Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1871-02-10

! of liberty than the exemption OF citizens
from arrest except by due warrant oil
law. So q
In the case of Josiah Turner, Jr., he wa,
arrested in the county of Orange, which
had not been proclaimed to be in insurrec-
tion, and therefore the respondent is de
prived of even this shallow pretext fol
justification. And his plea that he did not
order his arrest in that county, but ONLY in
the counties of Alamance and CasWell,
cannot avail him, as he confesses that when
informed of the arrest, he authorized the
detention of the prisoner, thereby giving
his sanction to his arrest, as though it had
been made by his order in the first in
stance. Even the rights Of aoa1' are not to
extend beyond the place where the insur-
reetion exists; nor to persons not connected
with 1t; nor even within the scene, to per-
sons or property Of citizens against whom
no probable cause exists. See Luther rs.
Borden, Howard, 81.
As conclusive OF this whole matter the
Chlef Justice in ec pdrte, Moore, decided
that as means TO- suppress insurr ection,
the detention of the petitioner as mill
tary prisoner Is not proper means, for
it violates the bill of rights. Sec Habeas
Corpus case, p. So
Articles five and six charge the arrest
and imprisonment of Adolphus G. Moore,
others, citizens of Casweli county, and the
refusal of George W. Kirk. acting under
the orders of the respondent, to surrender
them e. tue judiciary Tor examination in
obedience to the writ of hd6eaS corpus.
The respondent acknowledges that said
prisoners were detained by his orders and
that the refusal to deliver them in obedi-
ence to the exigcucies of the writ was by
his authority.
Snction 81 of tbo 5ccIorot;op of ,;oL4,
declares that "the privilege of the writ of
ho6eds corpus shall not be suspended"
Adol 2hus G. Moore, citizen of Ala
nance. filed his petition before Chief JUS
tice Pearson at chambers, on the 10th of
July, 1870, liz which he alleged that on the
18th day of July, 1870, while he was about
his lawful business in said county. he was
arrested and detained by squad of per
sons pnrpnrtipg to be soldiers, acting I'M
der the order Of one George ". Kirk
That bail WAS offered 10y him and denied
by said Kirk-that his arrest was without
warrant andIfor no cause, and he therefore
prayed tho Chief Justice to grant him the
writ of habedS corpus. to be directed to the
said Kirk, commanding him to produce
forthwith the petitioner before His Honor
together with the cause of his arrest The
writ was granted as prayed for on the same
day. On the 18th dap of July it was duly
served uponlthe said Kirk, who upon being
informed of its contents declared ''That he
could take no notice of such papers-that
they had played out-that he was acting
under orders from Governor Holden, with
instructions to disregard such papers that
the Court had been appointed to try them
(the priRoners,) and that he would surren-
der them on Governor Holden 8 order, but
not otherwise unless overpowered by force.
This return having been made to The
Chief Justice on the 18th day of July, he
Immediately informed the respondent that
Kirk had refused to make return of the
writ, and asked whether Kirk ''acted under
his orders" On the day following the &C
oused replied that "Col. Kirk made the
arrests, and now detains the prisoners
named, by my order. He was instructed |
firmly but respectfully to decline to deliver
the prisoners"
The Chief Justice, in announcing his
decision on a motion for the arrest of
Kirk for contempt of Court. said 81 de-
clare my opinion to be, that the privilege |
Of the writ of hdbedS corpus has not been
by the action of His Excellency;
hat the Governor has power under the
and laws to declare county
10 be in a state of instruction, to take
military possession, to order the arrest of
Ill suspected persons. and to do all things
necessary to suppress the instruction, but
le has no power to disobey the writ Of
,ubedS corpus, or to order the trial of any
itizen otherwise than by jury. According
o the law of the land, such action would
re i'll excess of his power"
Writs of hdbedS corpus were also issued
N the Goth day of July upon the petition
f John Kerr and eighteen others, citizens
f Caswell county, by the Chief Justice.
here writs were placed in the hands of
ieorge Williamson, for service on the
aid Kirk. On the goth of July said Will
amson filed an affidavit. which I propose
0 read:
George Williamson makes oath that,
% is a citizen of the county of Oaswell,
nd quail jed elector of the State of
forth Carolina that writs of ha6euS cor
rs in behalf of all the persons above
AIMED, issued by Richmond M. Pearson,
thief Justice of the State, were placed in
Is hands, for service upon George W.
Kirk. That he went to Yanceyville with |
be said writs, on the 9th of July. 1870
nat the prisoners above named were, as {
q was informed, confined in the Court o
louise ut that place !; that he found armed
9ntiDels surrounding the Court House :
lat for the purpose of seeing the said :
feorge W. KIRK, and serving the said .
rits. he attempted to enter the Court ;
louise square, when he was stopped at the r
aLo LuefeOI Dy 6enGlne1 a6 the 6alu
ate atfiant told him he wished to see
o!onel Kirk ; an officer was then called,
ad came out he was said, in atlantis pre- s
'nce. to be the Adjutant he asked affiant +
hat was his business affiant told him he
ad communication for Col. Kirk he o
'ked the nature of it /; affiant told him he :,
referred to see COL Kirk the said Adju-
mt then entered the Court House, and -
srson said to be Major Yates, came out :
affiant-asked atlantis name. and that o
another person with affiant, which was c
ven him. The said Yates then asked I
liant what was the nature of the commu- II
Ication he had for Col. Kirk. Affiant told b
m they were writs of Aabeas corpus issued 4
? Chief Justice Pearson taking the said :
rlts from his pocket at the time which he e
!shed to serve upon the said Kirk. He s.
Id afiant that he would have nothing to 81
} with them-and that he, afIiant, n
uld not see Colonel Kirk. He, a
o said Yates finally said Col. Kirk was "
lsy, but might see him in half an hour
liant then retired to the piazza of a store,
view of the Court House. Some half o.
hour or more afterwards seeing the O