The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-05-22

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| unless they shall severally appear on
| Tuesday June 18th, 1869, and show
| cause to the contrary; and further or
| dered, that a copy of the order should
| be served upon the parties referred TO-
| On the next day after that upon
which the rule of the Court was made
| returnable the answer of the respond
ents was filed severally as follows be-
| low-as adroit a piece of work as
| could we'll be conceived, the effect be-
| ing to at once disclaim any intention
of holding the Court in contempt, or
technically "purging' themselves, and
| at the same time to practically ana
| forcefully repeat the charges and insist
upon the protest already made. me
credit of the authorship of the origin
al protest is, l believe, given to the
Hon. B. F. Moore, While the answer
| is said to have been written by Ed.
| Graham Haywood, Esq, man WIN
| the brain and the temperament OF
Lord Bacon, and than whom no more
| brilliant lawyer has ever practlced IN
| the State. Both documents are mag
| nificently executed:
| 1.-The several answer of ------------
| to the Rule herein made by said
| Court and served upon him.
| 'This Respondent, protesting that
a Rule which deprives him even tenn
| porarily of his privileges as an attor-
ney of said Court, ought not to have
| been made in his absence, without no
| tice. and without affidavit or other
| legal proof of the facts upon which
said Rule is based respectfully an
swering says:
81. That he admits the signing and
publishing of the paper called "A
Solemn Protest of the Bar of North
Carolina against Judicial Interference
in Political Affairs" but insists that
the Supreme Court hath no authority
to make, or jurisdiction to enforce
said Rule.
80. That the publication referred to
in said Rule is not libellous and doth
not tend to impair the respect due 10
the authority of said Court.
'3. And for further answer this re-
spondent says that said paper was con-
ceived and prepared during the recent
| political canvass for the Presidency,
and it's publication deferred until af-
| ter the close of the canvass, to avoid
| it's having the appearance or paru-
| Fan document. He admits that his
purpose was to express his disappro-
| baton of the conduct of individuals
/ occupying high judicial stations yet
| as an act of justice to himself against
| the charge made in the Rule, he not
| only disavows, in signing and publish
| ing said paper, any intention of COM
hitting a contempt of the Supreme
| Court or of impairing the respect due
| to it's authority, but on the contrary,
! avoWs his motive to have been to pre-
serve the purity which had ever dis
| tinguished the administration OF JUS
| tice by the. Courts of this State.
| The rule was resisted by Messrs.
! Battle Person, Fowle, Barnes and
I Smith on the grounds that the court
! had no authority to make or jurisdlc-
| ton to enforce the rule; that the pub
/ LEGATION was not Iibellous and that the
answer above set out disclaimed the
| intent to throw contempt upon the
| Court.
| In an able opinion Chief Justice
Pearson held that while statute had
| been passed by the Legislature Of 1859
| defining contempt and. by implication,
taking away from the Court their COM
| mon law rights to attach for contempt,
! such statute could not be held to
have had that effect by implication.
| He also disposed of an objection that
| the rule was not founded on affidavit
| or proof as to the facts by saying
| that where the facts were in the
| senses of the court an affidavit was
not necessary. AS to the contention
F! that the respondents by disclaiminS
| the intent in words had come within
| the letter of the law and should not
! therefore be punished, Judge Pearson
indicated that, while admitting the
legal contention, he was fully con-
! scious of the wit and art with which
the answer had been drawn by max
ing this statement.
This is so vague that the Court is
unable to give to it "a positive mean
ing; and yet, it seems 10 imply that in
taking the oath the respondent meant
something which he hesitated to eX-
press, lest it might be taken to neu-
tralize the legal effect of his disaVoW-
al"
In the words of the Court the re-
spondents We're mot acquitted but eX-
cused.''
The analogy between the Moore
case and that of the case of the
Lumberton bar is very strong.
There was the same concert on the
part of the members of the bar;
The publication was made away
from the Immediate presence of the
Court;
In the Moore case no affidavit upon
which to base the Rule was made,
while in the case of the Lumberton
bar the affidavit was made on "infor-
nation and belief and strongly at
tackled by John d. Shaw, Jr., as insult
ficient on that ground.
But as / have stated several times
in my letters about this contempt pro-
ceeding, the two cases meet different
statutes. When the Moore case was
heard there was a statute which, by
implication attempted TO take away
the Courts common law rights IN
contempt proceedings; while in the
present instance there is statute, sus-
tanned by the Supreme Court dec1-
sions, which specifically takes away
those rights.
If it were not for this later statute
Judge PEBBLES would have in Elk Parte
Moore a precedent almost, as the law
yers say ION all fours" AS it is 1T is
puzzling to try to fathOm the line OF
precedents on which he must De re-
lying. His worst enemy will admit
that the judge is Il wonderfully apie
LAWYER and no one supposes that he
has gone into this fight without reel
ing himself on firm ground.
What that ground is may constitute
question that will give us a new
precedent in contempt proceedings.
Tempora, MOres!
The sharp distinction between the
nice ideas of legal and judicial Ell
nuette obtaining in the time OF Bragg,