Rebellion Record: a Diary of American Events: Documents and Narratives, Volume 10.
Frank Moore, Ed.

[No. 73.]

an act to suspend the privilege of the Writ of Habeas Corpus in certain cases.

Whereas the Constitution of the Confederate States of America provides, in article first, section nine, paragraph three, that “the privilege of the writ of habeas corpus shall not be suspended, unless when in case of rebellion or invasion, the public safety may require it;” and whereas, the power of suspending the privilege of said writ, as recognized in said article first, is vested solely in the Congress, which is the exclusive judge of the necessity of such suspension; and whereas, in the opinion of the Congress, the public safety requires the suspension of said writ in the existing case of the invasion of these states by the armies of the United States; and whereas, the President has asked for the suspension of the writ of habeas corpus,, and informed Congress of conditions of public danger which render the suspension of the writ a measure proper for the public defence, against invasion and insurrection: now, therefore,

The Congress of the Confederate States of America do enact, that, during the present invasion of the Confederate States, the privilege of the writ of habeas corpus be, and the same is hereby, suspended; but such suspension shall apply only to the cases of persons arrested or detained by order of the President, Secretary of War, or the general officer commanding the Trans-Mississippi Military Department, by the authority and under the control of the President. It is hereby declared that the purpose of Congress, in the passage of this act, is to provide more effectually for the public safety, by suspending the writ of habeas corpus in the following cases, and no others:

First. Of treason, or treasonable efforts or combinations to subvert the government of the Confederate States.

Second. Of conspiracies to overthrow the government, or conspiracies to resist the lawful authorities of the Confederate States.

Third. Of combining to assist the enemy, or of communicating intelligence to the enemy, or giving him aid and comfort.

Fourth. Of conspiracies, preparations, and attempts to incite servile insurrection.

Fifth. Of desertions, or encouraging desertions, of harboring deserters, and of attempts to avoid military service: Provided, that in cases of palpable wrong and oppression by any subordinate officer, upon any party who does not legally owe military service, his superior officer shall grant prompt relief to the oppressed party, and the subordinate shall be dismissed from office.

Sixth. Of spies and other emmissaries of the enemy.

Seventh. Of holding correspondence or intercourse with the enemy, without necessity, and without the permission of the Confederate States.

Eighth. Of unlawful trading with the enemy, and other offences against the laws of the Confederate States, enacted to promote their success in the war.

Ninth. Of conspiracies, or attempts to liberate prisoners of war held by the Confederate States.

Tenth. Of conspiracies, or attempts or preparations to aid the enemy.

Eleventh. Of persons advising or inciting others to abandon the Confederate cause, or to resist the Confederate States, or to adhere to the enemy.

Twelfth. Of unlawfully burning, destroying, or injuring, or attempting to burn, destroy, or injure, any bridge, or railroad, or telegraphic line of communication, or other property, with the intent of aiding the enemy.

Thirteenth. Of treasonable designs to impair the military power of the government, by destroying, or attempting to destroy, the vessels, or arms, or munitions of war, or arsenals, founderies, workshops, or other property of the Confederate States.

Sec. 2d. The President shall cause proper officers to investigate the cases of all persons so arrested or detained, in order that they may be discharged, if improperly detained, unless they can be speedily tried in the due course of law.

Sec. 3d. That, during the suspension aforesaid, no military or other officer shall be compelled, in answer to any writ of habeas corpus, to appear in person, or to return the body of any person or persons detained by him by the authority of the President, Secretary of War, or the general officer commanding the Trans-Mississippi Department: but upon the certificate under oath of the officer, having charge of any one so detained, that such person is detained by him as a prisoner, for any of the causes herein befere specified, under the authority aforesaid, further proceedings under the writ of habeas corpus shall immediately cease, and remain suspended so long as this act shall continue in force.

Sec. 4th. This act shall continue in force for ninety days after the next meeting of Congress, and no longer.

A true copy:

James M. Matthews, Law Clerk Approved February 15, 1864.

II. There will be appointed by this department, for each military division of the Confederacy east of the Mississippi River, one or more competent persons as commissioners to investigate the cases of persons who may be arrested or detained by any military authority, for any cause specified within the above recited act. Information of all such arrests will be given to him by the department commander as soon as practicable after they are made, and he will proceed to investigate the same. If, upon examination, a reasonable and probable cause for detention does not appear, he will certify the fact to the General or other officer in command, who will immediately discharge the prisoner from arrest. But if a reasonable and probable cause does appear, the commissioner will forthwith transmit to this department a copy of the evidence taken in the case, with his opinion thereon, for instructions, and meanwhile the prisoner shall remain in custody.

III. In all cases in which a person who has been enlisted in the army under any of the acts of Congress to provide for the public defence, or to raise troops to serve during the war, or to provide for local defence and special service, or who has been enlisted or enrolled for service under the acts of Congress further to provide for the public defence, or has been placed in the military service by the act of Congress to organize forces to serve during the war, approved seventeenth February, 1864, shall be held in custody for desertion or encouraging desertions, of harboring deserters, and of attempts to avoid military service, or of holding correspondence or intercourse with the enemy without necessity, and without the permission of the Confederate States, or of combining to assist the enemy, or of communicating intelligence to the enemy, or of giving him aid and comfort, or for any other cause specified in the act aforesaid ; and in all cases in which any person not belonging to the military service shall be held in custody by any military authority for any of the causes mentioned in the act, shall apply to any court or officer in the Confederate States for a writ of habeas corpus, it will be the duty of the officer having the command or custody of such person forthwith to report the case, with all the relevant facts, to the War Department for instructions as to the proper answer to be made to such writ, and in the mean time to retain the custody and control of such person under this order, a copy of which will be communicated to the officer or court issuing the writ, as affording the reason why time should be given to make a more complete return.

IV. In all cases when the requisite delay cannot be obtained, it will be the duty of the officer having command and custody of persons embraced in the preceding section, or who may have in custody as prisoners any person charged under any of the sections of the above recited act of Congress, to make a special return in writing, and under oath, that the body of such persons so detained by him is detained by the authority of the Secretary of War, and that he declines, under and by virtue of his authority and the act of Congress aforesaid, to produce the body of such person, or to make further appearance or return to the said writ.

V. The commanding General of the Trans-Mississippi Department will perform the functions devolving upon the War Department, under these orders, in that portion of the Confederacy.

By order,