of administration, through courts nf jus
tice," (i Kent's Com. Sec 24, paragraphs
1S,T4.) The beginning of this due pro
cess is first the charge on oath, and the
next,; step is the warrant describing' the
person to be seized. The- third i the ar
rest, and until this take place habeas
corp us has do status, and cannot possibly
hare any. At this point the writ springs
into being, if not denied, and as here only
its aid can be sought for' the first time ; so
here for the first time can its, privilege be
derived. Yet the act involves with its sus
pension a suspension of the distinct ad
independent' provisions which guard the
citizen against a false charge and the dan
gers of a general warrant. ...
In lay judgment Congress had the same
power to suspend every other guard of ci
vil liberty to be found in the constitution,
the same to deprive the citizen of the
guaranty that he should ijot be held toan
swer fdra capita! crime, unlesson present
ment or indictment of a crand iurv that
he should not be compelled to be a witness
against himself that he should have me
right to a speedy and public trial by an
impartial jury, and k trial in the district in
which the crime shalt have been commit
ted. ' '
The writ of habeas corpui is peculiar to
the English people and ouiselves, And a
complete illustration of the operation of a
suspension or its privileges will be teen by
supposing, that it had no existence here.
la sacn case no provision wouta nave oeen
found fat its suspension. But the clause
requiring a charge of crime to be made on
oath and warrant to describe the person to
be. seized would have been not only very,
pxopertbut the more necessary to be in
serted. These coyld not have been legally
disturbed by. Congress, and any legislation J
dispensing with them had been mere usur
pation and void.
Such is thegeneraj view I have taken of
ibe act as it is supposed to relate tocrimts.
But the statute is construed to reach cases
involving no offence whatever, legal or
mora! ; and though there is some diflVrence
0 opinion upon the question whether par
agraph 5, of 6ec. 1 embraces the cae of a
citizen not liable to military duty,who
neither flies nor resists, hut simply appeals
or tries to appeal to the constitutional re
positors of the law lor a decision upon his
rights ; vet there is too much reason to be
lieve that the lanua;e if susceptible of
the interpetration that it does include such
persons ; and such is the interpretation pJt
upon it by the military authorities. ' And
as the suspension was asked by the Presi
dent, it is but just to infer that it was
drawn to suit him. and his exposition car
ries the interded meaning of the para
graph.; 7 ,
1 amenable to see any reason consistent
with the principles of a free and cjvilize.1
government provided with a judiciary as
a great and independent branch of its com
position for suspending the habeas corpus
' in tases which involve no evasion or t
temp t evade military service that is due,
but which merely asks when honest opin
ions differ to have the paint " settled by
those tribunals which settle all matters of
controversy between citizen and citizen,
and t citizen and hi government. If a
citizen owe not any military service to the
goversr.iut, be fcaasmuhr.i;htto refuse
to fender it, when wrongfully cUimrd of
him, as he has to refuse fo pay a debt to
tie gcvcrtmsnt'wrongfully claimed of him ;
and if i.i both cases he standi fairly up and
submits to an investigation of the question
before those tribanaU learned in such mat
ters and appointed because of their fitness
and skill, it iou'd be just as reasonable to
suspend the writ in the atteged debt of
money as in ?hi case of the alleged debt of
service. This co:re niighf, and likely
world, hasten the payment of a debt justor
enjusi, end so it mat s;rte to pui men in
the army exempt by "the laws of the land.
There is no initiate of a sujjenion at
any tine of the writ, cr the privileges of
the writ, ;f there beany difference between
then, fcr any other cause, either in Eng
land cr America. Many suspensions o!
the privileges of the wit occurred in Eng
land b it'-veen the passage of the habeas cor
pus i:l and the devolution, running through
a period of a!ino-t a century, nd they all
empowered the King either t apprehend
and detain, tir t? secure and detain with-
ost bail, fctch pTscnf til are suspected cf
ennttrnrn i.t im XTtn tnA dahm.
tncnt. . .'-
There wj a I5ritiS 'act in i?TTt which
denied -the wrtt to person! tsitn in the
act el high treason, committed in any of
the colonies, r on the high teas r n the
act of piracy, or wo were charged with or
suspected of any tf tl.cie criiiies." (llurd.
