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 Minority report 
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HOUSE OF REPRESENTATIVES, May 28, 1864.— Ordered 
 to be printed. 
 
 [By Mr. Garl4nd, from the Judiciary Committee] 
 
 MINORITY REPORT 
 
 OF THE 
 
 COMmTTEE ON THE JUDICIARY, 
 
 On the suspension of the Habeas Corpus, by act of February \5th, 1864, 
 of t/ie First Congress of t/ie Confederate States , entitled "A71 Act to 
 svspend the privilege of the writ of habeas corpus in certain cases.'*'' 
 
 When the question of repealing the above entitled act was pre- 
 sented to the House of Representatives at an early day of this ses- 
 sion, we were not disposed, nor arc we now, to open this vexed and 
 delicate subject, if it could have been consistently avoided. Yielding, 
 in a great degree, our convictions as to this act, we agreed, with the 
 rest of the committee, to report back the bill seeking to repeal such 
 act, with the recommendation that it lie upon the table. We were 
 opposed, upon constitutional convictions, as well as for reasons touch- 
 ing the expediency of the measure, to the passage of this act. But 
 for the sake of harmony and unity of action, and in order not to dis- 
 turb the public mind upon this subject, we were willing for the act to 
 live out its days and pass silently away. And we certainly hoped 
 this would be the course which the House would adopt. The ques- 
 tion has, however, been presented to the House in different forms, and 
 has, by the House, been referred to the committee, on the message of 
 the President in response to a resolution of enquiry adopted by the 
 House, We still believed the whole matter would be permitted to 
 pass .without any discussion of the question, or any direct action of 
 the House, and our desire was that the subject should be so disposed 
 of. But the majority of the committee deeming it their duty to pre- 
 sent- a written report vindicating the act of the 15th of February, 
 1864, in a paper opening -up the whole field of discussion and argu- 
 
ment, we feel it to be a duty from the performance of which, a proper 
 regard to the dischfirge of the offices incumbent upon us here, will 
 not grant us a 'dispensation, to make known to the House in a like 
 formal manner, our view's upon this vital question. Differing, as we 
 do, from most of the reasoning in the report of the majority, and to- 
 tally in the conclusion arrived at ; and in fact, agre-eing in little else 
 than the definition of what is callod the writ of habeas corpus^ we beg 
 leave here to enter our earnest, solemn, and respectful protest to that 
 document being received and adopted by the House as containing 
 true and correct principles under and according to the Constitution, 
 "which it is our duty to protect, as well as the usages and practices 
 that have grown up under, and have been recognized as having eijual 
 force and eifect, with the Constitution itself. 
 
 In discussing the questions arising here, we do not deem it neces- 
 sary to go back into history — in the dim ante-chambers of the past, to 
 search for evidences of the origin of this great writ, and to trace its 
 history minutely to the present day. Nor do we thiiik it worth while 
 to chant peans of praise to this bulwark of freemen's rights. It is 
 ot no small consequence for us to know, that long, lor^g before the 
 celebrated statute of 31st, Charles II., this writ was known as the 
 remedy for deliverance from illegal imprisonment — it was, in fact, a 
 common law writ, and the statute of Charles II. .only confirmed and 
 extended it. [Third BL Com. 129, id 135; Crabb's- history, 52 o.] 
 This statute of Charles II. enacted no new principle ; it put forth no 
 new doctrine. For as Hallam, in his constitutional history, says : 
 •*It cannot be too frequently repeated, that no poiwer of arbitrary 
 detention has ever been known to our Constitution since the charter 
 obtained at Runneyniede — the writ of habeas corpus has always been 
 a matter of right." Coming, then, as it does, down from the early 
 history of the mother country to our ancestors, we see they, with a 
 high regard and appreciation for its worth, inserted in the organic law 
 of the old Ciovernment just such a provision as we have in our Con- 
 stitution, touching the suspension of this writ. It is not to be for-"' 
 gotten that our fathers framed the Constitution of the United States 
 amid trying and wonc^erful scenes. They had met tyranny and had 
 fought it in all its forms and shapes, and just after the end of a 
 **beastly and mad-brained war," they gave to the country this con- 
 stitutional security and protection. So characteristic was the jeal- 
 ousy of our people in an early day over the legislative action to 
 suspend the habeas corpus, thpugii allowed by the Constitution, that, 
 after a bill to do it, in 181)7, s'eems to have passed the Senate of the 
 United States, through all its readings in one day, and" with closed 
 doors, the House of Representatives rejected it, on the first reading, 
 by a vote of one hundred and thirteen to nineteen, [^ee journals of 
 the House, 25th and 27th January, 1807,] Tiiis was done, although 
 the bill to suspend the habeas corpus provided it should be done only 
 when one is charged on oath with treason or misdemeanor afi'ecting 
 the peace of the IJnited States, and imprisoned by warrant on au- 
 thority of the President of the United States, or the Governor of 
 ai State or Territory. It was not deemed prudent to suspend it, though 
 
fi 
 
 in that mild form, conbidering such a measure at best, but a species 
 of dictatorship, and to be justified only by extreme peril to the pub- 
 lic safety. So universal and so ifcarked was this feeling at and 
 during these periods of the early history of the United States, Mr. 
 J efferson, certainl}^ one of the meet prominent men in all thje leading acta 
 and measures of that day, and the founder of a great party, whose 
 followers deemed its tenets synonymous with the welfare and hap- 
 piness of that Government, has left on record his opinion that it was 
 much wiser, even in insurrections, never to suspend the writ of ha- 
 beas corpus. So strong and pointed is" his language, we will be par- 
 
 ' don6d for quoting it here. Writing to Mr. Madison from Paris, 
 December 20, 1787, touching the plan for Government about to be 
 submitted to the States, Mr. J. says : '* I will now tell you what I 
 do not like : first, the omission of a bill of rights, providing clearly, 
 and without the aid of sophism, for freedom of religion, freedom of 
 the press, protection against standing armies, restriction of monopo- 
 lies, Me eternal and unremitting force of the habeas corpus laws,'''' ^c.^ 
 ^'c. [Second volume Memoirs by Thos. J. Randolph^ p. 247.] Again 
 
