Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1871-04-14

too, is satisfactory indeed, full and COM
plete-
The fourth charge is an exceedingly
grave and serious ono. The privilege of
the writ of hdbeas corpus has ever been
held among 'he ,leareat rights Of The
citize II OF the UuIted States Without The
right to bav" the Legality Of the capture.
detention Utd Imprisonment of the citizen
Inquired iuto. tue liberty O which We so
mnch b ,Rai. bee pmes IL mere empty sound
without any fDnLdati"h. ILdr.d it be
come falls a. Il hyp- critical cry. Our
Revolution y f';berr VIII traced the
Constitution of The Z. istd Staiee, duly
appreciate d Ills lie It au.l important right,
and guard Il 1T br Iurtrt'rg it ut, that
instrument, ;m NJ rle :ioh'bit,oLa upon
the powers u CUDSrehe. paragraph 2,
section Of Article l Tue privilege of
the writ of hdbeHS co1p"S eEall not he
suspended. unless WheE in cases Of re
beIion OF Invasion. lie public safety
may require It.. The present constitu
ton Of North Carolina mphatically says,
''tbe privilege of the writ of hdbeaS corpus
shuE not be Suspsnded'-a positive prohibi-
t.tu, without exception. The right to
suspend this great privilege, even by the
hight ST authority of the United States. is
utterly lnconsiS'ent with time Of peace,
aud t1,e IL imers f our fundamental law
have cautiously guarded the right of the
citizen In this particular. Except in leases
of rebellion or invasion, when the public
safety may require it," the privilege of
this great writ of right can never be s1s-
pended. Only in a time of war can any
authority in the United States exercise
this power. If our State Constitution
was entirely silent on the sabiec', it is be-
! lieved that The Constitution of the United
| States 10 sutli cient TO prohibit any State
authority from it's exercise without the ex-
L1e Al
paragraph of section 10 of the 1st article
of the Constitution Of the United States
the following language occurs: ''No Stste
shall, without the consent OF Congress, lay
any duty OF tonnage, keep troops or ships
OF war IN time Of peace, enter into any
agreement CT compact with another State,
or with foreign power, or engage in war,
unless actually invaded. or in such immi-
nent danger as will not admit Ct
! delay" It will, therefore, be seen that
the States are forbidden ''to engage in
war;" and az the right to suspend the
privilege of the writ of hdbeds corpus. at
most, exists i'll even the United States
authorities only when in cases of rebel
lion or Invasion the public safety may re
quire it," surely it can hardly be contend
ed that any State authority, which is for
hidden ''to engage in war" can exercise
this power, which is only Incident to q
state of war, rebellion or inv 4sion." No
more serious charge could be brought
against tt e respondent. Is the charge
sustained hy the proof ia the case Did
the respondent Suspend the privilege of
this great writ of right That he did re
fuse to obey the witt, L think. is admitted
in the answer of the respondent. On
pages 30 and 81 of respondents answer
the following language will be found {:
"Furthermole, this respondent admits
that the said Adolphcs G. Moore applied
to the Homo. able Richmond M p. ars II,
Chief Justice of North CaFolina, for the
writ of habeds corpus. to jhe end set forth
in said fifth article, and that the said Chief
Justice caused the said writ to be issued
and directed to the said George ". Kirk
commanding him to produce The body Of
said Moore, at the time AMI place
alleged in said fifth ultic:e and
this respondent further admi's that the
said writ was served ON the SAID KIRK, AMI
"that the said Kirk made no returu there
to aud refused to obey the same, and that
this failure Oh the part # said Kirk to
make return 20 said writ aud to produce
the body Of said Moore in obedience here
to, was done by the order of this respon-
don't as Governor of North Carolina" /
take this to be- an admission that he re-
fused to obey the writ, aud having an or
ganlHed military force under oIders to re-
slst the execution Of the writ. it amounted
in point of fact to snspending the writ -
Was the respondent authorized to do this
by the Constitution and laws of the State?
have undertaken to show that the Con
s:ltution If the United States fJrblds the
exercise of thus extraordinary power by
any authority Of State. l have unquee-
tiouabIy shown that the Constitution of
North Carolina positively f0fbids the sus-
pension of the wit. How then can the re-
spoGdent justify the exercise of the power?
He undertakes this task by asserting that
these counties were in instruction. In
my arguments urou the first charge, I Gu
deayurod to show that there G ,uld net be
Il state of IusuriectIOu where the civil nu =
thOrltles" were Ia he fu l. free and unrc-
siralne d exercise If TIC IT powers, and were
not RI ST t ii in tbs execution of tie laws.
L also referred 20 tie proof in THE case to-
show that there was no ro6IA!ance to :he
execution of the laws III A!amance and
Casweii, aud that the "civIl authorities
were IN the full, free and unrtt trained
e1etC15a OF tbe!r powers. If my cOnciu-
SONS worr correct the defence on this
point III ceesar.iy fails. But it is contend
} ell that III" act Of the Legis'a AZURE confer
red upon the respondent discretionary
power, and that We cannot 60 behind the
prUclan4 zion TO ascertain how the fact is
III refer ance - the question OfineIrrection
| do not believe, as / lave heretofore 10
such arbitrary power was intended to be
conferred 10y the act Of tho Legislature
} even as to The proclamation of insure @
ton. The 10 pondout cannot in this way
Justify act In direct violation Of the
Constitution. The history OF the Legis~
} Iature on tlis subject negatives any such
idea RS that tho act WIS intended to confer
2 upon the respondent tue power to suspend
} the privilege of the writ of hu6euS corpus
In direct violation Of the words of the Con
, stitution. All that car be contanded with
any kind OF pla,lsibility is that the act au-
, thorized the respondent to declare con-
. SructiUe instruction subject to the pro-
hibitions Of the Constitution Of North
Carolina. But it is now insur-
> rection did exist for the purposes Of the
action OF the respondent, and that in cases
3 OF insurrectlon suspension of the writ is
l a necessary incident. II this were so in
? ordinary cases, still l maintain that it
could NOT be so ia North Carolina under
= the present Constitution. because tue pow.
j er to suspend is positively forbidden. I