Ex parte Moore
| Decision Date | 23 July 1870 |
| Citation | 64 N.C. 802 |
| Parties | Ex parte ADOLPHUS G. MOORE and others. |
| Court | North Carolina Supreme Court |
Upon the 16th day of July 1870, petitions were presented to Chief Justice Pearson, at the Chambers of the Supreme Court, by Messrs. Battle & Sons, Graham, Bragg, Merrimon and Parker, upon behalf of Adolphus G. Moore, and three other citizens of Alamance County, representing that they had been arrested upon the day before, and were still detained, by one George W. Kirk, under a show of military force, and asking for writs of Habeas Corpus.
The writs were accordingly issued upon the same day, returnable immediately, at the same place.
Upon the 18th day of July, these writs were returned, with the following affidavit:
A. C McAllister makes oath, that on Sunday the 17th of July 1870 between the hours of 10 and 11 o'clock, A. M., in the County of Alamance, on the highway, leading from Company Shops in said County to Yanceyville, in the County of Caswell, in said State, about nine miles from said Company Shops, he delivered to George W. Kirk, who was at the time apparently in command of a large body of armed men, the writ of Habeas Corpus, of which the paper writing hereto attached is a true and perfect copy; that the said George W. Kirk said, on receiving the said writ, and having part of the same read to him, and hearing what the same was, and inspecting the signature of the writ, that he could take no notice of such papers; that they had " played out." That he was acting under orders from Gov. Holden, with instructions to disregard such papers. He further said: Take the papers back and tell them that the Court has been appointed to try them, (meaning the men in custody,) that he would surrender them on Gov. Holden's order, but not otherwise, unless they sent a sufficient force to whip him, and take them (meaning the persons mentioned in the several writs,) away from him. He said to a person appearing to be a subordinate of his: " I told you, if any such paper came, not to allow them to be brought to me." Affiant is a citizen of Alamance County, and a qualified elector of the State of North Carolina. He delivered the said writ to the said Kirk at the request of E. G. Parker, Esq., Attorney for the petitioner, the Sheriff of Alamance County having been arrested, and still being held in custody by said George W. Kirk.
| (Signed,) | A. C. MCALLISTER. |
Sworn to, & c., this 18th of July 1870.
W. H. BAGLEY, Clerk.
The above paper having been read to the Chief Justice, after some discussion, the matter was deferred until 3 P. M., and at the latter hour, in consequence of the following communication to the Governor of the State, a reply to which the Chief Justice said he would await until the next morning, the further hearing of the case was postponed until the morning of the 19th.
RALEIGH, July 18th, 1870.
To His Excellency W. W. HOLDEN, Governor of North Carolina:
SIR:--I have the honor to enclose copies of four writs of habeas corpus-- issued by me to Col. George W. Kirk--together with affidavits, setting out that Col. Kirk refused to make return of the writs, and stated that he made the arrests by your order. As Col. Kirk does not make return, I do not feel at liberty to assume the fact that he acted under your orders, from the conversation set out in the affidavits.
Please inform me if Col. Kirk acted under orders from you in making the arrests.
Chief Justice Supreme Court.
Upon the morning of the 19th Mr. Badger, as counsel for the Executive, appeared and read the following letter:
EXECUTIVE OFFICE,
RALEIGH, July 19, 1870.
To the HON. RICHARD M. PEARSON,
Chief Justice of North Carolina:
SIR:--Your communication of yesterday concerning the arrests made by Col. George W. Kirk, together with the enclosed, is received.
I respectfully reply:--That Col. George W. 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. No one goes before me in respect for the civil law, or for those whose duty it is to enforce it, but the condition of Alamance County, and some other parts of the State, has been, and is, such, that, though reluctant to use the strong powers vested in me by law, I have been forced to declare them in a state of insurrection.
