Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1870-07-29
Judnc Penrson,a DcCIaIon-

custody of Col. Kirk, and the petitioner
for the writ Of HobenS Corpus to enquire
into the legality Of his imprisonment.
We have given to this opinion all the
consideration the Importance OF the CUES
| ton demands. We brought to its CON
sideration O strong hope and an earnest
desire to find it of such character that
we could give it cur unqualified approba-
ton. Our hopes are, however, so far from
being justified that we can scarcely find
| fitting language In which to express our
views concerning the course Of the Chief
Jus ice, and yet preserve tho Difference in
word and act that we always desire to
maintain toward the Judiciary of the land.
Chief Justice Pearson decides that the
writ of Habeas Corpus has not been sns-
pended in Alamance and Caswell by the
Governors pToclamatiors Of a state of in
surrection in those counties, aud that it
cannot be suspended so long rs the Con-
stitution is the Supreme law, and that the
Governor has no power to disobey the
writ of Ha6e0S Corpus or TO order the trial
of any citizen otherwise than by jury, nc
cording to the laws of the land.
In spite of this, however, and IL spite Of
the insolent refusal of Col. Kirk to obey
the writ, Chief Justice Pearson declines TO
grant an attachment against him, On the
ground that there was sufficient excuse for
the refusal, in the fact that he was acting
under the orders of his military superior,
the Governor. The insolence accompany
ing the refusal he passes by az " the flip
pant language of rude soldier" and in the
nature of the surplusage," we suppose,
referred to by the learned Judge in the case
&c parte, Moore and others. The Chief
Justice says :" So we have this case. Col.
Kirk is commanded by the Chief Justice
to produce the body. He is ordered by
his Commander in Chief not to obey the
writ. What was the man to do. He
elected to obey his orders. In my opinion
there was sufficient excuse for refusing to
return the writ. The motion is not allow
ed" Now be it remembered that the Chief
Justice has just decided that the Governor
could not disobey the writ of H0beaS
Corpus. The order, then, to Col. Kirk to
disobey it was an illegal order the act of
disobeying was an illegal net. The order
Of the Chief Justice to produce the body
was, however, a legal order and the act of
obedience III making q return thereto
would have been q legal act It follows,
therefore. according to Judge Pearson,
that Col Kirk had right TO mako his
election between a legal act and an illegal
ono, and that his election to do an illegal
thing was q Justification, or at least q
"su1icient excuse" fox failing to do legal
act made imperative upon him by the or
der Of the Chief Justice OF the highest
judicial tribunal in the STATE. Comment
is unnecessary.
The Chief Justice says he does not feel
il to DO his duty "to leave grave matters
and turn aside to put q rule on q rude sol
der to show cause for making fiippant
speech" That Kirk is crude soldier -
We wero fully prepared to believe before
we had this official judicial declaration.
That tho insolent message sent by the
officer Of the Court to the Chief Justice,
announcing that tho great writ Of Ntbeas
Corpus was played out is only ''lippant Ian
guago" we cannot admit. We sincerely
trust that His Honor, Judge Mitchell,
whose writs Kirk tore III pieces and whose
officer he imprisoned, will not so far fol-
low judicial precedent and "the reason
of the thing" as TO consider Kinks last
performance rs simply the rough jest OF q
rude soldier. If the Chief Justice be right,
however, in treating Kirk 5 message that
the writ had played ont merely as a 81 flip
pant Speech" we do not feel sure that
Judge Mitchell will not be justified in con-
sidering the destruction OF his writs and
the imprisonment Of his officers simply Gs
bit of playful pleasantly. We trust, |
however, that His Honor, Judge Mitchell, !
will not have so great an aversion TO F'turu-
ing from grave matters" and that for q !
while he will diSp0rt himself In 1.-THE glad
some light of Jurisprudence" as Lord Coke |
hath It, and take little healthful recre-
alton in "ruling up" this rude soldier, SO
fond of fippant speeches and rough jests, |
and teach him the reverence due to the
law of the land. The Chief Justice says of
the motion for an attachment, "the evil
dence upon whi2 it rests comes in ques- |
tionable shape, eXtraneOus matter put into |
an affidavit of service to excite prejudice.
We presume that the Chief Justice has no
intention to reflect upon the character OF
the gentleman who served the writ on
Kirk and who made the affidavit
Whether this be his intention or not is
matter of no import, however. for the
character of Col. ALEXANDER G. MoALIs-
TER for truth, for integrity, for intolIi-
gence, for courage, for honor, for consci-
eatious devotion to duty in every relation
of life is far beyond and far above any
danger from any assault from Richmond
n. Pearson, open or covert.
Having refused to punish Kirk for his
insolence, the Chief Justice grants pre-
cept to bring the prisoner before him.
without, however, granting authority to
summon the posse cODit1t,lS and directs the