 .from Paris, February 7, 17SS, to Mr. ^Donald he" writes, after express- 
 ing the hope that the four latest State Conventions before acceding to 
 the Constitution would have a bill of rights, he says : *' By a decla- 
 
 ^ ration of rights, I mean one which shall stipulate freedom of reli- 
 gion, freedom of the press, freedom of commerce against monopolies, 
 trials by jnries in all cases, no suspension of the habeas corpus, no stand- 
 ing armies." These are fetters, he says, against doing evil which no 
 honest Government should decline, [same book, p. 291.] The men 
 of that day, (and there were giants then,) had almost this same feel- 
 ing in common with Mr. Jefferson, and it is useless for us to present 
 evidenc.es of thi& to this House. Coming on regularly in the course 
 of time, our predecessors, or the fathers of this Government still 
 preserving and keeping alive this sacred love for this writ, inserted 
 in our Constitution the restriction we have in article one, section 
 nine, clause three. This was done at a time when theframers of this 
 instrument had ^ust left a malignant and tyrannical power, which 
 threatened to destroy this as well as all the other valuable safeguards 
 of the old Constitution. They were engaged in building a substantial 
 and permanept house of refuge for our people, in view of the early 
 coming of a storm, not charged with mere sound, but bringing with 
 it desolation and woe in every terrible shape. It will not do to say, 
 they knew not their duties, nor that they were not aliye to the re- 
 sponsibilities of the hour. For they claimed, and we do for them, 
 that in planting themselves at Montgomery, they rescued the Con- 
 stitution, from utter destruction, and preserved in ours all that was 
 Taluable in the old one. The people of the Confederate States are 
 no less watchful of their rights in this behalf, than were they of 
 the United States in her best and purest days. The Legislatures of 
 two proud and gallant sister States of this noble band of States, (Mis- 
 sissippi and Georgia,) -have spoken out boldly and in language that 
 cannot be mistaken in condemnation of this act of Febjuary 15, 1864. 
 Certainly their^voices arejiot to be passed unnoticed, nor are their 
 
expiessious to be unheeded. They express a regard for the very 
 rights for the security of which this war was inaugurated, felt by the 
 whole pulation of the Confederacy^ We share this feeling with them, 
 and when they or we cease to entertain it, they as well as ourselves, 
 are no longer fit to enjoy those liberties for which the people are now 
 making such unheard of sacrifices. And we arc proud to know, that 
 in this respect, we are sustained by one whose opinions, not merely 
 on acccount of his position, but from his acknowledged patriotism, 
 judgment and ability, are entitled to the greatest weight ; ^nd so apt 
 is his language, we quote it in part justification of the zeal we may 
 display in this investigation. The President, in his message of the 
 20th May, 1864, submitted to us on this subject, says: ''The sensi- 
 tiveness exhibited in different parts of the country to the legislation 
 on this subject, is indicative of the love of freedom, which is innate 
 among the people, and which should ever be cherished as the sole 
 guarantee for the preservation of their constitutional liberties." 
 
 Then, it will not be wondered at, if the people, and some or all of 
 their representatives, should scrutinize closely the action of Congress, 
 in suspending the privilege of this writ, to see whether or not they have 
 been dealt fairly with, in thus being deprived of rights so long and so 
 well guarantied to them. Without any further allusion to the benefits 
 or the sacredness of this writ, it is sufficient for us to know, acting in 
 our representative capacity, that the Constitution under which we 
 hold our offices, and under and by which we should act, has preserved 
 this writ intact unless in rare and very urgent and extreme cases. 
 If there were nothing else lying back in the history of the past, this 
 itself, in our eyes, would give it character and importance enough. 
 When this Constitution says " The 'privilege of the writ of habeas cor- 
 pus shall not be suspended, unless when in cases of rebellion, or in- 
 yasion, the public safety may require it," this is sufficient for us to 
 know, that the cases requiring the suspension must be urgent indeed, 
 and clearly and unmistakably made out. And by this rule, and 
 some others laid down in that Constitution, we propose to examine 
 this act of February 15, 1664, and we shall attempt to show that 
 tried by the Constitution, what our convictions tell us is true, that, 
 
 let. That act, in many of its essential features, is utterly at war 
 with the Constitution ; and 
 
 2d. There was not, at the time it was enacted, any such- emergency 
 or exigency as required its passa^^e ; and there is not now any occa- 
 sion for its being continued in force. * 
 
 That part of the Constitution from which Congress derives the 
 power to suspend the writ of habeas corpus is among the class of pow- 
 ers, and relates to none others, that belong to the legislative branch of 
 the Government — no mention is there made of the executive and his 
 powers. Of necessity, as it is generally, if not universally, conceded, 
 Congress is the judge whether the public safety does or does not re- 
 quire it, and the judgment of Congress on this point, must be con- 
 clusive. Should the public safety at any time require the suspension, 
 it is for the legislature to say so. That question depends on politi- 
 cal considerations, in which the legislature alone is to decide. The 
 
