Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1870-08-12
From the Raleigh Sentinel
Opinion Of ts2e CEsisf Justice of the 2H-
pztf,lG Court Of North Carolina.
LXPARTE KERR,


The counsel of the petitioner OF the af
fidavit Of George Williamson, who is q
qualified voter and citizen of the county
of Caswell, submitted q motion for on at
tachment Or ruIe against. G.. W. Kirk for
not making return to the writ OF he6eas
c0rpus, if upon the facts set out it be con-
sidored that the writ was duly served, or
for an attachments for wilfully obstructing
and preventing service, Or for any other
writ TO which upon the facts disclosed the
petitioner may be entitled.
[ declare nly opinion to be that there is
no ground for an attachment Or for rule
to show cnuse, but that the petitioner is en-
titled to have an order, authorizing some
qualified voter Of the State to make proper
service of tho writ; for that purpose shall
designate the Marshal of the Supreme
Court
BY the Au6eas corpus act, seo 80. by who
served and manner Of service, it is pro-
vided, '"rhe writ OF h06e1s cnrpus may be
served by any qualified voter of the State,
thereto authorized by She court or Judge
ordering She same"
tteOrgo Williamson was not authorized
by re TO make service Of the writs upon
! Ool Kirk. In the case of Moore end
! others. when the writs were signed, L ask
| ed the counsel, " shall order witnesses to
| be summoned ?" Reply, " We will attend
10 that matter" WHO shall authorize
| TO serve the wTits ?" Roply-' 'rhe Sheriff
| Of AlamGnce is under arrest /; we will get
some one 70 serve them and make affidavit
| OF service" l was thinking about the old
hdbcds corpus act and supposed the late act
had changed the law. Why the counsel of
| the petitioner did not ask to have some
| eIector authorized TO serve the writs, is a
matter not known to ne-far be it from
me 30 believe that the omission was of
| purpose to bring about collision. On
the contrary, believe it was bona .ti0e
inadvortance on their part as it was on
mine, in not looking at the provisions Of
the new habe0s corpus act.
| But so it is-the matter passed. and on
| the application for the writs in favor OF
Kerr and otho-s, signed the writs and
nothing was said about the service.
1t thus hos happened, that the person
who served tho writ on Moore and uthers,
and the person who attempted to serve
| the writs on Kerr and others, were not au-
thorized to 90 scs and Colonel Kirk WAS
| justified in treating Williamson as an in
truder into his camp, the more aggravat-
ed because Williamson was one OF the in
surgents of the county of Oaswell. l say
''insurgent," for although Mr.. Baltic, in
his remarks in moving Tor an attachment
against tho Governor on the coming in OF
his reply to the proceeding had by the
Marshal, took occasion to say, that while
he agreed generally with the conclusions
in the opinion filed by me, he differed on
the question, that all of the citizens of a
county declared to be in a state of insur-
rection are to be deemed insurgents. I
adhere to that opinion--they arc all to be
taken as being insurgents, until the insur-
rection is suppressed and some change in
their relations is made. Indeed, 1 did
not enter into discussion of the question,
and took tho principle to be settled-on
the plain ground that as long as a man re-
mains in the county he must be taken to
be an insurgent; because, in the nature of
things, it is impossible TO make any dis
tinctiou Who is to decide while a ooun-
try is in state of insurrection, whether
this man or that man is we'll affected or
disaffected This inquiry can only be
made after the insnrrection is suppressed.
Mr.. Battle put this case The county OF
| GuiHord is declared to be In q state Of in