The other suspensions in England after
oar1 revolution' commenced in 1731, and
continued at intervals till 1802 during the
storms of the French Revolution. They
are of. the same character as those before,
and aBVcted those only who were charged
with conspiring agaiiist the King and. his
government. The suspension during Shay's
rebellion extended to crime or supcted
crime. The attempted suspensioa in 1807
was confined to. persons charged " with
treason or other high crimes or tnisdemean
or, endangering the peace, safety or neau
trality ot the United States." The idea
cannot be entertained for a moment that
the power of suspending the writ was
granted for any such purpose a.n that of de
priving a citiz'en of the privilege of a legal
inquiry into his obligation to perform mil
itary service, in order to fill the army with
soldiers. If such a.power exist the sove
reignty of the States is at the tuercyof
the Uonlederate Uovemment. wnere lies
the. relief against the conscription of the
entire b'pdv of State officers ? By this act
it is deposited with the President alone:
Ifis officers alone can give the discharge
Confederate officers chosen 'without even
ihe consent of the Senate, and removed at
will. The appropriate tribunals are en:
tirely overlooked; the State Judges are
thrust aside without ceremony, and even
the Confederate Judge, who holds hi of-
nreme Court, which alone has the power of our murdered sons, and its waves Men.
to decide unon the constitutionality of the with the dcOm, ot our ruined homes, how
vau liuci "v. ,wj vw"iunav,U'Ji Willi m
dir. h hnt'vet SDoken. ? Avhen it does
speak, we niust give heed;to its voice, so
long as the law remains on our statute
books. whether, for constitutional
reason, or reasons of mere policy, the pen
pie have a right to demand the repaal of
any obnoxious law. On both grounds I
recommend that you urge CongresWo re
peal the act suspending the privilege of ha
beas corpus or, should you concur in the
judgment of Congress, tint a suspension is
required by, the' exigencies ;of the times,
that it should at least be mod.fied and strip
ped of its unconstitutional or (at least) ob
noxious features. , , ,
My opinion 011 this subject is well known.
In. the first message 1 had the honor to
send to your body, in 18(52, speaking of
the then'existin; act authorizing a suspen
sion of the writ, I used the'following.lan
.... ' . n-. 1
fuage: "tnave not seen an oiuviai. copy
of the act, but learn from the newspapers
that Congress has conferred upon-the 'f re
sident the power to suspend the writ t ha
beas carpus in all cases of arrests made by
Confederate authontv. II this be once
fice during good behaviour,
authors of these evils, or how can it be de
sirable if it were possible? ; Lincoln him
self say it is-not poMible j so does Mr
Fillmore, a man whom we once, respected,
and so do nine-tenths of their orators and
presses. The only terms ever offered us
contained in Mr. Lin coin's in famous pro
clamation, were alike degrading in matter
and insulting tnmanner, being nddressed
not to the authorities, Confederate or State,
of the South, tbut to individual); who bv
the very act of accepting' its terms woul'd
hear 1 from 'themselves the vilest of man
kind.,,,. j-V' -"; : '." ':-, -:
cannot too earnestly warn you, gentle
men, and the country, against the great dan
ger of these insidious attempt of the en
emy to sedice our people into treating with
him fur peace, individually or by the forma
tion of spurious States or parts of States.
Indeed I might add, that I look upon any a t-
tempts to treat for peace, other than through
the regular chan ieU provided by our con
stitution, so lingas our government is main-
taint d, as almost equally dangerous. It it
admitted no man is sa'le from the power of 'he real peril of the hour. Tho Ions co
nn inilividaai: He could at nleasure seiz- tin iance ami bloody character of thr wa'.
mr citizen of the State, willi ur without . hive o exhausted fie ratierice of 6ur uf-
iiv iiwiwa Ht.-. ".-v .... - , r 1.. it... ..r :. .
is ignored. and' excuse, throw hun into prison ana p.eram $ leung jcojnc mi m n.eoi arc in
leu A i;aa!l.i(n to languish there without relief 1 ! condition to, listen eagerly to terms
KjiA&t.m nil ! Aita i - -------- ... . -
peace, wityut duly cini!eris what ihe
results would b'!, or how thrv are to be ac-
in tliir mum is irtsrerl n nITtrAP whn lives
on the breath of the Confederate Execu- po" thatl ai unwillin; 10 eo entrusted )
tive. If the State officer! are not put into to any living man. lo ,uamif to its f x-.
a
of
.... , 1.. . 1 . ..r . .1.
power in the Execn- trijiiw woum in mr vymiwi, uc v-siauniu , --y ... v. ,v.im.i.,i
incumbent does not) a precedent tiaagerous ami periucious m , ue imM-i mr .iu-m. m jnn.niori
rights of the State i the extreme, &c. ir 7a,l "
a courtesy they will mere is nn:ung i id sum ;oirou ; r iur i( wi.rjni.
at all It U takinsawav orailJin to. m varnrst r-; nence, y .oiu'ts comnioMonri m
1 fordis- monstrnce agtint i' pag of the .tin- roluiu wuh ihe prop;itioi. contain.
