USA > Georgia > The Confederate records of the State of Georgia, Vol 2 pt 2 > Part 10
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Treasury, and to credit the Treasurer with any losses that may accrue by reason of the failure of the bonds to bring par in the market.
ORPHANS' ESTATES.
On account of the present depreciated value of the Confederate securities, I recommend the repeal of the law which authorizes executors, administrators and trus- tees to invest the funds of those whom they represent in these securities. As the law stands it enables unscrupu- lous fiduciary agents to perpetrate frauds upon innocent orphans, and other helpless persons represented by them; and in effect, compels orphans and those represented by trustees to invest their whole estates in government bonds which no other class is required to do.
FURLOUGHS REFUSED.
On the 27th of February, when I issued my proclama- tion calling you into extra session, I telegraphed the Secretary of War and asked that furloughs be granted to members in military service to attend the session, and received a reply stating that it had "been concluded not to grant furloughs to attend the session," that "officers so situated are entitled to resign and may so elect."
I regret this determination of the Confederate Gov- ernment, as it places our gallant officers, who have been elected by the people to represent them, and to whom as well as their predecessors similarly situated, furloughs were never before denied in a position where it costs them their commissions to attempt to discharge their duties as representatives of the people.
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THE NEW MILITIA ORGANIZATION AND CONSCRIPTION.
Since your adjournment in December, the Adjutant and Inspector-General, under my direction, has done all in his power to press forward the organization of the Militia of the State, in conformity to the Act passed for that purpose; and I have the pleasure to state that the enrollments are generally made, except in a few localities where proximity to the enemy has prevented it, and the organizations will soon be completed.
At this stage in our proceedings, we are met with for- midable obstacles thrown in our way by the late Act of Congress which subjects those between 17 and 50 to en- rollment as conscripts, for Confederate service. This Act of Congress proposes to take from the State, as was done on a former occasion, her entire military force who belong to the active list, and to leave her without a force in the different counties sufficient to execute her laws or suppress servile insurrection.
Our Supreme Court has ruled that the Confederate Government has the power to raise armies by conscrip- tion, but it has not decided that it also has the power to enroll the whole population of the State, who remain at home, so to place the whole people under the military control of the Confederate Government and thereby take from the States all command over their own citizens, to execute their own laws, and place the internal police regulations of the States in the hands of the President. It is one thing to "raise armies," and another and quite a different thing to put the whole population at home under military law, and compel every man to obtain a
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military detail upon such terms as the central government may dictate, and to carry a military pass in his pocket while he cultivates his farm, or attends to his other neces- sary avocations at home.
Neither a planter nor an overseer engaged upon the farm, nor a blacksmith making agricultural implements, nor a miller grinding for the people at home, belongs to or constitutes any part of the armies of the Con- federacy; and there is not the shadow of Constitu- tional power vested in the Confederate Government for conscribing and putting these classes and others engaged in home pursuits under military rule, while they remain at home to discharge these duties. If conscription were Constitutional as a means of raising armies by the Con- federate Government, it could not be Constitutional to conscribe those not actually needed, and to be employed in the army; and the Constitutional power to "raise armies" could never carry with it the power in Congress to conscribe the whole people who are not needed for the armies but are left at home because more useful there, and place them under military government and compel them to get military details to plough in their fields, shoe their farm horses, or go to mill.
Conscription carried to this extent is the essence of military despotism-placing all civil rights in a state of subordination to military power and putting the personal freedom of each individual in civil life at the will of the chief of the military power. But it may be said that con- scription may act upon one class as legally as another, and that all classes are equally subject to it. This is un- doubtedly true. If the government has a right to con- scribe at all, it has a right to conscribe persons of all
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classes till it has raised enough to supply its armies. But it has no right to go farther and conseribe all who are by its own consent to remain at home to make supplies. If it considers supplies necessary, somebody must make them; and those who do it being no part of the army, should be exempt from conscription and the annoyance of military dictation while engaged in civil, and not mili- tary pursuits.
If all between 17 and 50 are to be enrolled and placed in constant military service, we must conquer the enemy while we are consuming our present crop of provisions, or we are ruined, as it will be impossible for the old men over 50 and the boys under 17 to make supplies enough to feed our armies and people another year. I think every practical man in the Confederacy who knows any- thing about our agricultural interests and resources will readily admit this.
