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THE CONSTITUTION AND THE L A W S T H Ev G U AR D I A N S OF OUR LIBERTY.
Tel. XLV.
HILLSBOROUGH, 'N. C., MAY 25, 1864.
No. 2247.
I III III III ' Mil Illi III V III III III
."
The Honorable the General Auemlty
of North Carolina t
Since your last adjournment, various and
important changes in tlie situation of our
affairs have occurred, and many of them
require legislative action at your hands.
The late aet of Congress conferring pow
er on the President of the Confederate Sutes
to impose regulations and restrictions on
commerce, has given rise to such a system
on the part of the Confederate authorities,
as will effectually exclude this Stat from
importing an? further supplies for the army
or people, Hie port of Wilmington is
now wore effectually blockaded from with'
in than without. The terms imposed upon
ship owners being such that a heavy lass is
incurred by every vojageind .notwith
standing the said aet provides. " That -thin;
in this act shall be construed to pro
hibit the- Confederate State, or anr of them.
from importing anr of the article herein
enumerated on their own account,' -vet
this is s construed by the Government as
to compel the States to submit to the same
terms as are imposed on private parties;
and clearances are refuted and the guns of
the fortifications are brought to bear upon
our own vessels to compel a compliance.
Private parties importing supplies for the
government, by contract, tor enormous pro
fits, are not taxed by these regulations; yet
the State of urth Carolina, importing a!
most the tame articles for the tame purpose
is compelled to submit to them. I leem it
inconsistent with the public interest to re
fer more particularly to our blockade run
ninz transactions and the loss which the
Mate will suffer on both ships and supplies
n hand, if these regulations continue in
force. When this is considered with the
lurther fact, as I hold it, that the general
government ha no right to seize one half.
or any purt tj, the interest of a sovereign
Slate in the vessels imployed in importing
her supplies (this being the terms to which
we are called upon to submit !) or 10 impose
such terms as will destroy instead otregu
lating commerce, it becomes vour province
in demand a repeal or modification ot the
act, and I respectfully and earnestly recom
mend that vu do so. And in case Con
gress should decline to repeal or modify the
jct, I repectta!ly ask for directions as to
what I shall do with the ships and supplies
on hand. A detailed statement of these
supplies, together with an account as accu
rate as tt can be without vouchers tor ex
i fnditures abroad not yet received, is hete
with submitted together with the report
of Mr John White, our special Cornmis-
sioner in curope. in reicrenee ii inn gen
tleman, it is due to him that 1 should ay,
that I have every reason to be pleased with
the skill and hdeliiy with which he perform
ed the duties of his difficult mission. A
'report of the operations of our other Com
emsioner, Cot. I). C. McKae, necessarily
incomplete, is also submitted, and will, I
btlieve.be found equallr satisfactory, and
rrrditable to him as a Commissioner. In
this connection, I respectfully ask for the
appointment of a commune to investigate
all matters appertaining to the blockade
running of the State, to be appointed at an
early dav, so as to report to your present
session if passible. No appropriation has
iren made by your honorable body to pay
the current expenses ot the vessels engag
ed in running the blockade, and none wit
be necessary, for these expenses can he paid
by selling bills drawn en our agent in Cng
land, as being incurred in Wilmington
chiefly fur the expenses connected with
I - J. a ' t
i't iBaumg ana u moaning vessels, com
pressing cotton, &c And they can be dis
charged in currency. I would suggest thai
you authorize the Treasurer to purchase
these bills out ot any money in the Treasa
ry, and thus keep the sterling exchange ia
the Treasury which otherwise would have
1 be put on the general market and be lost
to the State.
Being convinced from experience that
that the legitimate business of my office,
? four-fold greater than formerly, ii iuf
if lent te tax all my encrgici tf mind and
Udy, and that I cannot do justice talht
interest of the State in a business so com
plicated, as many of the transactions of
which is carried on at such a distance, I re
spectfully recommend that a commission
of one or more gentlemen, skilled in such
business, be appointed to conduct the fu
ure operations of the State, in importing
supp'i'S, whether for, the purpose of con
tinuing the operations or winding op the
business. '
A repori of the Adjutant General cover-
insr reports of his subordinates in the dif
ferent departments is herewith submitted.
The impressment of property of citizens
by officers and agents of the Confederate
Government, harsh enough in itself, has
become doubly so by the constant disregard
of the provision of the law regulating sei
zures. In addition to this, the flagrant
outrages committed, in every part of the
country, bv struggling soldiers, and other
persons in thn Confederate service, having
no shadow of authority to impress proper
tr, has become a grievance almost intoler
able. A recital of many instances of such,
which have been brought to mv knowledge,
would shock the moral sense of the most
heartless.