dy esta'j-1 present act is herewith traonittol. tot'i-, e l m L'rd rti. ? cont i.i n ing bill
,0 depen-ler with diters other lett-rs to the Cvufed- (Ti puvo-d to ab-ilUh til taxatc
eir exist-' erate authorities io relation to the execu- , whatever opon the cdosai . c-cpt wh;
the army under such
tive, it is because the
will it; and when the
khalt exist by such
cease to have any existence
hard to divine a sufficient reason
placing the civil tribunals alrea
lished, and substituting others so
dent upon the Executive for their exist
enee. Ihe
the power
remove the
nnnn wrltton Pnn i tl t !i tl in t fn nrnt.wf thlP
liberties. Historv is too full of wronz to Sjer which threaten u-. ; statutes in nhttnee n io mie i-
allow them to forget for a moment that; Moy recurring Uaners ot roj Cvn- ,eu nce i. yi, ano ayiuoi ..! ine- coot-
ith the Contednaie iverouient, ! nuioaeri l i4Vit.n a!i or! jrf-nn a
taxation
Hat
of
assurance of public men, that' lion or the civil laws, rijht f thr people, , migot b ewtry t,r the cunemea.ri- .f
will not be abused, can never ;&c., ad which will convince yu, I trat, I coki'iutc the :e(t prred- f .which
i fears of freemen, who rely only) that I have been'eqially zealiu m g-urd j were to Ko io tHeurr t'.r iVwiiies, tv
en Constitutions to orotect their aaint the inner i well a the oalrrJan- s jspeiiJth 'oyrttjao f all .ounxiou
eternal vhilance is the price of freedom. rltct with the Contednaie jnvero:nrnt. ! iniiuBr i pavdMn.an or: jrf-fn as
It is manifest that the act contemplates pecially in relation M the ieizire of prin: ; they pr-per.and foiret mih " H ex
that the military shall be vested with fulljcipals of substitutes after the dich.irSe bv ; t o.ernmnit r individual.' Here
powers to arrest anr person who may be! a jude, have been upon me since vour j Sai?t all ih principal m.ifrr of dilute
suspected of any of the vague and ill-de-J seion. They were f..rtmi eh avoide.l, were concrded ; but mtr 1-iHn had ai
If me lernit
it t r He firoi-
reat "d od
the land, and it is euuallv clear that it a!.i' plv with mr recinoiedation. w'.ru vwo , (ro.; 4hiiiit,.i, iH ihe in.inchi
contemplates that the order of ihe Presi.j wer last in session, t aothor.xe oinc onej patriotism .f Con-re, ti e this cor -dent
for arresting or detaining citizens! to convene that body in use of gn at io- uncut might luc b-rn chained : grrat
shall be a general order to arrest and ale- f portance, and whicii ado.it of qo deUy. I , was the wenoe ..P tin p-ij.le and
tain all such as roar come within the cite-lean bat reoeat it no, for toanv i.!vifj etoomy were the nn.pect. Te dnrr
. . 1 . .r !!.. .. ........
nneii charges mentioned ; and suc:i is me irjwev er ; oui meir wnuium whumi wrf ..is ..!.
interpretation put on it by the general or- been ey could I but have had ihe hearu or ifidependencf, V'
ders of Adjutant General Cooper, thus uv nance of "the Supreme Coun. 1 greiilyie- j Terel were o f4ir, that be
pendinz the civil authorities throughout !j;ret Uut you did not sec prpr t tviu-j a''d widr f the
gory of suspected personswithout nam- reasons
: J !t! .L . !..! - f 1 i - I
f allowing ciHoin'ui.uei to addr? them-
ing or describing the individual ind each
military officer who may be deputed for
that purpose wilt be invested with a perfect
discretion over the liberty of erery citi
zen in the land. In substance and 'effect
the President is intended to be empowered
with authority to fill the land with milita
ry deputies who may seize any citizen
without warrant or oath of probable cause,
under a general warrant from the President
ti arrest all suspected persons. Such a
warrant is without preceJent in England
for the last hundred years, and during the
entire century pastJias been forbidden.
denounced, and declared void.
Nor have 1. amid all the emhrrsments s-'le to anvb.lv but Conre
and perplexities of the situation, been un-. K'rat a well a nucha violation t ihe la
mindful of the great bji of all our blood j of war and international courtesy, that that
and sufferin; peace, or neglectful of all j body, after promptly rejecting the pra;'
proper and honorable eBVts to obtain it j itins and declaring that ihe only olid
knowing the great desire of our people to' proof ' of a deposition .n ihe irt of the
save the precious blood of their children, crown to nuke an hwtittnibfe peace with the
if by any posibi!ity an opening rnisht be colonies, would be an explicit aiknowl
found for the statesmen to superrrde the j edge me nt of tie independence of thee
soldier. I approached the PreidenV"n the
1 r4(li mt thw v! l!nlr ir at .if H Rvtk anrt
first oiioortunitv presented bv the cea
tion rf hostilities last winter, an I urged
him tuappoint comoiissioners and try what
might be dune bv negotiation. I had lit
tle hope, indeed, of those comm ssioners
arinie went u solemnly to declare the
meature " to be contrary t the law of nn
tio i, and otterlv su'aversive of that confi
denci wfich cuuld alone mita t
means which had been invented t alle
In my judgment the President is vritedibing received by the government of our ; a'e the horror of war i f.W, therefore.