If, on the other hand, it is not the intention to put those between 17 and 18, and between 45 and 50, into service, as soldiers, but leave them at home to produce supplies, and occasionally to do police and other duties within the State, which properly belong to the Militia of a State; or in other words, if it is the intention to simply take the control of them from the State so as to deprive her of all power and leave her without sufficient force to execute her own laws or suppress servile insurrection, and place .the whole militia of the State, not needed for constant service, in the Confederate armies under the control of the President, while engaged in their civil pur- suits, the Act is unconstitutional and oppressive, and ought not to be executed.
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If the Act is executed in this State, it deprives her of her whole active Militia, as Congress has so shaped it as to include the identical persons embraced in the Act passed at your late session, and to transfer the control of them all from the State to the Confederate Govern- ment.
The State has already enrolled these persons under the solemn Act of her Legislature, for her own defence, and it is a question for you to determine whether the necessities of the State, her sovereignty and dignity and justice to those who are to be affected by the Act, do not forbid that she should permit her organization to be broken up and her means of self preservation to be taken out of her hands. If this is done, what will be our condi- tion? I prefer to answer by adopting the language of the present able and patriotic Governor of Virginia: "A sovereign State without a soldier, and without the dignity of strength-stripped of all her men, and with only the form and pageantry of power-would, indeed, be nothing more than a wretched dependency, to which I should grieve to see our proud old Commonwealth reduced."
I may be reminded that the enemy has three times as many white men, able to bear arms, as we have, and that it is necessary to take all between the ages above men- tioned, or we cannot keep as many men in the field as he does.
If the result depended upon our ability to do this, we must necessarily fail. But, fortunately for us, this is not the case. While they have the advantage in numbers, we have other advantages which, if properly improved, they could never overcome. We are the invaded party, in the
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right, struggling for all we have, and for all we expect our posterity to inherit. This gives us great moral ad- vantage over a more powerful enemy who, as the invad- ers, are in the wrong, and are fighting for conquest and power. We have the inner and shorter lines of defense, while they have the much longer and more difficult ones. For instance, if we desire to reinforce Dalton from Wil- mington, Charleston, Savannah and Mobile, or to rein- force either of these points from Dalton, we can do so by throwing troops rapidly over a short line from one point to the other. If the enemy wishes to reinforce Charleston or Chattanooga from Washington or New Orleans, he must throw his troops a long distance around, almost upon the circumference of a circle, while we meet them with our reinforcements by throwing them across the diameter of a semi-circle. This difference in our favor is as great as four to one, and enables us, if our troops are properly handled, to repel their assaults with little more than one-fourth their number.
In consideration of these and numerous advantages which an invaded people, united and determined to be free, always has, it is not wise policy for us to undertake to keep in the field as large a number as the enemy has.
It is the duty of those in authority, in a country en- gaged in war, which calls for all the resources at com- mand, to consider well what proportion of the whole population can safely be kept under arms. In our pres- ent condition, surrounded by the enemy and our ports blockaded, so that we can place but little dependence upon foreign supplies, we are obliged to keep a sufficient num- ber of men in the agricultural fields to make supplies for
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our troops under arms and their families at home, or we must ultimately fail.
The policy which would compel all our men to go to the military field, and leave our farms uncultivated and our workshops vacant, would be the most fatal and unwise that could be adopted. In that case, the enemy need only avoid battle, and continue the war till we consume the supplies now on hand, and we would be completely in their power.
There is a certain proportion of a people in our condi- tion who can remain under arms and the balance of the population at home can support them. So long as that proportion has not been reached, more may safely be taken; but when it is reached, every man taken from the field of production and placed as a consumer in the mili- tary field, makes us that much weaker; and if we go far beyond the proportion, failure and ruin are inevitable, as the army must soon disband, when it can no longer be supplied with the necessaries of life. There is reason to fear that those in authority have not made safe calcula- tions upon this point, and that they do not fully appre- ciate the incalculable importance of the agricultural in- terests in this struggle.
We are able to keep constantly under arms two hun- dred thousand effective men, and to support and main- tain that force by our own resources and productions for twenty years to come. No power nor State can ever be conquered so long as it can maintain that number of good troops. If the enemy should bring a million against us, let us remember that there is such a thing as whipping the fight without fighting it, and avoiding pitched battles
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and unnecessary collisions; let us give this vast force time to melt away under the heat of summer and the snows of winter; as did Xerxes' army in Greece and Napoleon's in Russia, and the enemy's resources and strength will exhaust when so prodigally used, so much more rapidly than ours, when properly economized. In properly economizing our strength and husbanding our resources, lie our best hope of success.
