Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1870-07-29
writ was served. said. cell them nneh

AAOLA OOF anu S1dlk DOG OD0y Tilt
writ - l will surrender them on Gov. Hol
denis order. but not otherwise, unless they
send a sufficient force to whip me-" This
as was well said by MIR. Badger, is the Ian.
guage of rude soldier and not as cour-
teous as we usually find in Judicial pro-
ceedings. The motion for a rule to show
cause for this contempt is not pertinent to
the matter now on hand. The evidence on
which 1t rests comes in questionable
shape, extraneous matter put into an aft
daylt Of service to excite prejudice, and
the motion made at the instance of one
who is under arrest for the horrid crime of
murder by midnight assassination at a
| time when, as Mr. Bragg feelingly remark
ed " we ale in the last ditch we look to
the Judiciary as our only hope. if that fails
US the country is gone gone gone T.
do not feel it to be my duty to leave
grave matters and turn aside TO pm. rule
on rude soldier to show cause :or making
a fippant speech. L will be borne out by
every member of the profession in saying,
during thirty years have had the honor
of a seat on the bench, have never been
slow to punish for contempt and preserve
the dignity Of The Court when [ believed
there was an intent to assail it. / know
my duty and trust have firmness enough
TO discharge il. These remarks seemed
called for because of the earnestness with
more courtly but fully IS strong as that
used by the rude soldier, and the excited
manner IN which I was reminded of my
duty and exhorted to perform it, nay, the
oath of office was read to me. and l had
the benefit Of hearing read much OF the
lofty language OF Lord Mansfield.
3. The motion for q precept directed to
the Sheriff Of some county to bring the
petitioner forthwith before me- and If nee
l. ~,i+ :, Il; of E,c
county, il based on the 18th and 18th
sections Of the habcos corpus act. The
Court or Judge may direct precept to
any Sheriff, Coroner or other person to
bo designated therein, commanding him
to bring forthwith before such Court or
Judge the party (*horover to be found)
for whose benefit tho writ o. tQbeas corpus
shall have been granted Gin the execu,
ton Of this writ the Sheriff or person
designated may call ont the power of the
county,"
The petitioner is entitled to this wit :;
the only question l., to whom should it be
directed. The motion is that it should be
directed to til Sheriff of some county.
have considered the matter fully and
have como TO the conclusion not to direct
it to Sheriff. The act gives discretion.
IN the present condition OF things, the
counties Of A!amanco and CasWel declared
to be in Il state OF insurrectiou and occu-
pied by military forces, and tho public
mind feycrshly excited: it Is highly proba-
bic, nay, il my opinion, certain, that
writ IN tho hands Of q Sheriff, with an
thOritY t. cali out the power Of the cOun-
ty) by which he is commanded with force,
ii necessary. to take the petitioner out OF
the hands Of the military authorities will
plunge the whole State into civil war.
If the Sheriff demands tho petitioner Of
7pI l,a !
refuse, ana then comes war. Tho country
has had war enough. But It was said by
the counsel ot the petitioner, ''if III the as
scrtion Of civil liberty, wax comes, let it
come The blood will not he on your
hands or on ours; IL will be on all Who dis
regard the sacred writ Of Hdbeds c0fpus.-
Let Justice be done If the heaY fall"
It would be to act with the impetuousity
OF youth AMI not with the caImness Of age,
to listen to such cOunselS. LET justice
be done il tho heavens fall, =" is a beautiful
figure OF speech, q0ot8d by every one OF
the five learned counsel. Justice must be
dOue, or the power Of the Judiciary DO ex-
hausted, hut would forfeit all claim to
prudence tempered with iirmuesS should |
without absolute necessity, add fuel TO the
flame, and plunge the country into civil
war, provided my duty can be fully dis
charged without that awful consequence.
''let heaven stand" Unless the Cover
nor revokos his orders Col. Kirk will re
sist; that appears from the affidavit of ser
vice.
The second branch of the motion, that
the power of the comfy be called out il
necessary to aid in taking the petitioner
by force out Of the hands Of Kirk, is rs
difficult Of solution as the first.
The power Of the county or ''posaa com
l IL L.
which the writ is to be executed; IN this
instance Caswell, and that county is de-
clared to be in a state of insurrection. -
Shall 13SNrgents be called out by the per
son who is to execute the writ 10 join in
conflict with the military forces Of tho
State
1t is said sufficient force will volunteer
from other counties. They may belong to
the association or DO persons who sympa-
thize with 1t. But the ''pOssc cOmitatu9"
must como from the county whore the writ
is to be executed. IL would be illegal TO
take men from other counties. This is
settled law. Shall illegal means bo resort
ed to in order to execute writ
Again, every able-bodied man in the
State belongs to the militia. The Gov
ernor is by the Constitution "Commander-
in-Chief of the Militia of the State" Art
III, sec. 8. So the power Of the county is
mand of the Governor. Shall these men
be required to violate with force the order
of their Commander-in-Chief, and battle
with his other forces that are already in
the field ? In short. the whole physical
power of the State is by the Constitution
under the control Of the Governor. The
Judiciary has only O moral power. By the
theory of the Constitution there can be
no conflict between these two branches of
the Government.
The writ will DC directed to the Marshal
Of tho Supreme Court, with instructions 10
exhibit it, and copy of this opinion to
his Excellency, the Governor. Ii he
orders the petitioner to be delivered to
the Marshal, well; if not, fol
lowing the example of Chiof Justice
fancy in Merriman's case. Annual Cy-
clopoelia, for the year 1861, page 555, I
have discharged my duty, the power Of the
Judiciary IS exhausted, and the RESPONSE
bility must rest on the Executive.
PEARSON.