Congress, representing immediately the people, and having the law- 
 making power in its hands, is presumed to know, at all times, bet- 
 ter than any person or persons, the necessities of the country ; to be 
 better able, upon a given state of facts, to form an opinion consistent 
 with the public good, and to feel more sensibly the great responsi- 
 bilities growing out .of the power, was wisely entrusted with this 
 authority. This question has been so fully determined by Chief Jus- 
 tice Marshall in Bollman, exparte, 4 Cranch, 95, 101, and aftewards re- 
 affirmed by Chief Justice ■ Taney in the famous Merryman case, in 
 1861, that argument is not needed to bolster up this proposition. If, 
 then, Congres- must find the necessity to exist, it must, under the 
 Constitution, suspend the writ itself. It is a legislative act to be ex- 
 ercised under a delegated power. For two good reasons, then. Congress 
 cannot in the least delegate this power, 1st. It is a legislative power, 
 which, under the Constitution, cannot be exercised by a separate and 
 distinct branch of the government, having and possessing totally dif- 
 ferent powers from the legislature under the Constitution. 2nd. 
 Power delegated cannot be, by the agei^t to whom it is given, dele- 
 gated to another ; this is a familiar rule as . old as the law itself. 
 What, then, becomes of those features of this act, which authorize the 
 President, or others to be named by him, to say who shall be arrested, 
 and who shall be held in custody, which we see in sections 1 and 3 of 
 the act? If the judgment of Congress be conclusive, where does the 
 law-making power get the authority to so limit or modify its judg- 
 ment, as to reach cases only to be named by the President or by per- 
 sons 'designated by him ? That authority cannot be held. The 
 action of Congress must amount absolutely to a finding of the facts, 
 and a judgment absolute of suspension, or its action amounts to noth- 
 ing. When Congress says the writ is suspended, there is an end of 
 it, and nothing more is to be done^ These various degrees of dele- 
 gation of power are not to be tolerated; they avoid the very respon- 
 sibility in the discharge of duty which the Constitution imposed, for the 
 wisest of purposes, upon the law-making power. It amounts to a 
 delegation of legislative power to the Executive and his appointees, 
 which destroys in fact the legislature entirely if legitimately followed 
 out. With the same propriety the Congress might leave it to the Ex- 
 ecutive, or those to be appointed by him, to levy a tax upon the people, 
 to raise and support armies, and any and every other power delegated 
 by the Constitution to the Congress, might be thus given him. . They 
 stand upon the same foundation exactly. It requires much elasticity 
 of construction indeed, to hold that Congress could even vest this 
 great power in the Executive, but it is beyond comprehension and ex- 
 planation, how Congress could go so far as to authorize him to name 
 agents for the execution of this trust, as delicate and important a^ 
 trust as was ever confided to man anywhere or at any time. This was 
 a bold and long stride towards obliterating the lines of demarcation 
 existing between these two branches of the Government. 
 
 Buc further, not merely does it clothe him and his agents with cer- 
 tain legislative powers, but it gives them, to a great extent, judicial 
 poyrers also. They must say who is to be arrested, and then investi- 
 
gate the causes of arrest afterwards. .Relative to this, in the first 
 place, we have to say, that while it is true that Congress may, under 
 article 3, section 1, clause 1, establish inferior courts, yet it is true 
 that the Constitution nowhere permits the appointment of judges, or 
 those who are to hold courts, in such a manner as is designated by 
 this act. These men*, when appointed, must clearly exercise the duties 
 of judges ; they apply laws to facts, in certain cases, and find a judg- 
 ment of discharge or detention; they are in truth judges, and as such 
 are charged with serious and heavy duties. The appointing of such 
 officers, or of officers for such purposes, was unquestionably intended 
 to be by the President, by and with the advice and consent of the 
 Senate, (art. 2, section 2, clause '^, of th^ Constitution.) if they were 
 ever to be appointed at all. 
 
 Officers entrusted with such vast powers as these are by this act, 
 cannot, by any latitudinous construction be made to come within that 
 class of inferior ofiicers mentioned in the article of the Constitution 
 quoted. They are, in fact, courts, or they have no place whatever un- 
 der our Constitution. If they are courts, they are made to take the 
 place of courts which are already known and recognized under the 
 Constitution. Then the two-fold objection is' presented broadly here 
 to this delegation of power. 1 st. The supervisory control of the Sen* 
 ate over executive appointments is entirely taken away or discarded. 
 This has always been deemed a wise, judicious and valuable check in 
 the system of checks and balances adopted in the United States, and 
 in the Confederate States. The framers of the old Constitution at- 
 tached no small value to it. Here we see it at one breath swept away, 
 and one more of the securities of the people is suddenly destroyed 
 without any equivalent or show of one in lieu of it. 2d. The courts of the 
 country, intended to look into and investigate all such matters, are, with 
 one dash of the pen, broken dc^vn and supplanted. The judiciary, 
 one of the independent branches of the Government, co-equal and 
 co-extensive with the others, as ail agree, is dealt a severe and crush- 
 ing blow by this measure. Let us look at it. The appointees owe 
 no responsibility to any one but the President, and immense powers 
 affecting the life and liberty of our people are given to them. Is not 
 the groundwork here laid for the erection and maintaining of as op- 
 pressive and tyranical a court or courts, as ever disgraced the earth ? 
 The star chamber, with its huge and enormous powers in its days of 
 life and vigor, grew from the simple concilium ordinarium, which at 
 at first seemed limited and circumscribed enough, but so gradually 
 and constantly did it enlarge its sphere, that it became a most potent 
 engine of mischief and destruction, until finally, after a long and se- 
 seyere contest, it was abolished, but not until after many an innocent 
 and noble citizen had given up his liberty and his life upon its dese- 
 crated altar. And let us ask, in all candor, does this not look like re- 
 turning to that odious doctrine, which held sway in the time of 
 Charles I., when the privy council would recommit persons 
 brought out on habeas cqrpus answering, they had been committed 
 *^per speciale mandatum regis ? Heath, the Attorney General, argued 
 this a good return, as the king's order had imprisoned them, and he 
 
could do no wrong, and upon the strength of these four words ( per 
 speciale mandatum regis,) Nicholas Hyde, C. J., sustained the commit- 
 ments. Whatever plausibity there might have been for this course in 
 Englanti, where the king is thought to be infallibk, it can find no 
 place with us, where the duties and powersof the President are as 
 clearly defined as are those of the Congress. But we are not far re- 
 moved from this point, when we allow persons to be arrested upon the 
 order of the President, or Secretary of War, or the general ofiicer com- 
 manding the trans-Mississippi department, and then allow persons to 
 investigate their cases, who are appointed by the President, responsi- 
 ble to him alone, and knowing in their ofiice no one else. This is 
 an overshadowing power Congress cannot give, to any one, and if it 
 could do so, it should not. 
 