Instead of making constant new drafts upon the agri- cultural and mechanical labor of the country, for recruits for the army to swell our numbers beyond our present muster rolls, which must prove our ruin, if our provisions fail, I respectfully submit that it would be wiser to put the troops into the army and leave men enough at home to support them. In other words, compel the thousands of young officers in gold lace and brass buttons, who are constantly seen crowding our railroads and hotels, many of whom can seldom be found at their posts; and the thousands of straggling soldiers who are absent without leave or, by the favoritism of officers, whose names are on the pay rolls, and who are not producers at home, to remain at their places in the army. This is justice alike to the country, to the taxpayer, to the gallant officers who stand firmly at the post of duty, and the gallant soldiers who seldom or never get furloughs, but are always in the thickest of the fight. When they are enduring and suffering so much, why should the favorites of power and those of their comrades who seek to avoid duty and dan- ger, be countenanced or tolerated at home, while their names stand upon the muster rolls?
If all who are able for duty, and who are nominally in service drawing pay from the Government, are compelled
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to do their duty faithfully, there will be no need of com- pelling men over 45 to leave their homes, or of disband- ing the State militia to place more men under the Presi- dent's control.
CONFLICT WITH THE CONFEDERATE GOVERNMENT.
But it may be said that an attempt to maintain the rights of the State will produce conflict with the Con- federate Government. I am aware that those who, from motives not necessary to be here mentioned, are ever ready to raise the cry of conflict, and to criticise and con- demn the action of Georgia in every case where her con- stituted authorities protest against the encroachments of the central power and seek to maintain her dignity and sovereignty as a State, and the Constitutional rights and liberties of her people.
Those who are unfriendly to State sovereignty and desire to consolidate all power in the hands of the Con- federate Government, hoping to promote their undertak- ing by operating upon the fears of the timid after each new aggression upon the constitutional rights of the States, fill the newspaper presses with the cry of conflict, and warn the people to beware of those who seek to main- tain their constitutional rights as agitators or partisans who may embarrass the Confederate Government in the prosecution of the war.
Let not the people be deceived by this false clamor. It is the same cry of conflict which the Lincoln govern- ment raised against all who defended the rights of the Southern States against its tyranny. It is the cry which the usurpers of power have ever raised against those who
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rebuke their encroachments and refuse to yield to their aggressions.
When did Georgia embarrass the Confederate Gov- ernment in any matter pertaining to the vigorous prose- cution of the war? When did she fail to furnish more than her full quota of troops when she was called upon as a State by the proper Confederate authority? And when did her gallant sons ever quail before the enemy, or fail nobly to illustrate her character upon the battle field ?
She can not only repel the attacks of her enemies on the field of deadly conflict, but she can as proudly repel the assaults of those who, ready to bend the knee to power for position and patronage, set themselves up to criticise her conduct, and she can confidently challenge them to point to a single instance in which she has failed to fill a requisition for troops made upon her through the regular constitutional channel. To the very last requisition made she responded with over double the number required.
She stands ready at all times to do her whole duty to the cause and to the Confederacy, but while she does this, she will never cease to require that all her constitutional rights be respected and the liberties of her people pre- served. While she deprecates all conflict with the Con- federate Government, if to require these be conflict, the conflict will never end till the object is attained.
"For Freedom's battle once begun, Bequeath'd by bleeding sire to son, Though baffled oft is ever won."
will be emblazoned in letters of living light upon her proud banners, until State sovereignty and constitutional
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liberty, as well as Confederate independence, are firmly established.
SUSPENSION OF THE HABEAS CORPUS.
I cannot withhold the expression of the deep mortifi- cation I feel at the late action of Congress in attempting to suspend the privilege of the writ of habeas corpus, and to confer upon the President powers expressly denied to him by the Constitution of the Confederate States. Under pretext of a necessity which our whole people know does not exist in this case, what ever may have been the motives, our Congress with the assent and at the request of the Executive, has struck a fell blow at the liberties of the people of these States.
The Constitution of the Confederate States declares that "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." The power to suspend the habeas corpus at all is derived, not from express and direct delegation, but from implication only, and an implication can never be raised in opposition to an express restriction. In case of any conflict between the two, an implied power must always yield to express restrictions upon its exercise. The power to suspend the privilege of the writ of habeas corpus derived by impli- cation must therefore be always limited by the express declaration in the Constitution that :
"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affir-
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mation, and particularly describing the place to be searched, and the persons or things to be seized," and the further declaration that "no person shall be deprived of life, liberty or property without due process of law." And that
"In all criminal prosecutions the accused shall enjoy the right of a speedy and public trial by an impartial jury of the State or district where the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the wit- nesses against him; to have compulsory process for ob- taining witnesses in his favor; and to have the assistance of counsel for his defense."
