Year: 1870

direct a precept to any sheriff, coroner or
other person to be designated therein, COM
manding him to bring forthwith before
such Court or Judge the party wherever to
be tounO for whose benefit the writ of ha-
beas corpus shall have been granted" "In
the execution of this writ the sheriff or
person designated may call out the power
of the county"


The petitioner is entitled to this writ;
the only question is. to whom should it be
directed. The motion is that it should be
directed to the Sheriff of some county.


have considered the matter fully and
have come to the conclusion not to direct it
to a sheriff. The act gives discretion. In
the present condition of things, the coun-
ties of Alamance and Caswell declared to be
in state of insurrection and occupied by
military forces, and the public mind fever
ishly excited; it is highly probable, nay,
in my opinicl, certain, that writ in the
hands of Sheriff, with authority to Call
cut the power of the county, by which
he is commanded with force, if necessary,
to take the petitioner out of the hands of
the military authorities, will plunge the
whole State into civil war;


If the Sheriff demands the petitioner of
Col. Kirk, with his present orders, he will
refuse, and then comes war. The country
has had war enough. But 1t was said by
the counsel of the petitioner " if in the as
sertion of civil liberty, war comes, let it
come! The blood will not be on your
hands or on ours it will he on all who dis
regard the sacred writ of habeas corpus. Let
Justice be done ii the heavens falln


Itwould be to act with the :mpetuosity Of
youth and not with the calmness Of age, to
listen to such counsels. Let justice be
done if the heaven falls" is II beautiful
figure of speech, quoted by every one of the
five learned counsel. Justice must be done,
or the power of the Judiciary be exhausted.
but would forfeit all claim TO prudence
tempered with tilmness should 1, without
absolute necessity, add fuel to the flame,
and plunge the country into civil war, pro.
vided my duty can be fully discharged with.
out that awful consequence. Wisdom die
tates if justice can be done, "let heaven
stand" Unless the Governor revokes his
orders Col. Kirk will resist that appears
from the affidavit of service -.


The second branch of the motion, that
the power of the county be called out if ne.
cessary to aid in taking the petitioner by
force out of the hands of Kirk, is as diff.
cult of solution as the first


The power of the county, or ''posse conf
tatUS," means the men Of tie county in aohch
the aorit is 10 be erccutel in this instance
Caswell and that county is declared to be
in state of insurrection Shall insurgents
be called out by the person who is to exc.
cute the writ, to join in conflict with the
military forces of the State2


1t is said a sufficient force will volunteer
from other counties; they may belong to
the association, or he persons who sympa-
thize with it. But the posse comitatuS"
must come from the county where the writ
is to be executed, it would be illegal to
take men from other counties. This is set
tied law; shall illegal means be rcsortcd to
III order to execute "a writ.


Again every able-bodied man in the
State belongs to the miiitia The Governor
is by the constitution commander-in. chief
of the militia Of the Stat,," Art Ill, sec s.
SO the power of the county is composed of
men who are under the command of the
Governor; shall these men be required to
violate, with force, the orders of their COM
manderin-C Chicl, and do battle with his
other forces that are already in the field
In short, the whole physical power of the
State is by the constitution under the con-
troll of the Governor; the Judiciary has only
Il moral power; by the theory of the con-
stitution there can he no conflict between
these two branches Of the Government.
The writ will be directed to tho Marshal
OF the Supreme Court, with instructions to
exhibit it, and copy oi this opinion to His
Excelency the Governor. II he orders the
petitioner to be delivered to the Marshal.
well; if. not, following the example of
Chief Justice fancy, in Mcrriman's case
Annual Cyclopedia, for the year 1861, page
sos, have discharged my auty, the power
of the Judiciary is exhausted, and the re-
| sponsibility must rest ON the Executive.
PEARSON
The following is the order of the Chief
Justice, to the Marshal:


To David A. Wicker, Marshal of the Su-


preme Court:


You are hereby commanded, in the name
of the State of North Carolina, forthwith
to bring James S. Scott, wherever to be
found, before me, Richmond M. Pearson
Chief Justice of the Supreme Court, at the
room of the Supreme Court in the city Of
Raleigh. 5ys.


] Harein fail not, have there this writ and
make due return. =


R. M. PEARSON,


Chief Justice Supreme Court.
INTRUcTIoN You will wait upon his
Excellency, the Governor, exhibit to him
this writ, and a copy Of the opinion in
Moore's case, and make return to me.
r. M. PEARSON,
Chief Justice Supreme Court.