 But objections, grave and overwhelming, multiply. In the classi- 
 fication of the offences for which arrests are to be made, we have 
 thirteen heads, or orders. Those named'in the Ist, 2d, 3d,»6th, 8th, 
 9th, KHh, 11th, and 13th, are all •crimes, or the ingredients and 
 essential elements of crimes, for the punishment of which ample pro- 
 vision is already" made, from the arjrest to the final conviction and 
 punishment. They are either treason, or they are features or evi- 
 dences of treason. Now, by committing a person for these offences, 
 or any of them, and creating this special tribunal to investigate, we 
 set aside courts already created, and clothed with full and ample pow- 
 ers to, dispose of them. These persons appointed for investigation 
 can easily — they determining the question, as no one else is provided 
 for this by law, whether the party arrested can be speedily tried — put 
 an end, practically, to all the rights a party may have in the courts 
 of the. land. When these persons say the party, is properly arrested, 
 there is an end of the matter, according to this law. The door is 
 closed to any further investigation, and the party must remain until 
 some one not mentioned brings him out. One of these judges, or in- 
 vestigators, wishing to crush some individual by saying he cannot be 
 speedily tried, and on looking into his case he finds he ought to re- 
 main in confinement, has the liberly and life of. the citizen effectually 
 in his hands. Noth-w^thstanding the judiciary, provided for by our 
 Constitution, and in which we all take so much just pride, we see it 
 thrown down and prostrate in the dust before this tribunal, that finds 
 no place in our organic law, and is not countenanced by the genius of 
 our system of government. • . 
 
 As to the offences named in the fifth and sixih classifications, the 
 military laws, the rules and articles of war, are ample and sufficient, 
 and there is no necessity for giving this authority as to them. These 
 are military offences generally, and military law is swift and potent 
 enough to meet them all. For instauce, there we have spies and 5ther 
 emissaries of the enemy. We all know that the laws of war are suf- 
 ficient to deal with them. Andre was caught, tried, convicted and 
 executed as a spy, in the first revolution, under the rules and regula- 
 tions of the army, adopted by the British Parliament more than a 
 hundred years before that time. 
 
 Of the fourth and twelfth classifications : It is plain to us Congress 
 
has nothing on earth to do with" them — they are left to the States. 
 There is no State in the Confederacy, we dare say, that has not a 
 severe statute against attempts to incite servile insurrection ; and so 
 careful has the President been on this question, that proper regard 
 might he had and paid to States' rights, in his message submitted to 
 the first Congress, January 12, 1863, (page 1 1,) he recommended that 
 certain persons, taken in attempting to execute Lincoln's emancipa- 
 tion proclamation, be turned over to the States, to be dealt with under 
 the laws of the States providing for the punishment of criminals en- 
 gaged in exciting servile insurrections. These are matters peculiarly 
 within the province and jurisdiction of the State tribunals. And so, 
 too, of the offences of burning and destroying bridges, railroads, 
 telegraphic communications. These are matters of local concern 
 altogether. The strict anti-internal improvement policy of this Gov- 
 ernment would forbid Congress passing any law on these matters. 
 By thest) two sections, the Congress lays the foundation for a serious 
 collision with the States. In our somewhat complicated system, col-' 
 lisions may not always be avoided, but certainly it is wise always to 
 try to avoid them, and still more so is it never by any means to invite 
 them, or to put on the appearance of inviting them. It is a strange 
 feature in this law, and one .that cannot be maintained at all, that it 
 seeks to imprison persons for acts not crimes by any laws that we 
 know of, or that are on our statute book. Nor does the act itself make 
 them crimes, in legal acceptation. There are certain acts named that 
 do not come within the meaning of treason, nor any other offence. 
 Calling these offences do not make them so. An offence is, in law, 
 an act for which any criminal punishment may, by law, be inflicted. 
 "Where is any punishment by law provided for many of these acts here 
 named ? No where at all. Then the anomaly is presented of arrest- 
 ing and detaining a person for an act for which there is no punish- 
 ment provided. This surely is something new under the sun. The 
 object of all arrests and holding persons is, or should be, to bring 
 them to punishment for offences committed. But here they are to 
 be arrested and held, if we may be allowed the expression, for offences 
 that are not, in truth, offences 
 
 But we propose to go further, and examine this provision with re- 
 gard to the suspension of the writ of habeas corpus, in connection with 
 other constitutional guarantees. 
 
 In the Merryman case, above referred to. Judge Taney held, that 
 even if the writ of habeas corpus was suspended hy the act of Congress, and 
 a party not subject to the rules and articles of war was afterwards 
 arrested and imprisoned by regular judiciaL process, he could not be 
 detained in prison, for the article in the amendment of the Constitu- 
 tion, which provides for a speedy and public trial of persons, in all 
 criminal prosecutions, by an impartial jury in the. State and district 
 wherein the crime shall have been committed, &c.,&c., would prevent 
 it. This feature of the old Constitution is identical with article 1, 
 section 9, clause 17, of the Confederate States' Constitution. This 
 part of the Constitution vanishes at once if the enormous power 
 granted by the act of suspension can be upheld. The reasoning of 
 
Judge Taney on this point is clear, cogent and conviticing, and we 
 commend it to the careful consideration of Congress and the country. 
 lie speaks like Nestor, and his voice is as an oracle.- He exhibits 
 almost unparalleled moral sublimity ia thug 'speaking out*for the 
 rights of man, in the*»face of bristling bayonets, under the very 
 shadow of the throne of the tyrant, and amid tlfe corruptions of his 
 court. All the rights given by this clause are held ly him to be sacred 
 and inviolable. 
 