For months past there has been maturing in these localities, under the guidance of bad and disloyal men, a dangerous secret insurrection. I have invoked public opinion to aid me in suppressing this treason! I have issued proclamation after proclamation to the people of the State to break up these unlawful combinations! I have brought to bear every civil power to restore peace and order, but all in vain! The Constitution and laws of the United States and of this State are set at naught; the civil courts are no longer a protection to life, liberty and property; assassination and outrage go unpunished, and the civil magistrates are intimidated and are afraid to perform their functions.
To the majority of the people of these sections the approach of night is like the entrance into the valley of the shadow of death; the men dare not sleep beneath their roofs at night, but abandoning their wives and little ones, wander in the woods until day.
Thus civil government was crumbling around me. I determined to nip this new treason in the bud.
By virtue of the power vested in me by the Constitution and laws, and by that inherent right of self-preservation which belongs to all governments, I have proclaimed the county of Alamance in a state of insurrection. Col. Geo. W. Kirk, as commanding the military forces in that county, made the arrests referred to in the writ of habeas corpus, and now detains the prisoners by my order.
At this time I am satisfied that the public interest requires that these military prisoners shall not be delivered up to the civil power.
I devoutly hope that the time may be short when a restoration of peace and order may release Alamance county from the presence of military force and the enforcement of military law. When that time shall arrive I shall promptly restore the civil power.
After reading the above, Mr. Badger read various Proclamations, issued from the Executive office, at various times within the last two years, in reference to various outrages and disorders in the Counties of Jones, Lenoir, Alamance, & c.
The Chief Justice then said:
Before the argument opens, I will observe to the counsel that the object of argument is to aid me in forming an opinion on four questions of law:
1. Do the facts set out by his Excellency show that Col. Kirk had a " " reasonable excuse" for not making return to the writs of habeas corpus, so as to release him from the powers and penalties of an attachment?
2. Do the facts set out show an " insurrection," and a condition of things putting the lives and property of our citizens in such imminent peril as to suspend the writ of habeas corpus in the Counties subject to military occupation?
3. Suppose the writ not to be suspended: as in the present condition of the country it is highly probable, nay, in my opinion certain, that an order to the sheriff of a county to call out " the power of the County," and with force take the petitioners out of the hands of the military authorities, will plunge the whole State into civil war,--should not the act of 1868-'69, be so construed as to make it subservient to that clause of the Constitution, which confers power on the Governor to call out the militia to suppress riots and insurrection, in Counties where the Governor has exercised this power, and taken military possession?
4. If so, should the writ be directed to the Governor?
I shall be pleased to hear an argument on these subjects as questions of law; and will leave it to the good sense of the counsel to decide, whether an excited disussion, such as on yesterday, will be calculated either to aid me in forming an opinion, or to answer any other useful purpose.
Thereupon the counsel for the petitioners moved:
1. That an attachment should issue against George W. Kirk for failing to make return to the writs, and
2. For a writ, to be directed to the sheriff of some County in the State, commanding him, with the power of the County, if necessary, to take the petitioner out of the hands of George W. Kirk, and bring him before the Chief Justice.
These motions were debated pro and con, by the counsel for the petitioners and for the Governor, above named, until Thursday July 21st.
Upon the 23d the Chief Justice delivered the following Opinion:
On an application for a writ of attachment against a military officer for refusing to make a return to a writ of habeas corpus by producing the prisoner, held by him under orders from his superior authority, it appeared that the governor had declared certain counties of the state in a state of insurrection, and had sent the respondent, as commanding the military forces in the county, to make certain arrests. It also appeared that among the so-called insurrectionists was the sheriff of the county, who, in case an attachment should issue against the military officer, would be empowered to enforce the writ; that an attempt so to enforce it would result in bloodshed and riot. The respondent had answered in reply to the service of the writ that he held the prisoner under orders from the governor and commander in chief of the militia. Held that, in view of all the circumstances in the case, the court would not call out a posse comitatus to bring in the bodies of the petitioners, but would direct the writ to the marshal of the supreme court, with...
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