Weekly standard. [volume] (Raleigh, N.C.) 1858-1865, 1864-06-29

precuding all investigation of the legality OF the
arrest So the Question of illegal arrest has not
arisen to be decided by the courts of any citizen
arrested by order of the President only. Should
any person thus arrested fit to bring an action
of false Imprisonment | am satisfied the acton
could be maintained, and that the power to arrest
given in the act.to the President would be declared
void because in violation of the constitution; but
until cause is presented to the courts involving
the question, We cannot have an Adjudication
The question as 10 the power of Congress TO sus-
pend the writ of habeas corpus is wholly dissimaar
from the legality illegalty of arrests The Tor
mer merely precludes IN enquiry into the latter
SO the averment that Judge halyburton decided
the question of unlawful arrest by the writ OF hG-
6eas corpus is an averment that he decided the
question inhibited to be heard or decided by the
act of Congress suspending the writ. :.
next propose to inquire whether the jurisd;c-
ton of Confederate and State Courts are concur
rent in cases Of illegal and informal arrest am
aware that stand on dangerous ground The tate
of distinguished gentleman admouishes me to De
cautious in the discuss ion of this question: he
seemed to.be drawn by this Subject into all the
mazes of confusion as if he was led by some sgnss
fatuus. l will profit by his unfortunate expert
ence, and will not venture beyond the light OF Ju
dical decisions. This is no new question, but has
been often discussed and decided by the best talent
OF the continent the settled decision OF learned
Judges is that Federal and State Courts have con-
current jurisdiction over illegal arrests. BY llle-
gal arrest is meant arrest without the authority or
| form Of law. 1t has no where been decided or
maintained that where the Federal or State Courts
took jurisdiction of offender for an offence cog
nzabe in such court that other courts, either State
or Federal would release prisoner where he stood
indicted, according to the forms Of law, tor an Of
fence cognizable in such courts. The writ OF no.
Iexs corpus is the legal remedy for illegal and IN
formal arrests, and cannot be legally used to take
prisoner from any judicial tribunal having gained
jurisdiction over him. according to forms OF law.
No enlightened court would, under the writ DIS
charge prisoner convicted or indicted Tor an Of
| fence in due form of law in court having Jurs.
| diction of the cause, but would leave him 10 re.
dress his grievances in the court which convicted
| or indicted him. This question has been decided
| by many of our State Courts and the Supreme
Court Of the former United States and maintained
as the law by the most learned commentators on
law on this continent
Arrests by military commanders have always
been investigated by either Federal or State Courts
Such arrests stand on different footings from ar
rest by courts by process of law. The reports OF
the several States Of the Confederacy, as well as
| the reports cf the States of the United States,
abound with decisions on this subject. The Courts
Of the several States of this Government since its
organization have uniformly given relief to those
illegally held by the military authority. Until re-
Gently this position has not been assaiied, and,
from the nature of the attack, / am forced to the
conclusion that this assaults weak and ephemeral
The Constitution and laws of the Confederate
States must be observed by State as well as Con-
federate Courts. l suppose there is no judge IN
the Confederate STATES, State or Confederate who
has not taken an oath to support the Constitution
Of the Confederate States and laws made in pur-
suance ehereof So tie suspension Of the writ Of
haJeas corpus by Congress operated On the State as
we'll as the Confederate Courts. The State Courts
were as much bound to observe and respect the
| law as the Confederate Courts. There are no op.
posing elements in the State and Confederate pow
ers; they are harmonious and we'll defined, and
are mutually binding on each other within the
scope of their respective powers. There is no In
congruity or want Of harmony between Them
favor repeal of the law for various reasons.
The law had a tendency to strengthen our foes,
by inducing them to believe that the hearts Of our
people were not in this strpsgle-that they were
not united in the support of our cause. 1t gave
to the enemy show Of weakness that did not ex-
with greater zeal than ours. They have sacrificed
life and property without murmur. This is no
leaders revolution; it is the peoples revolution,
ard manfuly have they sustained It 1t has ab-
sorbed their united energy and monopolized their
prayers; they have shown themselves equal to
every emergency that has arisen; exhibited an ell
ergy end lruitulness of resources that struck even
their most sanguine friends with establishment and
surprise. Their conduct instead Of arousiag the
suspicion Of the Government, should have cop
mended them to it. But we are told that there are
bad men N the Confederacy. Will the time ever
come when there are no bad men? | venture The
assertion that there were in the Revolution more
torits ard bad men in proportion tu the population
than in this. Should honest men be injured be
cause there are bad men? Does not the law fur
nish ample remedy Cor crilneg If not, let us ament
it. This position is answered by the statemen
that judges and jures are corrupt and that it vii
not do to trust either. The friends of this measure
can lind but one repository of power that is SAT
and TO be trusted. 1 mention that the great bod
of the people can be safely trusted-that they hav
shown more capability, more sound judgment, les
passion and prejudice than those rulers, and al
equal amount of patriotism. No general officer ha
succeeded in this war who has incurred their dis
pleasure, while their fsyortes have been eminentl
j: successful: Lee, Beauregard, johnson, Forrest
Eieckinrdge Longstreet Price and Smith, are Al
, popular favorites, and have been eminently sue
! cessful. With the many illustrations of the pa
triotism OF the people before me, 1 would not b
easily convinced that they required the coercion
: the law,to force them to do their duty. l believ
they, will voluntarily cling to our caise amid goo
. and i'll fortune. The judiciary of the South
learned, patriotic and just and without passion 9
favor will bold the scales Of justice equpoised an
decide the law as it is written, uninfuenced by tn
fanaticism and prejudices that surround them r
them the cry of expediency is fruitless, and
necessity is without weight Their oaths .yiel
to no such appeals They are true to their cour
try to the right of the people, to the Constituto
and laws of the land, but untrue to those tn,
!, would subvert the Constitution and destroy II
freedom ofShe people for the ACKNOWLEDGEMENT
power. e
The act strictly prohibits the judiciary from the
lawful cognizance Of offenders by appointing con
missoners, while it vests in the President and con
), missoners the exclusive power to determine whet
er the party arrested shall be detained If they al
not to be detained but fer probable cause, then Il
necessity of commissioners does not exist; for IL
judiciary would not release, under the writ of h
beas corpus, any one against whom facts were prove
sufficient to constitute probable cause If the g.
t is intended to authorize tie holding Of persa.