Merrimon admitted that the tribu
nal first getting the body was entitled to it,
provided the authority was competent He
commended that the jurisdiction of Chief
Justice Pearson was .functus-indced he
never had jurisdiction through the interven-
ton of wall of bayonets. This court,
Judge BrooksO, had removed the bayonets
and it seemed ridiculous to suppose that
Judge Persons court could now step in and
take advantage of the work done by Judge
Brooks. After the refusal of Col Kirk to
deliver the body to Judge Pearson it then
became race between the two courts for
the jurisdiction and the United States court
having got if, it would not, said Mr.. NJ,
comport with the dignity of one court to
give up its jurisdiction to another which
had failed to get it for itself. Judge Merri-
mon said that this court had been ousted of
its jurisdiction by subterfuge, and that of
itself amounted to contempt.
Judge NJ. rccited the proceedings before
Judge Pearson to the point when he de-
clarcd the power of the judiciary exhausted.
A positive refusal to give up the body was
all that could be obtained. Nor was it
proposed to produce the body at any future
day. No attempt was even made to give
up the body till superior power constrain-
ed the respondent, and then the body was
given up to a defunct jurisdiction
Judge Pearson was at the wall and could
do no more, and even suggested that the
petitioners counsel could go elsewhere.
The petitioner proceeded to another reme-
dy in the U. S. Court, on the announcement
of Judge Pearson that he could do nothing
for him. In answer to the argument of Mr..
Bailey that the counsel for the petitioner
did not consider the matter at an end in
Judge Pearson's court by asking there to
withdraw the proceedings, Judge M. said
that that course was pursued out of abun-
dant caution-to prevent the possibility of
trouble thereafter; but if the proceeding
was functus in that court no earthly power
could again give it vitality and renew the
Jurisdiction.
The giving up of the body to the defunct
Jurisdiction, he admitted, might purge the
respondent of the contempt of this court,
but the demands of the petitioner had not
been complied with. The body had been
given up to man not rightfully entitled to
it, and this court, said Judge NJ, does not
know what has become of it. nor is there
word in the return to show that it is at
large. Concluding he said, that Judge
Pearson's jurisdiction being fanctus, he had
no more right to the body than he Judge
M had.
Gov. GRAHAM commended that the pro-
ceedings of Judge Pearson were irregular in
bringing the Governor into this matter--a
novelty in jurisprudence, in substituting
military orders for judicial oaths. he cited
authorities to show the mischievous ten
dency of this. He, Gov. Co. combatted
the decision of Judge Pearson that the act
of Assembly under which these measures
were taken gave the Governor power to ar
rest all suspected persons. The act says the
Governor may declare County in state
of instruction, but it does not say that the
County shall be so when so declared. The
question, he contended, was an open one for
the courts to say if instruction really ex-
listed. Gov. G. cited authorities on this
point. 1t was an error, therefore, to say that
the mere word of the Governor made insur.
rection. Judge Pearson was in error, also,
in stating that every man in the Counties
declared in state of instruction was an
insurgent. Judge Thompson, Gov. G. said,
would require proof of the insurgency.
| Then it was an error in Judge Pearson in
saying that citizens of County summoned
| to go with the Sheriff as a posse could not
90 if the Governor said they should not.
The law suEordinates the military to the
civil law. The call of the Sheriff is made
in the name of the people. The Governor
has no civil power as commander-in chief OF
the military. Again, the Chief Justice was
mistaken in his fear of bloodshed, in insist
ing that the Governor should not inter
pose between the law and the wrong doer.
Gov. Graham now addressed himself to
the main question. To the plea that little
harm had been done by short detention he
said that a man had as much right to an
hour of liberty as to chat of a whole life
time. Was the question OF time to be raised
on question of liberty. 1t was the ques-
ton of time which gave birth to the writ
of habeas corpus.
Gov. G.. commended that the refusal to
give up the bodies at the time demand.
ed ended the proceeding. Every writ
makes its exit when there is a con.
tempt-a writ returned with de-
claration not to obey it. That was the