 Clause sixteen, of same section and article, provides for indi'ctmeht, 
 and the party shall not be deprived of life, liberty or property, with- 
 out due process of law. The great judge, in the case just noticed, 
 held, as we never heard doubted until lately, process of law meant 
 judicial process ! By a strange and novel mod^ of ^reasoning recently 
 in our hearing, we have heard that process of law did not mean jrro- 
 cess of law. We think laio of the land is held to be due process of 
 law — a trial by due course and process of law ; and we cite Magna 
 Charta, c. 29, 2 Inst. 50. Judge Coulter so held it, in one of the 
 ablest opinions ever delivered on this continent, or any other — 6 Penn 
 St., (Barr's) R. 86, 91. Kent, who made the law classic in this coun- 
 try, so held it — 2 Com. 13. It was so construed in two leading cases 
 in Tennessee — 2 Yerger 500, 10 id. 71. In North Carolina, in Hoke 
 vs. Henderson, 4 Dev. 1., the same doctrine is laid down, and, in fact, 
 we know not where it is not, Beyond all cavil, then, the words " due 
 process of law,''"' in this place, cannot mean less than a prosecution or 
 suit, instituted and conducted according to the prescribed forms and 
 solemnities, for ascertaining guilt. The security of life and liberty 
 lies at the bottom of the social compact ; and to say that this grant 
 of legislative power to suspend the. habeas corpus includes the right to 
 attack the liberty of a person in this way, is equivalent to saying that 
 the people have delegated to their servant* the power of defeating one 
 of the great ends for which the Government was established. In other 
 words, the people put it in their agents' hands for protection and 
 safety, and told them to destroy it if you please! Or, again, the 
 people made a free Government, and empowered the legislature to 
 make a despotism out of it ! It is this, in plain, simple, and unvar- 
 nished English. The rights vouchsafed under the two clauses just 
 cited, are dear to .us by virtue of their age. They are much the same 
 as the third and fourth artiol*^s of polity that .were recognized as form- 
 ing a part of the^English Government when Flenry VII. came tO the 
 throne. They stand now as imprescriptible rights of freemen. As 
 they prevented King and Parliament often, in their fierce and san- 
 guinary contests for power, from op^jressing and enslaving the people, 
 we should treasure them as our birthright, and should be slow indeed 
 to see them struck down by action of Congress, which, as much as 
 any other power, was intended to be curbed and restrained by them. 
 They are but empty and unmeaning songs, if Congress can at any 
 moment lay them aside, and deny them to the citizen. We cannot 
 yet believe this to be withm the authority of Congress. 
 
 Clause 15, of article 1, seclion-9, protects the people from 'unrea- 
 sonable searches and seizures, and provides no warrant shall isjiue but 
 
10 
 
 upon probable cause, supported by oath or affirmation, &c. We have 
 been told that the issuing of a warrant was merely a ministerial 
 act ! This is a sad mistake. * The issuing of a warrant is a direct 
 judiciTil act. A warrant is defined to be a process under seal, issued 
 by some court or justice, authorizing the o^cer to whom it is directed 
 to arrest or apprehend a person named ; {2?ul Burrill^s Law 
 Die. p. 1058.) By all, our usages and customs in this and the old 
 Government, a warrant, as named in the Constitution, occupied this 
 position — it was a judicial writ. That the Privy Council of England 
 issued them, only proves they w<3re judicial writs, for that council 
 clairaerl, and as we all k'Low, exercised vast and extraordinary judicial 
 powers for a long period of time. There can be no question, then, if 
 this clause of the Constitution means anything, that the arrests pro- 
 vided for by the act of suspension are clearly unconstitutional. But 
 let. us waive this, and suppose any person, upon his own motion, 
 whim or caprice, might issue a warrant to "arrest a party, or arrest 
 him without any wan ant at all, the question arises can he detain 
 him, or can Congress- authorize any party to have him kept, in view 
 of clauses 16 and 17 of article 1, section 9, already discussed? Just 
 suppose the party in jail, and no question raised as to how he cnme 
 there, what is to be done with these guarantees ? This is an enquiry 
 of moment, and we should be glad to have it answered. Take it in 
 any view you please in connection with these three clauses, (15, 16 
 and 17,) of equal grade and dignity with that authorizing the sus- 
 pension of the writ, this act of 15th February, 1864, violates the 
 Constitution as palpably as ever a statute did the organic law. And 
 we submit this conclusion to the House and the country with un- 
 shaken confidence, that, for the reasons assigned, it is correct and 
 perfectly tenable. 
 
 The public safety did .not require, as far as Congress knew, the 
 suspension of the writ, nor does it now require this suspension to 
 continue When we say Congress must be the judge of the exi- 
 gency demanding this action, it means Congress, upon the facts pre- 
 sented, must determine the question upon its own knowledge, and 
 not upon the mere belief or opinion of the Executive or any one else. 
 Because the President asks for the suspension, it is no good reason in 
 itself that the writ should be suspended. The facts upon which he 
 requests the suspension should be laid before Congress in just precisely 
 the same shape in which they "came to him. The Congress is required 
 to know the facts, and to be able to refer to them in a legal form. 
 This power cannot be exercised upon faith or in trust. As well may 
 a jury, whose province it is 'to ascertain the existence of a fact, find 
 this fact to exist because i\\(i judge might have told them so. The 
 responsibility upon Congress is poorly met and discharged, when they 
 undertake to suspend this writ, because the President tells them sim- 
 ply he thinks the writ ought to be suspended upon information he has, 
 which information does not come before Congress to be there sifted 
 and analyzed. The great poet., in' painting the wretched condition of 
 our parents in the garden, after plucking the forbidden fruit, repre- 
 gents them as being called upon in a solemn and awfiil manner, to 
 
11 
 
 know why this injunction was disobeyed, and vvhen the offence was 
 
 sought to be placed by one upon the other, the question is propounded, 
 who made the one lord and master of the other that this should be 
 done upon his order ? When Congress is called on to know why and 
 \ipon what facts this action was had, it will be an empty response to 
 say the Executive told us this fact existed, though there was no evi- 
 dence of it before us, and we cannot present you the testimony. The 
 President may well be mistaken on questions like the present — he may 
 be imposed on by designing persons. Therefore, the necessity for 
 Congress to enquire into and ascertain, for itself, the existence of the 
 fact. When the bill in Burr's conspiracy was before the Senate of 
 the United States, the President sent to Congress all the papeiii, let- 
 ters, &c., and other evidences in his possession, with his message, so 
 that Congress might see and judge for itself. In this cape nothing 
 of the sort was done. There was no evidence furnished the Congress 
 by the President beyond the statement contained in his message. Cer- 
 tainly the Prseident belived all there stated was true, and it might 
 have been, but this does hot relieve Congress of the duty to examine 
 and ascertain for itself. It is but another security for the citizen 
 that Congress must, from information presented, know this fact, and 
 the simple believing or knowing it by another will not answer the pur- 
 pose. 
 
 We hold, too, that Congress must not have any doubts on this'sub- 
 ject. If there be doubts the case is not made out. The case, as it 
 calls for the exercise of rare and unusual authority, must be made to 
 appear by clear and indubitable proof. The very section of the Con- 
 stitution conferiing this power, shows'it must leave no room for doubt. 
 The doubt existing must go in favor of the Constitution. This posi- 
 tion is most clearly deducible from all the adjudications on this sub- 
 ject, as well as from all the analogies furnished by legal enquiries. 
 And we hesitate not to say, if Congress had doubts on the existence 
 of the exigency, it was its duty to nave refused the suspension. 
 
