There can be no doubt that Congresss is vested with power, under the confederate constitution, to suspend "the privilege of the writ of habeas corpus, when, in cases of rebellion or invasion, the public safety may require it;" Congress must, of course, judge, at their peril, of the existing necessity, and define the class of offenders from whom the privilege shall, for the time specified, be withheld. They were in a position to know the condition of many portions of the confederacy, about which we know but little as to current events; and they, perhaps, judged wisely as to the necessity. The objects, however, to be attained by the suspension of the privilege of this writ must be clear to every thinking and well-informed man who has given close attention to the subject, and is well illustrated from the legislation and jurisprudence of England. It is to deprive of a speedy, public trial, to prevent the release from legal custody, of those who may be found plotting treason, and conspiring against the government and the life of the community, until such time as they may be released or tried consistently with the public safety. This object should be the guide to all the regulations attending the suspension of the privilege of the writ; and no departure from principle, or the safeguards thrown around the liberty of the citizen, in the constitution of the State or confederacy, is necessary to the accomplishment of this end. The departure from principle, the danger, does not lie in the mere suspension of the writ, for this is provided for, where the public safety requires it, but in the manner in which the suspension may be regulated and carried out. It seems consistent with the objects to be attained by the suspension of this writ, that an information or affidavit of the facts against the accused should be filed, and that the warrant of arrest should be issued by some officer, legally authorized to issue such warrants. If a party is guilty of any of the offences named in the act of Congress, some person or persons must know the facts, and the information can be given, and the affidavit filed. It is not deemed necessary to discuss the question whether Congress possessed the power, under the constitution, to authorize the President, the Secretary of War, and the general officer commanding the trans-Mississippi military department under his authority and control, to order the arrest and to hold in custody citizens not in the military service, charged with any of the offences specified. It would be difficult to demonstrate the existence of such power; and the exercise of such power is not essential to the accomplishment of the ends proposed by the law. Unless this power is construed into an unlimited license, given to the President, to employ the military, through the officers named, under his orders as commander-in-chief of the army, to judge of the offences, and to make arrests, it can have but a very limited operation. If this is to be the construction and operation of the law, the military authorities are made judges of offences and crimes, properly cognizable by the judicial tribunals, and the liberty of the citizen is in their hands, at least so far as arrest and detention, for a time, is concerned. Why the courts of the country, which have been so ready to sustain the legislation of Congress in this struggle, should be ignored, and officers appointed by the president to investigate the cases of those arrested by the military authorities, I am unable to perceive. There are courts in almost every county and district, in every State of the confederacy, and they could not only issue warrants and cause arrests to be made in the instances defined by the act of Congress, but they could investigate all the facts, and report them to the president, under proper regulations. Such a course as this, it is believed, is much more consistent with the whole framework of our government than the one adopted by Congress. If the law was intended to prevent any citizen from an appeal to the established judicial tribunals, to determine whether or not it was in accordance with the constitution of the Confederate States, it is a precendent most dangerous, in practice most alarming, and utterly without constitutional warrant.
Practically, I fear that this act of Congress adds no strength to our cause. It divides public opinion as to its propriety. It produces alarm and dissatisfaction. Every offence defined in the law is provided for in the laws of Texas, and, I believe, in the laws of the Confederate States, and are properly cognizable by judicial tribunals; and were these judicial tribunals faithfully to discharge their duties they would much more effectually punish the offenders classified under this law than can be done under the regulations made by it.
I do not believe that the president will abuse the powers conferred upon him. I have too much confidence in his wisdom and patriotism; but whether he can prevent abuses or not, is more than doubtful. It is a question, however, above the mere disposition and character of the president, and the patriotic intentions of Congress. It is a question of safe precedent in law, and of wise and judicious legislation. It is the precedent of the confederate Congress in the suspension of the writ of habeas corpus, and, in all of its bearings, merits full consideration and an unequivocal expression of your views in regard to it. My convictions are, that the law should be repealed or entirely changed in its regulations.
The laws of Congress in relation to currency, the writ of habeas corpus, conscription, the attempt to vest the president of the confederacy and the executives of the States with the authority to deprive the governments over which they respectively preside of the officers constituted by the constitution and the laws, are certainly extraordinary and unprecedented acts of legislation, and, when taken together, most significant. It required unusual nerve to adopt them; and if they are justified at all, they must be justified by the unusual crisis, and as a means to save the life of the nation.
Let us all stand firm in our allotted places, and discharge fearlessly and faithfully the duties devolved upon us, and the God of Hosts, who has crowned with success our armies, elate with victory over so many fields of blood, will vouchsafe to our country independence, and a proud place in the family of nations.
Report of the Joint Committee on Reconstruction of the First Session Thirty-Ninth Congress, Government Printing Office, Washington, 1866, Florida - Louisiana - Texas, pages 112-113.