I have urged in vain upon the authorities
ot the Confederacy to check this evil, and
have made every possible effort to do so
myself. Hut it seems to grow worse, and
as the supplies ot oar people become inure
scant they feel more sensibly this unjust
ilep.'ivation ot their property, which reuu
cs them almost to the vere'of starvation
It must be stopped, if possible, and 1 ear
nestly recommend such action on your part
. a a
as vou miy iiunK best calculated to aid me
in remedying the evil. My correspondence
with the sr Department on this subject i
submitted for vour consideration. I desire
to rail your attention specially to certain
enactments of the last Congress of the ton
federate States. Among them is one ex
tending the agd of conscription from 18 to
IT, and from 45 to 50 years, which force is
to be organized as a State reserve thei
company officers to be elected, and the field
officers appointed by the President, and all
to be under his command.
In addition to the great injury to be ap
prehended to the agricultural interest of
the country, should these men be ordered
into actual service, I have to remind you
that it will absorb the entire militia force
of the State, and would leave the Execu
tive with no force whatevrr except State
officers' a condition dangerous at once to
the peace and order of the State, and to its
sovereignty and dignity. .There can scarce
ly be a doubt of the inexpediency wf this act
as to this State; since the same men, with
the exception of bojs from IT to 18, arc
now very thoroughly organized as Home
Guards under State authority, and have
been heretofore and would be again prompt
ly turned out in cases of great public din
ger. Grave doubts are aUo entertained as
to its constitutionality; the forces raised
under it being to all intents and purpoe
militia, the control of which cannot be le
gally taken from the Executive of the State
Government at least so far as the appoint
ment and commissioning of officers is con
cerned. Should you, however, in the ab
sence of a judicial decision as to the con
stitutionality of the act, decline to take the
responsibility ol refusing assent to it. there
will be an indispensable necessity of your
constituting some militia for the preserva
tion of law and order in the State by ex
tending the age gf service ia the militia,
and by some new organization of the rem
nants of the Militia and Heme Guard or
ganizations; otherwise I shall have on my
hands the officer! of two distinct organiza
tions, powerless for the want of men. In
this connection 1 would mention that the
same act of Congress has again conferred
upon me, without refereace to the Legisla
ture, the power to claim exemption of inch
State officers aa I may deem necessary for
the doe administration of the laws. Not
wishing to take so important a responsibi
lity ctpsn my shoulders without consulting
the Representatives of the people, I have
so far claimed the exemption of all civil
and military officers of the State, together
with the indispensable employees of the
different departments of the State Govern- !
ment, as enumerated by your body at its j
late extra session. And'I now respectfully
ask that you indicate to me by resolution,
wuai persons you regaru as proper suDjecis
or exemption.
I have taken the ground that exemption
of State officers from conscription into the
Lonlederate service is net by favor of Con
gress, but is a matter of j-ight inherent in a
sovereign State, and that for the same rea
son the State has an indisputable right to
the services of laborers and other persons
who are necessarily in her employ, thouh
they be not tjficert within the meaning of the
act of Congress.' Should you again agree
with roe in this opinion, I would be happy to
be sustained by a resolution to that effect.
Miould you conclude to combine the
Home Guard and Militia organizations, I
recommend that the latter be preserved. I
should regret exceedingly to see the mili
tia abolished, and its organization destroy
ed. It is the ancient and time-honored
military institution of the State, her main
dependence, in ordinary times, for the sup-
preasion oi reoeinon and repelling oi inva
sion, ami though shorn ot its strength by
the raising of great armies, and despite its
mans short-comings, it has been of great
service Dout to me state and uonieueracy
during this war.
Among the acts of , Congress referred to
that which has suspended the privilege of
habeat corput has most thoroughly aroused
public attention. Neither the losres incur
red by the radical and sudden, changes in
the currency, nor the conscription ot the
principles of substitutes, nor the extension
of it to such an age, and upon such terms
as to place the industrial pursuits of the
couritry at the feet of the President, nor
tbeheay burthens of taxation none of
these, not all of them together, have so
wakened the public feeling as the with
drawal of this time-honored and blood
bought guard of personal freedom from the
people in times when it is most needed for
their protection. It is true that our fore
fathers assumed, and this generation has
conceded, that in cases of rebellion and
invasion, the public safety may sometimes
require its suspension ; and, therefore, we
have conferred on Congress the power of
suspension in such cases, when the public
taftty may require tt. Nor can itbe doubt
ed that the power authorized ti suspend
is the sole power entitled to judge of the
necessity for the act, and if the late statute
had merely prohibited out and out the use
oi tne wut lor tne time specinca, inert
could be nil cnmplainA- against its consti
tutionality. however ifT-timed and unneces
sary mar have been the exercise of a riger
so grest. But I have been, as unable to
..... .. . . r . j
see, in tne times, any necessity icr ueny
ing the writ, as I am to recognize in the
law the constitutional exercise of the favor
that is granted. Concurring in the doc
trine that the protection against the. abuse
of the Constitution of the Confederate
States, either by usurpation of powers or
oppressive use of such as are granted, is to
be round in the responsibility ol congress
to the people, ensured by their short tenure
of office, and the reserved right of each
State, to resume the powers delegated to
the Confederate government, whenever in
her judgment they are perverted to the in
jury or oppression of the people, I deem it
a duty devolved on the State, inrougn ner
proper organs, to make known to that go
vernment her complaints and to insist up
on a redress of her grievances. Under this
idea of duty, and in a spirit of regard for
the government of our adoption, 1 deem it
incumbent to present my objections'against
the late act.