 In the absence, then, of any testimony being furnished the Con- 
 gress, did the fact exist to justify this suspension all over the Confed- 
 ei-acy ? We think not. And before proceeding further let us here 
 call attention to a passage in the President's message, submitted Doc. 
 7th, at the session during which this act was passed: 
 
 a Pqj. nearly thne years this Government has exercised unquestioned 
 jurisdiction over many mvlions of willing and united people. It has met 
 and defeated vast armies of invaders, who had in vain sought its submission, 
 Suppoxted by the confidence and affection of its citizens^ the Confederacy has 
 lacked no element which distinguishes an ind^pejident nation, according to 
 the principles of public law. its legislative, executive and judicial depart- 
 ments, each in its sphere, have performed their appropriate functions with a 
 regularity as undisturbed, as in a time of profound peace, and the whok en- 
 ergies of the people have been developed in the organization of vast armien^ 
 while their rights and liberties have rested secure under the protection of 
 the courts of justice. '^'^ 
 
 Now, what great convulsion or upheaving has occurred to mar the 
 beauty and symmetry of this picture ? Certainly the public would 
 
12 
 
 not have been unacq^uainted with such startling events ? The state of 
 nffairs presented by the report of the majority on this point is cer- 
 tainly eloomy indeed. But it does not accord with the facts as the 
 President presents them in his message early in that session, nor do^s 
 it, we are of the opinion, accord with the true state of the case then 
 existing. ^' Look first upon this and then upon that picture," and judge. 
 It is true there was an invasion, but our armies were in good condi- 
 tion, and full of hope; many parts of the. country at peace and undis- 
 turbed, where the laws were in force and where no danger threatened. 
 It is true some men vrere trying to test their legal rights upon the 
 different laws enacted by Congress to fill up the army. This they 
 hadlfe right to do, and it were a great pity that they should 6'ver be 
 deprived of this right in a country claiming to be under a free gov- 
 ernment. It is true, beyond question, there were some localities in 
 which there was trouble, and may be strong measures were tiecessary 
 to reach the offenders, and the facts, doubtless, could have been pre- 
 sented in an authentic shape to the Csngress. But in the absence of 
 those facts Congress should not act. And, besides, to reach a few 
 localities, or a' few individual cases, gave no sufficient reason for this 
 suspension over the whole Confederacy. Now, we are ready to admit, 
 that upon the facts laid before the Congress, showing wide-spread dis- 
 loyalty and attempts in certain localities to overthrow the Government, 
 we would, undoubtedly, have voted for an act to suspend the writ as 
 to these. The bill in Burr's rebellion was minute as to locality and 
 as to crimes or offences attempted. Upon the proper evidence furn- 
 ished, we are now ready, as w^ have been all the time, to vote for an 
 act of this kind, but we cannot, and we do not, think it right to put 
 the whole country under this suspensiop for the sake of punishing 
 *J)ersons here and there in certain places. 
 
 We think it is fact well established by the past, and one we should 
 not forget, that the intimidation of a few disaffected persons is always 
 dearly bought by alienating any large class of the community, or by 
 incurring the risk of alienating them. The statement of the report 
 of the majority means simply this, and it was startling news to us, 
 that the people had become tired and sick of the struggle, and were 
 ready to abandon it, and they needed this coercive und harsh measure 
 to keep them in the line of their duty. This is a sad commentary, 
 indeed, upon the people's struggle,, the people's war, begun and pros- 
 ' ccuted to secure the people's rights. We must remind Congress and 
 the country, that a sort of instinctive reasoning always tells the peo- 
 ple what may be the learned are sometimes unable to discern, that the 
 truth and the justness of a cause begin to be very suspicious when they 
 stand in need of prisons and otlier means of torture to eke out its 
 evidences. But further, those very disaffected and disloyal persons 
 sought to be punished by this act, rejoice at the announcement of the 
 fact, that we had resorted to such measures, for they had been preach- 
 ing our tyranny and oppression, and they had been saying we 
 were no better than the northern Government. We all must remem- 
 ber what a pang of horror seized the country when we heard of the 
 arbitrary acts of the Lincoln Government at first — to such an extent 
 
did they go, that a southern writer of much fame, in speaking of the 
 imprisonments north in the bastilcs, said : "one universal wail then 
 y/eiit ui^ th'di habeas corpus was no more." En the indictments which 
 we have framed before the civilized world against our enemy, we say, 
 among other things, the writ of habtcs corpus has been suspended ! 
 We* should be careful and not lay ourselves liable to this charge too. 
 There is great danger in thus attempting to speculate upon the pa- 
 triotism of our people, as many deem this act does, of driving from 
 us a large class of persons who, in truth and in fact, are true to the 
 cause, and who, with the proper course pursued towards them, would 
 aid and assist in the str.uggle to the last. For there can be no doubt 
 whatever, that the continual effort and alarm, attendant on a state of 
 constant danger, will often compel nations, the most attached to lib- 
 erty, to resort, for repose and security, to institutions which have a 
 tendency to destroy their civil and political rights. To be more safe, 
 they, at length, become willing to run the risk of being less free. 
 The great moral effect upon our own people, upon the world at large, 
 and the cause of rejoicing to the north this measure gives, more than 
 countArbalance all the good effects thiit could flow from it for years to 
 come. While it cut every free citizen to the bone, it gave the world 
 reason to believe this was not the asylum of liberty and free govern- 
 ment we bad claimed it to be, and it stimulated the north with the 
 conviction that we were well nigh worn out, and the war could be 
 maintained only by the exercise of cruel and severe power. This 
 presents a wonderful state cf case, when we reflect, that, in the 
 first revolution, that good man, Washington, advised arrests to be 
 made only in the support of the civil authorities, and the orders for 
 arrests in the western insurrection seem to have emanated ft-om the * 
 federal judge of the Penn district: See Findlay-s History JVestern In- 
 surrection, 144-200-204, nor in the rebellions of 1787-94, was the 
 writ suspended in any but one of the States; and Congress refused to 
 suspend it in Burr's rebellion*? 
 
