Weekly standard. [volume] (Raleigh, N.C.) 1858-1865, 1864-06-15
"To make impriso 1ment lawful it must either be

ing under the hand and seal Of the magistrate, and
express the causes of the commitment in order TO
be examined into ii necessary, upon:a ho6e0s con!
pus If there be nc. cause expressed the goaler is
not bound to detan the prisoner for the law judges
in this respect, saith Sir Edward Coke. like Ees-
tus the Roman Governor, that it is unreasonable
to send prisoner. and not to signify withaf the
crimes alleged Bl.z Com, Vol !, p. l37 ''+-ss
y. This is what was understood to be /" due process
Of law " in England and in America at the time OF
tho adoption of the federal constitution, and the
phrase is used with this meaning in thatinstrument
So the act does not stop at suspension Of the writ
the object of which is to keep party in custody,
but it abolishes the preliminary proceedings with.
out which no arrest can be legally made. 1t dis
penses with the "dne process Of law" required by
the constitution, overrides that instrument, ana
delegates irresponsible, unlimited, arbitrary power.
What field for spies, nformers and parasites
for the indulgence Of private malice and political
anmosty! What an encouragement to the higher
order of villainies as we'll as to the contemplate
vices which spring from the habit of attending to
other peoples buslnessl J. 1t would be puerile to
suggest that the power will not probably be abused
Any exercise of the power to arrest by "Order" is
an abuse of ITSELF And in revolutionary times the
rule is not that all the power conferred on the Elk
ecutve head is not used but that more is used than
is C inferred. Are the Confederate States the hap
py exception?
But sir, the Senator from New Hanover, anticipa.
ting the argument contends that the power to sus.
pend the writ carries with it. &c neeessit1te, the
power to suspend the personal rights guaranteed Iii
other parts of the constitution. l have known the
Senator for long time and have great respect for
him; and greatly admire his frankness ard can
dor, while confess to but little admiration for his
logic or his sentiments. Pray, sir, in what school
of political philosophy was the Senator taught p
Surely not in the States rights school; and it is
certain that no old federalist consoiidatlonist
ever proclaimed so outrageous doctrine. What
lawyer has ever before declared that the power to
suspend the writ of haJeas corpus, implicitly given
and surrounded with restricrOns, carries with 1t
the power to annu or suspend express prohibitions
contained in other parts of the instrument! SIR,
is far more odous than tho doctrine, high federal
one, that Congress can do everything not prohlhi-
ted to it by the constitutions, for it declares that
Congress can do that which it is expressly forbid,
den to do Besides the Senator is aware that these
guarantees which the act would sweep away, were
incorporated into the constitution, ~ amendment,
after the adoption of the original instrument, and
be knows, as lawyer, that by well known rule
of construction if there be any conflict between the
amendments and provisions of the original charter,
the latter must give way. But there is no conflict
or inconsistency, and they all stand tremendously
together in the Confederate constitution. The
truth is the Senator has canddiy put the question
upon the only ground which he can put it, and has
been compelled to appeal throughout his argument,
to high her law than the constitution. He. boldly
declares that in. time of great public peril, when
the existence of the nation is endangered, Congress
disregard any and all of the provisions of the or
gsnic law ofthe land which it has sworn to support
and maintain both in sunshine and in storm. lie
also declares that the safeguards of personal liberty,
which we have copied from Magma Charta and the
Bill Of Rights were only meant apply to nation
at peace with foreign powers, and in the enjoyment
of domestic tranquility, and the argument is there
fore, Congress can dispense with them all. Can
there be astounding assertion, sir, than that
this constitution, adopted in the opening morn Of
the most gigantic struggle the world has ever wit
messed, was not intended for war as we'll as for
peace? The very extravaganza of these PROPOSE
tons makes them unanswerable
Again, sir, in his extremity, the Senator seeks
authority for this suspension in the action of the
colonial Congress during the revolution, and in the
fact that the British Parliament has several times
suspended the writ and sometimes without suf.
ficient regard for the provisions Of Magaa CAarta
But the Senator seems not to have adverted to the
fact that it was many years before the adoption of
the federal constitution, and some years prior to
the adoption of the articles Of confederation, that
Congress conferred upon General Washington ex.
traordnary powers. lie has failed also to remem-
Der that it is the theory of the English constitu
ton and of the common law, that Parliament is ON.
nipotent, and has the power to dispense with or
repeal the many guarantees with which The wisdom
of Englishmen has protected the liberties of the
people against the usurpations of the crown. Yet
the Senator's argument is, that because the Parlia
ment hss this power, the Congress of the Confede-
rate States, owing its existence to a vrittep con-
sttution and capable of exercising only the power
expressly delegs ted to it and those resulting by
necessary implications from the delegated power,
possesses the same unlimited authority, and can in
fact repeal the irrepeaable law of the land. This
sir. is his logic, and do not admire it.
Now, Mr.. Speaker, think this sound PROPOSE
ton: The only constitutional purpose for which
Congress can pass an act suspcnding the writ Of
ha6sas corpus, is to continue in custody persons
charged with offences against the criminal laws of
the Confederate government That is, duly charged
with offences known to the laws. And these Of
fences must be such endanger the public safety.
This must be so from general reasoning, for the
restriction to cases of rebellion or invasion ohen
tile public safety mag require ii, and the public
safety cannot require it unless it is imperilled.-
This view is sustained, in totidem rer6is by au.
thority: The power of Suspension is by fair
construction, limited also to offences endangering
the public safety (Hurd, 1922 Some of the OF
fences enumerated in the acts known to the GRIM
inal code of the government, some to the military
law, SOule W uO law dI dill vi Tile uTSL ClaS6
are treason and conspiracy. Treason, however, is
not bailable offence and there is no necessity for
the suspension Of the writ to keep traitors in
custody. But what of spy? If lie belong to
either army he is amenable only to tho military
law. If he be citizen of the Confederate States,
unconnected with the army and in the service of
the enemy as a spy, he is simply traitor. So of
dese-tion: it is purely military offence, and no
writ of habsas corpus can take, "a deserter out Of
the hands Of the military. Why then enuuerate
these cases Are these military Offences which
the existence OF the privilege of the writ in no way
affects, made to do duty by contributing to those
-;:c-;":'. ":sendi::eus CT public DANGER" with
out some intimatlon Of which it was thought the
law would not be very acceptable to the people
Trading with the enemy is prohibited by statute
but if 1t endanger the public safety at all, it has
done so from the beginning of the war and if the
act has ever been enforced it has only been against
petty offenders 1t is the common aEperience.-