y , ; 
 
 REPORT 
 
 OF THE 
 
 CHIEF OF THE DEPARTMENT 
 
 OF 
 
 JUSTICE AND POLICE, 
 
 TO THE 
 
 GOVERNOR AND EXECUTIVE COUNCIL. 
 
 PART I. 
 
 ON THE POWERS OF THE CONVENTION. 
 
 COLUMBIA, S. 0.2 
 CHARLES P. PELHAM, STATE PRINTER. 
 
 1862. 
 
REPORT 
 
 OF THE 
 
 CHIEF OF THE DEPARTMENT 
 
 OF ' 
 
 JUSTICE AND POLICE, 
 
 TO THE 
 
 GOVEENOB AND EXECUTIVE COUNCIL. 
 
 PART I. 
 
 ON THE POWERS OF THE CONVENTION. 
 
 COLUMBIA, S. 0. : 
 CHARLES P. PELHAM, STATE PRINTER. 
 
 1862. 
 
e-^^TX^ 
 
 
 
 REPORT 
 
 To His Excellency, Governor Pickens, 
 
 Presiding over the Executive Council of South Carolina : 
 
 Sir : In compliance with your requirement, that I should report to the 
 Governor and Council the proceedings of the Department of Justice and 
 Police, I respectfully report, that, though the acts of my Department proper, 
 as well as the matters which have from time to time been assigned to me, 
 have, in almost every instance, been the subject of previous consultation in 
 the Council, and therefore I have but little of information to communicate, 
 I acknowledge the propriety of the call. It is right that these proceedings 
 should be formally spread upon the record. 
 
 The "Rules" established for my Department, adopted on the seventeenth 
 January, prescribed it as my first duty "to construe the Ordinances of the 
 several sessions of the Convention, and all Acts of the General Assembly, in 
 relation to the duties and powers of the Executive Authority of the State." 
 This, of course, makes me peculiarly responsible for the competency of "the 
 Governor and Council, acting together," under the Ordinance of the 
 Convention, to perform such acts as have beeen undertaken ; for I have in 
 no case entered a formal protest against any proceeding. 
 
 It is proper, then, that I should preface my report with some exposition 
 of the principles on which I have construed the powers conferred upon the 
 Executive Authority, to be exercised by the Governor and Executive 
 Council, "acting conjointly." 
 
 First, then, as to 
 
 THE POWERS OF THE CONVENTION. 
 
 Did this CONVENTION have power, for certain purposes, and during 
 certain exigencies, to create a new form of Executive Authority for the 
 State, and to confer on such Authority new powers, not hitherto vested in 
 that Department ? I answer to this, unquestionably, yes. 
 
 In the States Rights School of 1832 and '34 it was (with but one promi- 
 nent exception) the received opinion that a Convention, called in South 
 Carolina, under the provisions of the Constitution, was, for every political 
 
 4£5£69 
 
and legal purpose, the People. It was considered as a means, provided by 
 the Constitution itself, for invoking the action of the ultimate Sovereignty 
 of the State. This Sovereignty, admitted to be in the People in their 
 "aggregate and politic capacity " can only be exercised, practically, through 
 a convention, and a convention became thus to be, theoretically, considered 
 as the People themselves. Hence the form of ordaining their decrees 
 adopted by the Conventions of 1832, of 1852, and 1860, to wit: "WE, the 
 PEOPLE of South Carolina, in Convention assembled, do ordain and 
 declare^ 
 
 I am aware that in 1834, in the celebrated legal argument on the Oath 
 of Allegiance, although the advocates of the States . Rights School all 
 maintained this doctrine, yet Judge Harper gave the weight of his high 
 authority to a view somewhat different. He maintained that a Convention, 
 though sovereign, absolute and illimitable, for every purpose within the 
 range of objects for which they were assembled, was, beyond these purposes, 
 neither the people, nor did it represent the people. A great majority of 
 States Rights men held, however, the opinion expressed in one of the 
 reports of the day, which I myself had the honor to submit, an extract from 
 which I will now insert, (at an interval of twenty-eight years,) as containing 
 my present opinion. 
 
 "When this profound jurist (Judge Harper) says that a convention is 
 limited by the purposes for which it was called, we admit that, morally, it is 
 so limited, and that a delegate who but proposes a measure for a purpose 
 not contemplated by the people when he was elected, is guilty of moral 
 treason. But when Judge Harper assumes that the Judiciary, or any other 
 constituted authority, has a right to inquire whether a measure adopted in 
 Convention was or was not adopted in conformity with the intentions of the 
 people, he ascribes to the Judiciary a right which we cannot admit that they 
 possess. Is it not obvious that this gives the judges a practical control 
 over a convention of the people ? As in the case before us" (the Oath of 
 Allegiance) "two judges decide that the people did not intend what the 
 Convention believed, the Legislature believed, and what a great majority 
 of the people themselves still believe, they did intend — and the will of 
 the people is set at naught, and an Act of the Convention effectually 
 nullified." 
 