 If the facts did not then exist, they do not now, ' With great suc- 
 cess to our armies, our people buoyant and encouraged, and a general 
 effort, warm and zealous, to aid the Government in everything, we 
 look in vain for any evidences of disloyalty to such an extent as 
 would justify the country's remaining under this suspension. It is 
 true Lee is threatened with a large and maid host of invaders — rthis 
 we all expected. And it is true Johnston is now before a like b;ind 
 of tfaurderers. But every State in the Confederacy is fully and fairly 
 represented in our two armies, to the full quota, and have been. And 
 the wofk of death, there by those who would destroy us, need not be 
 aggravated by oppression under our own laws at home. Whatever 
 clamors there may be in localities as to our Government, yet no State 
 has declined or refused to do her duty. Georgia and Mississippi, ** 
 whose Legislatures have expressed their convictions upon this subject, 
 have come up at all times, and are now in the lines with their brave 
 men to be given up as sacrifices to liberty. North Carolina, in whose " 
 borders it has been often said there is an alarming disaffection, stands 
 high on the roll of honor, and in means and men, has contributed as 
 
11 
 
 one holding her great uame should contribute Then where does all 
 this trouble exist? Is it, in fact, in existence ? Hbs not pur Presi-'|i 
 dent been misled or imposed upon ? Then let our courts go on, per- 
 mit this confidence of the people to live untouched, and support th« 
 cause so dear to us all — do not let us longer distruj^t the judiciary ^f 
 the land — let us respect the laws of the country and counsel their 
 supremacy — let us imitate the noMe and sniat-like -person, Wash- 
 ington, who, as said by a oelebrated Englishman, even afier he had 
 made the lion crouch in the dust, was the purest, best and greatest of 
 men — he alwLiys enjoined the subordination of the raiHtary to the civil 
 power, and accompanied the army, in person, to see the civil suprem- 
 acy upheld and vindicated. Such is the spirit of our theory of 
 government, and a departure fi-om it, however, small, will end or>ly in 
 wrong and oppression. ^ 
 
 The reply we sometimes hear, that the injury is small, or, there 
 are only a few cases in which any mischief is done, is no just and 
 sufficient response. The great mountains are disintegrated by small 
 particles — the sting of an insect upon the young and tender sappling 
 may, in after years, cause the wrSck of a great man-of-war. Ilarap- 
 den was assessed only twenty shillings of. ship money, yet this made 
 an impress deep and lasting upon the British Government; contributed 
 no little to bring the head of Charles to the block, and rendered the 
 name of Hampden immortal wherever his mother tongu^ is spoken. 
 Nor does it me6t the- question to say it was* not intended that this 
 power should be generally executed — this is a pretext often insidious, 
 always insecure, and tending to mask the approaches of arbitrary Gov- 
 ernment, • although the best of intentions may have prompted the 
 enactment of the measure. 
 
 It is asking too much of the House to gi^e credence to the fact that 
 the mere act suspending this writ has contributed materially to our 
 recent successCvS. Whafon eartli has this to do with the brilliant 
 successes of Forrest, in Tennessee; Taylor, in Louisiana; Price, in 
 Arkansas; l^innegan, in Florida? If it has had atiy, certai^^ly there 
 has been no publication of the fact. We apprehend it has about as 
 much to do with these victories as an act of this House expelling one 
 of its-members for disloyalty would have in bringing the war to an 
 immediate and successful end. 
 
 It is not a fair mode of argument to say that those who oppose this 
 suspension dread the President, and have no confidence in him. Thyj 
 question should be discussed regardless of persons. Were the twelve 
 Apostles in his place we should f6el just e;^actly as we do, in this 
 respect, towards them as we do towards our President. AVe have not 
 this power to give Mr. Davis or any one else — and it is sufficient for 
 us, believing, as we do, that the- Constitution, which permits us to sit 
 here, forbids us giving the power — or, rather, does 'not itself confer it 
 upon us to be given to any one. But to meet this point directly — we 
 have confidence in him — he has not asked for undue powers in the 
 course of his administration — nor do we believe he desires to make 
 himself a despot, or to overthrow the liberties of the people — we can- 
 not see how he could desire this — we. voted willingly and cheerfully 
 
15 
 
 for him for this elevated position, and we do not regret it. We know 
 of no on« who could have managed our affairs better. We hope this 
 quite sufficient. « 
 
 Nor is it right and proper to charge those who oppose this act with 
 opposing the administration, or siding with those who do oppose it. 
 We have upheld and do now uphold the Administration. We have 
 voted for and supported all the leading measures of Congress to sup- 
 port and- carry on this war, and we have in all cases advised and 
 counseled our constituents to obedience to laws, which even did not 
 meet with our approval, in order to secure unity and harmony. But 
 in the discharge of a great constitutional duty, we must judge of it 
 by the best^lights God has given us, and in the conscientious effort to 
 meet the responsibility, we cannot be restrained in our efforts by any 
 charges of this kind. We intend to support the xldministration — we 
 deaire it to live and work out our destinies — secure our liberties, pre- 
 serve the Constitution unhaj-med amid the crash and wreck, which 
 we look upon as the best gift to man next to the Good Book itself. — 
 In this Government we must not forget much in the way of improve- 
 ment has been promised our people, and its every act will be closely 
 watched and enquired into. As the promise has been made, its per- 
 formance is looked for. The remarks of Hallam on the character 
 and reigm of William III. are so appropriate we cannot refrain from 
 inserting them : '* A new and revolutionary government is seldom 
 dealt fairly with Mankind, accustomed to forgive almost every 
 thing in favor of legitimate prescriptive power, exacts an ideal fault- 
 lessness from that which claims allegiance on the score of its utility; 
 the personal feelings of its rulers, the negligences of their administra- 
 tion, even the inevitable privations and difficulties which the nature 
 of human aff^airs or the misconduct of their predecessors create, are 
 imputed to them with invidious minuteness; those who deem their 
 own merit unrewarded, become always a numenous and implacable 
 class of adversaries ; those whose schemes of public improvement 
 have not been followed think nothing gained by. the change, and re- 
 turn to a restless censoriousness, in which they have been accustomed 
 to place delight." These are well worthy of consideration as being 
 in the main applicable here and. now. Then, in short, it is at no time 
 supposed the President desires to establish a despotic power over the 
 people. Such pov/er, we think, could never have been the waking 
 dream of the President ; but, as the slightes.t inroads upon private 
 rights and liberties are to be guarded against in any nation that de- 
 serves to be called free, we should always keep in view not only that 
 our Constitution is the paramount law, but- that a stab at it is a blow 
 at the Administration and the liberties of the people besides. The 
 best way to preserve the Administration and our liberties is to obey 
 and follow the Constitution. We cannot believe the time has come 
 when the conservation of ail demands the sacrifice of the legal rights 
 of the few ; *'and it 'is an unhappy consequence of all deviations 
 from the even course of law, that the forced acts o( overruling necea- 
 eity come to be distorted into precedents to serve the purposes of 
 arbitrary power." Mr. Davis cannot have this law executed in per- 
 
