The weekly standard., 1870-08-10
Opinion of the Chief Justice of the su.
preme Court ofNorth. Carolina.

l declare my opinion to be that there is
no ground for an attachment or for rule
to show cause, but that the petitioner is en-
titled to have an order, authorizing some
qualified voter of the State to make proper
service of the writ; for that purpose | shall
designate the Marshal of the Supreme
Court
BY the habeds corpus act, sec. 81, by who
served and manner Of service. tits provided,
The writ Of habeas corpus may be served
by any qualified voter of the State, thereto
authorized by the court or judge ordering
the same"
George Williamson was not aa'iuriz ID
by me to make service of the writs upon Col
Kirk In the case of Moore and others,
when the writs were signetl, | asked the
counsel, "shall order witnesses to he sum-
moncd?" R"piy, 1--WE will attend to
to that matter" who shall nuth1rize to
serve the writs?" Reply" The sheriff of
Alamnnce is under arrest: We will get some
one to serve them aud make affidavit of
servicc." was thinking about the old hG
Jsds corpus act and supposed the late act had
changed the law. Why the counsel of the
petitioner did not ask to have some elcctor
authorized TO serve the writs, is :, matter
not known to mr-far be 1t from me TO be-
lievc that the omission was of purpose to
bring about Il collision. On the contrary,
| believe it was bona .fde inadyctance on
their part us it was on mine, in not locking
at the provisions of the new hdbeas corpus act.
But so it is-tlc matter passed, and on
the application for the writs in favor of
Kerr and others, / signed the writs and
nothing was said about the service.
1t thus has happened, that the person who
served the writ in Moore und Others,
and the person who attempted to serve
the writs on Kerr and others, we're
not aut .orized to do so, and Colonel
Kirk was justified in treating William
son as an intruder il to his camp the
more aggravated because Williamson was
one of the insurgents of the county of Cas-
well. say "insurgcnt," for although MIR.
Battle. in his remarks in moving for an at
tachment against the Governor on the com
ing in of his reply to the proceeding had
by the Marshal, took occasion to say, that
while he agreed generally with the conclu-
sions in the opinion filed by me- he differed
un the question, that all OF the citizens of
county declared to be in a state of nsurrcc-
ton are to lie deemed insurgents. adhere
to that opininn-they are all to be taken as
being insurgents, until the insurrection is
suppressed and some change in their rela-
tions is made Indeed, 1 did not enter
into discussion of the question, and took
the principle to he scttled-on the plain
ground that as long as man remains in
the county he must be taken to be an insur-
/ gent; because, in the nature of things, it is
impossible to make any distinction. Who
is TO decide while country is in state Of
insurrection, whether this man or that man
is well affected or disalfectcd This inquiry
can only be made after the instruction is
suppressed.
Mr.. Battlc put this case: The county OF
Guilford is declared to be in state of in
surrcction; is Justice Dick to be deemed an
insurgent? Certainly, unless he comes out
from among them y or his statas be fixed
by proceedings had after insurrcction is sup
pressed ! am glad to find that Chief Jus
tice Chase, IN Mrs. AIcxantlcr's cotton case,
takes the same view, ed Wallace, page 404.)
He says, I'VE must be governed by the prin-
ciple of public law so often announced from
this bench, as applicable alike to civil and
international wars, that all the people of each
State or district in insnrection against the
United States must be regarded as enemies,
until hy the Legislature and thc Executive,
or otherwise, that relation is thoroughly and
permanently changed"
This principle goes as far back as our
Anglo Saxon ancestors. BY the common
law every inhabitant of "a hundred" or
township, was liable for the value of any
goods stolen within its bounds, unless the
thief was apprehended and brought to JUS
tice, 'or hue aud cry made" Hence the
cry, stop thief" Justice Dick, who is Gu
rious in such matters, informs me that the
| word " neighbor" is derived from two Saxon
Words. meaning near, pledge every
man being a pledge for those who lived i'll
the same hundred" and all being liable,
and all the rain falleih on the Just as well
as the unjust"
1t would have been we'll, and savel much
cost and much danger of civil strife, had
the "neighbors" or citizens of the County of
Caswcll considered every man as pledge
for the good behavior of all of the other in
habitants, and seen to it, that the pcrpera-
| tors of murder, committed in the Court
| House, on The day of political meeting,
and in the day time, was brought to justice,
or hue and cry" made If the murderers
| fed
Col. Kirk seems to be, in some measure,
| justified in not permitting an insurgent, who
was not authorized by me- to make service
of the writs.
But have declared my opinion to be that
the writ of haJeas corpus is not suspended,
(er parte Moore,) and feel it to be my duty
to enforce the writ or exhaust the power of
the judiciary. The writ will he handed to
David A. Wicker. Marshal of the Supreme
Court, with authority to make service in
pursuance of the habeas corpus act.
r. NJ. PEARSON,