Thus it is an express guaranty of the Constitution that the "persons" of the people shall be secure, and "no warrants shall issue, " but upon probable cause, supported by oath or affirmation," particularly describing "the persons to be seized"; that "no person shall be deprived of liberty without due process of law" and that in "all criminal prosecutions" the accused shall enjoy the right of a speedy and public trial, by an impartial jury."
The Constitution also defines the powers of the Ex- ecutive, which are limited to those delegated among which there is no one authorizing him to issue warrants or order arrests of persons not in actual military service; or to sit as a judge in any case, to try any person for a criminal offense, or to appoint any court or tribunal to do it, not provided for in the Constitution as part of the judiciary. The power to issue warrants and try persons under crimi- nal accusations are judicial powers, which belong under
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the Constitution, exclusively to the judiciary and not to the Executive. His power to order arrests as Com- mander-in-Chief is strictly a military power, and is con- fined to the arrests of persons subject to military power, as to the arrest of persons in the army or navy of the Confederate States; or in the militia, when in the actual service of the Confederate States; and does not extend to any persons in civil life, unless they be followers of the camp or within the lines of the army. This is clear from that provision of the Constitution which declares that,
"No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger." But even here the power of the President as Commander-in-Chief is not absolute, as his powers and duties in ordering ar- rests of persons in the land or naval forces, or in the militia when in actual service, are clearly defined by the rules and articles of war prescribed by Congress. Any warrant issued by the President, or any arrest made by him, or under his order, of any person in civil life and not subject to military command, is illegal and in plain violation of the Constitution; as it is impossible for Con- gress by implication, to confer upon the President the right to exercise powers of arrest, expressly forbidden to him by the Constitution. Any effort on the part of Congress to do this, is but an attempt to revive the odious practice of ordering political arrests, or issuing letters de cachet by royal prerogative, so long since re- nounced by our English ancestors; and the denial of the right of the Constitutional judiciary to investigate such
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cases, and the provision for creating a court appointed by the Executive and changeable at his will, to take jur- isdiction of the same, are in violation of the great prin- ciples of the Magna Charta, the Bill of Rights, the Ha- beas Corpus Act, and the Constitution of the Confeder- ate States upon which both English and American lib- erty rest; and are but an attempt to revive the odious Star Chamber court of England, which in the hands of wicked kings was used for tyrannical purposes by the crown until it was finally abolished by Act of Parliament, of 16th Charles the first, which went into operation on the first of August, 1641. This Act has ever since been regarded as one of the great bulwarks of English liberty ; and it was passed by the English Parliament to secure our English ancestors against the very same character of arbitrary arrests which the late Act of Congress is in- tended to authorize the President to make; I append a copy of it to this message, with the same italics and small capital letters, which are used in the printed copy in the book from which it is taken. It will be seen that the court of "Star-Chamber," which was the instrument in the hands of the English king, for investigating his illegal arrests and carrying out his arbitrary decrees, was much more respectable, on account of the character, learning and ability of its members, than the Confederate Star-Chamber or court of "proper officers," which the Act of Congress gives the President power to appoint to investigate his illegal arrests.
I am aware of no instance in which the British king has ordered the arrest of any person in civil life, in any other manner than by judicial warrant, issued by the established courts of the realm; or in which he has sus- pended, or attempted to suspend the privilege of the writ
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of habeas corpus, since the Bill of Rights and Act of settlement passed in 1689. To attempt this in 1864 would cost the present reigning Queen no less price than her crown.
The only suspension of the privilege of the writ of habeas corpus known to our Constitution, and compatible with the provisions already stated, goes to the simple extent of preventing the release under it of persons whose arrests have been ordered under Constitutional warrants from judicial authority. To this extent the Constitution allows the suspension in case of rebellion or invasion, in order that the accused may be certainly and safely held for trial; but Congress has no right under pretext of exercising this power to authorize the Presi- dent to make illegal arrests prohibited by the Constitu- tion; and when Congress has attempted to confer such powers on the President, if he should order such illegal arrests, it would be the imperative duty of the judges, who have solemnly sworn to support the Constitution, to disregard such unconstitutional legislation and grant re- lief to persons so illegally imprisoned; and it would be the duty of the Legislative and Executive departments of the States to sustain and protect the judiciary in the discharge of this obligation.
By an examination of the Act of Congress, now under consideration, it will be seen that it is not an Act to sus- pend the privilege of the writ of habeas corpus in case of warrants issued by judicial authority; but the main pur- pose of the Act seems to be to authorize the President to issue warrants supported neither by oath nor affirmation and to make arrests of persons not in military service, upon charges of a nature proper for investigation in the
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