It is declared in the preamble that "the
President lias asked for the suspension,
aad informed Congress of conditions of
public danger which render a suspension
of the writ a measure proper for the public
defenceagainst invasion and insurrection."
Therefore it is exacted that the writ shall
be suspended as Jo " the cases of persons
arrested or detained by order of the Presi
dent, Secretary of War, or the General
Officer commanding the Trans-Mi
military department"
lississippi
The statute proceeds to classify under
thirteen heads a very great number of acts,
of which, if a man be accused, he shall be
deprived of the benefit of the writ; and-
among them the act of attempting to " avoid
military service." To prevent the out
rage which may be perpetrated on an inno
cent man not suDjeci te military service
or merely attempting "to avoid military.
m a it t . '
service, uniawiuuy demanded, it if pro
vided that " in case of palpable wrong and
oppression by any subordinate officer upon
any party who does not legally owe milita
ry service, his superior shall grant prompt
relief to the oppressed party, and " the
subordinate shall be dismissed from office."
And as a general protection of the citi
zens against abuses, under the act, it is
provided, that " (he President shall cause
proper officers to investigate the cases of.
all persons so arrested or detained, in or-i
der tnat iney may oe aiscnargea u impro
perly detained, unless they can be speedi-
. . . . i .
ly trieu in uue course oi law. .
And, finally, it is enacted that" no mil
itary or other officer shall be compelled to,
answer to any writ of habtat corput to ap
pear in person or to return the body of any
person detained by the authority of the
President, Secretary of War," &c. ; "but
upon the certificate, under oath, of the of
ficer having charge of any one so detained
that such person is detained by him for any
of i the causes specified in the act under
said authority, further nroceedings under
the writ shall immediately cease."
In order to aseertain whether the enast
ment is within the powers delegated, it is
proper to keep in mind what' are the privi
leges of the writ ot habeat corput, and we
shall be sure to know what can be affected
constitutionally, by a suspension of, it.
This writ is the offspring of the love of li
berty, and has been in use for ages by our
ancestors and ourselves, as the handmaid of
freedom. Its use is to have equity made
according to the rules of law of the causes
why persons are restrained of their civil
freedom. If upon inquiry by the proper
authority, there be no cause for detention,
the person is set at liberty. If there be
cause he is remanded for further detention
or allowed to go at large upon bail. Now,
these are all the privileges of the writ of
habeat corput. The writ finds no place
for action until after the person is arrest
ed. So that if there be any privileges or
securities to the person attending the mode
of arrest, these are not the privileges of the
writ of habeat corput, but exist indepen
dently of them. And it is therefore clear
that a power to suspend the piiviliges of
the writ is not a power to suspend the pri
vileges secured in forms attending the
mode of srrest. They are too distinct te
be confounded by any species of sophistry ;
and this distinction is plainly and notably
observed in the bill to suspend the writ,
passed through the Senate in January,
180r, which -suspended it only when the
persons may have been " charged on oath,"
and arrested by virtue of a ".warrant."
The writ was as effectually suspended by
that bill as by this art, and the Constitu
tional securities attending the mode of ar
rest, were left untouched and unimpaired.
It may then be regarded as settled truth,
that the suspension of the writ is no sus
pension of the Constitutional forms pre
scribed for arrest, and that Congress has
no power, express or implied, to suspend
any other guarantee of civil liberty provid
ed'in the Constitution besides those secar
ed by the writ alone. Notwithstanding
this, the late att has strode over some ef
the most irapprtant guards of civil liberty,
as if an express power had been conferred
on Congress to suspend them likewise.
Thus, while by paragraph 3, sec, '9, it is
allowed Congress te suspend the privileges
of the writ ef habeat corput in the emer
gencies mentioned, it is by the tame sec
tion, paragraph 15, in the most emphatic
terms, declared that "No warrant shall is
sue but upon probable cause, supported by
oath or affirmation, and particularly de
scribing the person to be seized."- And by
paragraph 16, that no person shall be de-
firived of his liberty without due process of
aw" that is, "law in its regular course
a