The weekly standard., 1870-07-27

- Inc governor is ncreOy "a, al and
empowered, whenever in his D. ut the
civil authorities in any coul.,. unable
to protect its citizens in the cnj''. uent of
life and property. to declare s.. .,unty to
he in a state of insurrection, o.. -. call into
active service the militia OF he State, to
such an extent as may become .,'cessary to
suppress the insurrection"-ard he insisted: ::
1. This clause of the Col .tion and
the statute empowers the Go,,"or to de-
clare county to be in sac o. insur
rection whenever in his judgmert tbs civil
authorities are unable to protect its citi-
zens in the enjoyment of life and property.
The Governor has so declared in regard to
tho county of Alamance, and the judiciary
cannot call his action in question or remove
it, as the matter is contided solely TO the
judgment of the Governor.
2. The Constitution and this statute con.
fers on the Governor all the powers "neces-
sary" to suppress the insurrection, and the
Governor has taken military possession of
the county and ordered the arrest and de-
tention of the petitioner as military pris.
oner. This was necessary, for unlike other
instructions it is not open resistance, but a
novel kind of insurrcction, seeking to effect
its purpose by a secret association spread
over the country, seeking to effect its pur-
pose by secret association, scrurulng and
other crimes committed in Il dark, and
evading the civil authorities, by masks
and fraud, perjury and intimidation.
1t follows, that the privilege of the writ
of habedS corpus, is suspended in tina, cnun-
ty, until the insurrcction be suppressed.
l accede to the first proposition; full faith
and credit are due to the action of the Gov
ornor in this matter, because he is the com
petent authority, acting in pursuance of the
Constitution and the law. The power from
its nature, must be exercised by the execu
tive, as in case of invasion or open insurrec-
ton. The extent of the power. is alone the
subject of judicial determination.
As 10 the second, it may be, that the ar
rest and also the detention of the prisoner
is necessary, as means to suppress the in
surrectlon. But cannot yield my assent to
the conclusion; the means must be proper
as well as necessary, and the detention of the
petitioner as a military prisoner, Is not pro-
per means. For it violates the declaration
of rights "The privilege of the writ OF
hGbeas corpus, shall not be suspended,"-
Constitution, Art. /, Sec. 81.
This is an erpress provision, and there is
no rule of Constitution or principle of con-
stitutional law, by which en- express provi.
sion can be abrogated and made of no force
by an implication from any other provision
of the instrument. The clauses should lbe
construed, so as to give effect to each and
prevent conflict. This is done, by giving to
Art. XII, Sec g. The effect of allowing
military possession of county to be taken
and the arrest of all suspected persons, to
be made by military authority, but requir-
ing by force OF art. l, sec. 81. The per.
sons arrested, to be surrendered for trial,
to the civil authorities on haJeas corpus,
should they not be delivered over without
the writ.
This prevents conflict, with the ha5eas
corpus clause and harmonises with the other
articles of the declaration Of rights trial
by jury, &C., all Of which have been handed
down to us by our fathers, and by our En-
glish ancestors, as great fundamental princi-
Piles, essential for the protection OF civil lib.
erty.
declare my opinion to be, that tie priv
ilege of the writ of haJeGs corpus has not
been suspended by the action OF his Excel
lency, that the Governor has power under
the constitution and laws to declare a
county to be in state of insur.cction, to
take military possession, TO order the arrest
of all suspected persons, and TO do all things
necessary 10 suppress the Instruction " .le
has no power to disobcy the writ OF ,aJtas
corpus, or to order the trial of any citizen
otherwise than by jury. According to the
law of the land, such action would be in
excess of his power.
The Judiciary has power to declare the
action of the executive as well as the acts OF
the General Assembly, when il violation oi
the constitution void and of no effect. Having
conceded full faith and credit to the action
of his EXcellency, within the scope OF tin
power conferred oa him. feel assured h,
viii in like manner give due observance tt
the law. as announced by the judiciary
Indeed he cannot refuse to do SO. without
taking upon himself rae responsibility o
acting on the extreme principle: "The safet,
of the State is the supreme law" I vii
venture to hope, as evil us the times NAV I've
our country has not yet reached the point
when resort to extreme measures has be
come public necessity.
ts.2. The motion ior an attachment against
Col. Kirk is based on the hadeaS corpus acy,
acts 1868 SO, chap. l, sec. 10. If any per-
son on whom writ of habeds corpus is
served, shall refuse or neglect to obey tie
same by producing the body &C., within the
time required, and no sufficient excuse b.
shoDn, it shall be the duty of the Judge ol
H0,,rt fprthyutth 70
against such person to the 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 sucI
person shall be committed to Jail, until be
shall make return to the writ and comply
with any order that may be made in relation
to the party for whose relief the writ shall
have been issued.
Col. Kirk has refused 10 make return. The
question is, do the facts before me, "show 9
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, moi
to obey the writ. His Eycelency avow
that Col. Kirk was acting under his orders
So, we have this case: Col. Kirk is com
manded by the Chief Justice to pr due,
the body. He is ordered by his Command
erin Chief not to obey the writ. What wa
the man to do? He elected to obey his or
iers In my opinion, there was suificien
excuse for refusing to return the writ Th
motion is not allowed
The act in question does not rest on tin
idea of Furnishing for contempt Of the judy
or Court, but of compelling return to th,
writ, and the production of the body. 1t il
a substitute for the provision in "thc ole
habeas corpus act" which punished the of
ficcr or person refusing or ncglecting II
make due return, "apnn convection by in
dictment," with fine OF $500 for the frs
offence. Of $1,000 and inca pacity to hold
Office fOr the second. The late act Is an i'm
provemcnt upon the former, by Substituting
the speedy remedy Of attachment in plac,
of indictment, and the severe punishment o
Imprisonment in place of fine Both act
are evidently intended 10 punish for no
making return, and t 9 last is also intended
for the immediate relief of the party il
whose behalf the writ is issued. The motion
of furnishing for Con cnpt OF the the judge
or Court is not involved in either act. Ger
taiDly not in that oi 1SGS-'GJ: hat is pro
vided for by " the contempt act" (samr Sc
sion). The proceeding is, by II ,Hie {. .itos
cause, why an attachment shuuLl not issue
And yet was urged, with. much vchemence
by learned and aged counsel, to rule Col
Kirk up for contempt of the Chief Justice
in this: The affidavit of service sets out
that Col Kirk, when the writ WAS served
said, "tell them such things are played
out; l have my orders from Governor Hol
den and shall not obey the writ" ~ vii
surrender them on Governor Holden's or
der, but not otherwise, unless they send ;
sufficient force to whip me-" This, as Wa:
well said by Mr.. Badger, is the language o
rude soldier, and not as courteous rs WI
usually find in judicial proceedings. Th'
motion for rule to show cause for this con
tempt is not pertinent to the matter now or
hand. The evidence on which it rests comes
in a questionable shapc-extraneous matte