16 
 
 6011, in fact, the ve?y delcgutiun of authority to others contained in 
 the law takes it out of his hands ii^ many instances. So, however 
 much may be our confidence in him, it cannot attach to all those ^vho 
 are charged. "with the execution of this law. It creates too broad a 
 field for the workings of bad, cvij and malicious feelings over the 
 country. The evils, too, resulting from a wrong of this kind are 
 not within the reach of a remedy^no reparation can be made. 
 
 This brings us to consider the last featura of this law we desire to 
 discuss, and to it we invoke the special attention of Congress. ThjQ 
 power given to the general officer commanding the trans-Mississippi 
 Department cannot be, for reasons we have already advanced, con- 
 fided to him. It substitutes hiixi in the place of Congress, and clothes 
 him with judicial powers extraordinary indeed, and for which we find 
 no warrant in the ConstitutiDn. But supposing this could be done, 
 we must protest against it in vievv of the reckless and inhuman abuse 
 of power heretofore exercised there by persons in command. In 
 General Smith, who is now in command there, the people across the 
 Mississippi river have, as we believe, full and implicit confidence, 
 both in his ability and patriotism. He is wise and discreet, and up- 
 holds the civil tribunals in their supremacy over the military author- 
 ity. But we have no assurance' as to how long he will remain there ; 
 the rapid changes in the fortunes of war may remove him jit any 
 time. The experience of these people under his two immediate pre- 
 decessors is too bitter to reconcile them to this rule. Their acts of 
 oppression and misrule are written upon the hearts of those people in 
 letters of fire, and all the Fains of high heaven cannot .obliterate 
 them. The printed report of General Hindman confesses to assump- 
 tion of power on his paH not authorized by law, and seeks to justify 
 the same on account of the condition of affairs. • And he would seem 
 to intimate that if such measures had been resorted to before, the 
 country would have pj*ofited by them. Such is always the language 
 of the supporters of tyranny — where oppression docs not succeed, it 
 is because there has been too little of k. Clarendon thought the act 
 of Charks.II. against conventicbs would have produced beneficial 
 results if vigorously executed, when, in truth, the jails and prisons 
 were filled with persons gigainst whom this act was aimed. From the 
 previous history of the war over there it was useless to have given 
 this power, because the generals preceding General Smith,were in the 
 habit of imprisoning persons without, warrant, without offence 
 charged — suspending all taw. The people there have sufiered untold 
 wrongs and oppressions by- virtue of these usurpations. And so far 
 as any weakening of our cause in that qua^rter is concerned, these 
 acts have contributed more to bring it about than all the efforts of the 
 enemy. It. is a long ways from the President to that country, and 
 the journey is diilicult and dangerous — deeds are done there that can 
 not be remedied here — it will be too late. Mr. Davis may rebuke 
 misrule there, as he has done, but this does not restore the injured to 
 their rights, nor does it restore the confidence destroyed by those mis- 
 deeds. Congress should think well and maturely on this, and reflect 
 upon the state of affairs there, before sanctioning this suspension. 
 
17 
 
 And for those people who have suffered bo much under this ruldj w© 
 must say to Congress, ** No more of this Hal, and thou lovest me /" 
 
 The above are the reasons that have brought us to tj^ conclusion 
 that the ad of Idth February, 1B64. has no constitutidRl sanction, 
 and is not justified by the facts existing at the time of its passage^ 
 nor by those now existing. 
 
 The report of the majority makes no recommendation. We make 
 none, and will not unless some direct action is proposed to be taken 
 as to this measure. In that event, our course will be plain, and 
 direct. Until then, we leave the matter with the House. 
 
 This report, we are aware, is too long ; but the importance of th« 
 subject, the great issues at stake furnish an apology. We regard 
 much of the vitality of our free Constitution as depending upon this 
 contest, and while the heart of the country throbs with deep anxiety 
 as to the result, this decision will form an era in our, history remark- 
 able, indeed, and never to be forgotten. We have prepared this re- 
 port with all proper respect to these who have differed with us, for we 
 labor in the same cause and with the same ultimate end in view. For 
 them we can have no ill-feeling, but, on the contrary, we entertain 
 the kindest emotions towards each and all of them. We respect their 
 opinions— the subject is one of difficulty and of doubt. It never 
 fails to vex the best minds of any country when presented. They 
 may be right— we may be wrong ; but one thing is certain, this re- 
 port is now presented under a deep sense of the solemn responsibility 
 resting upon us, with a due appreciation of the interests involved, 
 with a proper regard to the perils by which our common country now 
 finds herself surrounded, and with the conviction of a conscientious 
 discharge of the trust confided to us by constituents of freemen. 
 
 In this fanatical w^ar, -waged against us, we need not doubt of the 
 result if we are true to the rights of the people — true to the Consti- 
 tution we are sworn to support, which is the first and paramount duty 
 of the legislator. Let each branch of the Government square its 
 action by this instrument, and the patriot soldiers in the field will 
 win us a peace at no distant day — a proud, permanent peace — and 
 our young Confederacy will come forth " a noble, puissant nation, 
 rousing herself like a strong man after sleep, and shakmg her invin- 
 cible locks" — her sun will ride high above us,« blazing in its meridian 
 like the sun of heaven; but, unlike that sun, it will know no night. 
 ^Respectfully submitted, 
 
 A. H. GARLAND. 
 2 B. S. GAITHER. 
 
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