enemv, bat I thought it our d?ity, fur ho ytrso.is employe! JlnLitle tut pa-
by the Confederate Cotstitution witli iij
part or the judicial authority, except in ca
ses arising in the land and naval forces, or
in the militia, when in actual strvic uv
der his orders. If he is vested with a par-
ncie ot civil juuiciai jurHnctiflii where is
the grant of it, and how far'doeitejten.i?
If he has the power to issue a wrra:it for
the arrest of a civilian su;.ected of violat
ing a law of the Confederate State, he
may make it returnable and examinable
before himself, and order a discharge or
require a bail. It is certain that the mere
suspension of the writ of habeas corpus
does not invest the President with the
powers of a civil judicial magistrate, and
if it could have that efTect it could not
give him an authority whjle discharging
his judicial jurisdiction to lay aside the
restraints imposed upon the other judges.
The course adopted by the tdministra
tioa of allowing tho writ of habeas corpus
to issue, anJ of forthwith checking the ac
tion of the judge and suspending all his
farther proceedings ad libitum, to await
the reports of military officers having cm
toJr cf the psdttioaer to their superiors,
and finally subject'rg the case to the de.
i ii.iii ui me war uparimeni inierog;tion
of ctrit aathoiy, ff huailiatlBg to tne in
dependent character of tha jadiciary, ami
tends lo the great danger ot liberty, u fa
milian'ze the people with a military u.
prcmary. ,
It must bt umemLered, howivir, that
these are merely ray opinions. The fcu-
inanity's sake, to make the effort and -to )' wre not utitlei tJ Uic protection oj a
connirer our own suJenog people tjiat-y-
their government was tender of their lives
and pioperty and hapi'ineis.
My letter to the Presi le nt last Decem
ber and hitreply ar sent herewith for j our
information. j
I respectfully recommend that you, as
the representatives of the people of Nurfk
Carolina, should lay d wn what yo i would
consider n fair biis of peace, an I call up
on our f'epr?eiitativc i.i Congress 'and
those to who'i ij committed the power of
making treaties by the Constitution, to
neglect r.o fitting oppfcrtunity of offering
such to the enemy.. These terms in ray
judgment should be nothing less than the
independcnce'of t icse Sufes, ha desti
nies have been fairly united wit'i the Con
federaty by the voice of their people. And
the privilege of a free choice to thou which
have been considered doubtful.
I pre:un? that r.n honorable man or pa
triot cotd th'u.k of any thing less t'tan in
dependence. Less would be aulj'igatlon,
ruinous aud dishonorable. Nobody at 0.C
North thinks of reconstruction, simply .bc
caue it i impsiblcWiih aconstitui in
torn into fchrcds, wiih slaver r aboKshrd.
wiih our property connscalcdand oursel ves j
ami our couaren reauccJ to beggary, oir
!aaresp.it in pusiCisioa of our lands, an I
iiivested with equal rights, social an I po
litical, and a great gulf vawning between
tht North and .South, filled with the bloud
Ueneral Wahinton oNatoiiiSed
and i i lignant, that on its fnt Appearing he
was induced to re.ir f it as a t rgcry, and
in a Jctirr to the tVesident of Congress, he
used llit toll'iwing langoage, reiiMikabl
for its oe verity, coming fro.n him: "Tho
rncl"cd. draft of a bill '.was. brought tu
Ilesdquarler.syesicrday afternoonhy-agen-'
ileiiun, wh.i inlormed nif that Ij'U" cargo
of them ld jat been sent cut of i'oiladel-
piiia. hetherthis iniwous pioceeuifig
Is genuine and imported in the pekci, r
contrive J in Poiladelp'tia, is a joiotunde
tcrmir.eil ad im oaterul ;but it is certain
ly founded on principle of the iimv wick
ed, diab ,dial baencs.s, and meant to poi
son the minds of the people, and detach the
wavering at least from our cause." Aod
again j The necessity of putting the army
on a respectable footiag, both as to nuni
bars and constitution, is now becoraa mora
esfeatial than ccr.,The enemy arc begin
ning to play a game more dangerous than
their elforl by arms (though these will not
be remitted in the smallest degree,) which
threatens a fatal blow tu the independence
if America, and of course to her liberties.
Taty are endeavoring lo ensnare tht jpeo
by specious ullurcmtnt of peace. It is not
improbable they have had such abundant
cause tif be tired of the war, that tney may
be sincere' in the terms which they offer,
which, though far short of our pretensions,,