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

ne would use tno military to restore IG
that he ordered the arrest of Josiah Tur
ner, jr.. in Orange county, which had not
been declared in resurrection, and by his
officers kept the said Turner prisoner for
several days that he, without warrant of
law, drew large sums of money from the
Treasury for the payment OF these troops,
and that be disregarded a writ of Injunc-
ton forbidding the paymaster to pay said
troops, and ordered him to turn over the
money in his possession TO another for
the purpose of having it disbursed accord
ing to his unlawful orders before the sec
ond party could be epjoined.
| On this statement of facts, it is
claimed by the managers that the
respondent is guilty of the various
charges contained in the Articles
The respondent replies that he was au-
thorized by the act Of Assembly, 'To Sc
cure the better protection Of life and pro-
perty. ratified the Goth day of January,
1870, to declare the said coun mites in a state
of instruction; that the courts were I'm.
equal TO the duty of enforcing the law, and
chat he was obliged to resort to military
force to preserve order that the par
ties arrested were members of secret or
ganlzatlOn. having for its object the over
throw of The government, and tI+t they
could not be otherwise dealt With than by
the means and in the manner he used; that
the peace of the State demanded he should
tep as military prisoners the persons az
rested until the proper time arrived for
snrrendering item TO the civil authorities
and claims that his military force was
rigbtfully organized as militia troops. 1t
Is to me perfectly apparent that O case is
made out against respondent unless b is
deferces thereto Justify him.
/ shall first examine she articles charg-
ing him with the commission of II high
crime in declaring the counties in ID state
Of Insurrection. To my mind the authori-
ties cited are conclusive that there can be
no secret inSuTTectiOn that to constitute
instruction there must be open armed
resistance t. the existing government by
some of the persons owing allegiance there
to. Now the facts are that in Caswell
two men are murdered, and III Alamance
two murders arc committed and EunGry
persons of low character, arc logged; that
these Cutrages were cOmmIItel IN
secret, signifies only that the perpetrators
thereof feared the law rather tnan dclied
it; that 50 far from defy ing civil law tLcy
sought to evadC It's expected penalties i,y all
the ruses their ingenuity could invent. Ii
instruction bc a fragrant opposition to
and dehnance of the existing government
the course OF those who committed the
Ontrages has none of the ''Outwerd and
visible" sigma Of insurrecti0n These in
fractions of tho law were committed by
members of sec1e ct associations, bat it does
not appear that the objects of those asko-
Citations were resistance 10 established
government. AID the commission OF such
acts rs partake of the nature of iusurrec-
ton They did not undertake to subvert
The existing government, the courts were
not lnterfered With, process could at all
times be served, persons accused OF
crime coull be tried and punished
if jury Of their couutrymeu had found
them gully, aud tue forms Of law at least
remained. T. is trne the respond mt claims
that the spirito of our beneficent Institutions
had departed and that juies always failed
to convict men belonging 20 these crSani
cations. Ii that were 50 IAN assertion not
Sustained by evidence) the fault was III the
mode Of trial, and is al evidenGo Of the
lneficlencY OF human devices to attain a
perfect administration Of justice. 1t is .
alleged that witnesses and jurors would .
not do their duty-would perjure them /
selves, and the criminals would escape
''unwhipped Of JUSTICE yet, if this were
40, the very act which the respondent
claims gave him authority for his action,
provides for the removal Of the trial of
these very offenders to other counties than
those Ia which the offence was committed.
But to my mind, while the existence Of .
such state of society is to be GeplOred
and while it is to be regretted that the
sacred institution of trial by jury should .
ever cease to operate as a wholesome check
On crime, yet this does not Constitute in
.urrection. nor does the commission of any
number OF offences. whether punished or
not having a different nature from insur-
rection, constitute that offence.
The respondent, however, relies on the
' Shoffner act" without entering into q
discussion of the constitutionality of the
.ct. and only characterizing it as an I'M
wise grant OF discretionary power, perhaps
beyond the scope of legislation under the
Constitution of North Carolina 7 am of
opinion that the respondent was by the
erms of the act itself, forced to exercise
proper discretion. Now, not regarding the
ubtle distinctions that the learned conn
e have argued at such length, a dispas
ionate consideration of the facts forbid
ne to view the conduct of the respondent
IS being the result Of a desire to execute
he law. 1t IS apparent to my mind that
le was actuated by motives hat should
lot govern the executive of the Stale. He
lid not have at heart the discharge of the {
luties incident to his offices SO much as other
designs, which We're totally incompatible
With those duties. His intent, his object,
$ plainly shown by the facts. Col. Clarke,
was arranged, was to have had charge [
# the military organization but this ar
was set aside, because lie is 6
aan of too much character to answer the i
purposes Of respondent, and was re I
laced by a person of VIGOROUSLY bad {
equation, imported into this State as q
roper tool to accomplish sinister purpo- I
es. To secure fitting material for the ex- i
cution OF the vile project, an illegal force {
) raised partly from the lawless regions of E
'ennessee, and these troops, well suited to :
hey such a leader in such an enterprise, T
re cent ilto county who're no Instruction ]
xlsts where no outrages are being COM 4
lifted, and where there is q strong force of y
'nitea States troops already quartercd, L
nder the pretezt Of suppressing insurroc- Y
on, bat with the real intent to control the O
cotton. Now what was the conduct of Y
lis officer and his troops, as showing the b
ltent Of their commander, the respondent ? G
hey arrested without warrant, without 8
all. and on no charge, the political oppo- {
ents of their commander; they incarcerated T
lese prisoners, against whom there was Il,
DIT particle of evidence aud who vera | a