 Judge Harper happily defines Sovereignty to be "that power which, 
 " controlling all other constituted authorities, is itself not subject to the 
 " control of any." He considers Sovereignty " as abiding in the people of 
 "South Carolina." 
 
 He says, again, that this " is not that imaginary sovereignty of the people 
 "which has been supposed to exist even in a despotic monarchy." 
 
5 
 
 M ' The Constitution/ continues he, 'has provided in what manner the 
 " people shall be appealed to, viz : in a Convention called by two-thirds of 
 " both branches of the Legislature/ Again, they (the people in convention) 
 " ' may abrogate any Act of the Government, and all constituted authorities 
 "are bound to respect and obey their determination/ 'They' (the people in 
 Convention) 'are responsible to opinion, they are bound by good faith, they 
 " may be resisted by force, or subdued by superior power, but their acts are 
 "not subject to the legal control of any constituted authority/" This we 
 conceive to be sound Republican doctrine. But how the learned judge 
 can reconcile with this the right which he ascribes to the Judiciary,, to 
 decide whether a power exercised by this Convention has or has not been 
 delegated by the people, we cannot perceive. We defy any one to point out 
 a tittle of distinction, practical or in principle, between the control which 
 Judge Harper would thus give to the Judiciary over a Convention, and that 
 which it is admitted they have over the ordinary Legislature. They have 
 no right, in regard to the Legislature, to do more than decide whether or 
 not that body keeps within the pale of its authority — whether a power 
 exercised by them has or has not been delegated to them by the people — 
 and it is this, precisely, which Judge Harper claims for them in regard to a 
 Convention. The people appear in their sovereign capacity, only as assembled 
 in Convention — when so assembled, they are sovereign for EVERY PURPOSE, 
 or, practically, they can be so for none. Grant to the Judiciary the right 
 to question their acts, and you give them the power to limit and control. 
 In construction, of law, a Convention is the People, and its every act, 
 as far as the judges have any concern with it, the Act of the People. 7 ' 
 
 "To subject the acknowledged will of a convention to the control of any 
 other authority, is to deprive the people altogether of the means of express- 
 ing a Sovereign purpose, that is, a purpose which cannot, by any form of 
 law, be disputed." 
 
 The report proceeds further, as follows : 
 
 " Sovereignty can correctly be predicated only of that power in the State 
 which, possessing an ultimate control over all other- constituted authorities, 
 is itself subject to the control of none. 
 
 "Allegiance is due only to the Sovereign power, and is that paramount 
 political obligation which binds the individual in a State to acknowledge 
 and preserve unimpaired its Sovereignty. 
 
 "It is clearly distinguishable from the duty of obedience to delegated 
 authority. It is, indeed, the source from which emanates the obligation of 
 obedience to any other constituted authority than the Sovereign. 
 
 "Sovereignty delegates a portion of its power; Allegiance renders obedi- 
 ence to that power a duty. 
 
 425269 
 
6 
 
 "Sovereignty, from its definition, is necessarily single and indivisible, and 
 Allegiance must be equally so. 
 
 "In South Carolina, entire, unimpaired Sovereignty bides in the people 
 of the State, and a citizen of South Carolina owes entire and unimpaired 
 Allegiance to the people of South Carolina, so long as he continues a 
 citizen thereof. They, and they alone, have imposed upon him the duty of 
 obedience to the Constitution of the United States. They can release him 
 from the duty. They can transfer the duty. It exists by their fiat, and 
 they alone are its fit interpreters/' 
 
 "Thus far," says the report, "we speak the recorded opinions of South 
 Carolina herself. Is the principle less fixed that a Convention of the People 
 is not subject to the legal control of any constituted authority ?" 
 . Such, it was understood, were, in that day, the doctrines of Calhoun and 
 McDuffie, of Hayne, Turnbull and Hamilton, of Colcock, Earle, Butler, 
 Elmore, Player?; of all, indeed, of the States Rights School. I mention the 
 dead only, the living may speak for themselves. Indeed, State Rights, 
 State Remedies, State Sovereignty, Allegiance to the State, would all be 
 unmeaning phrases but for the acknowledged supremacy of a Convention of 
 the People. It is the cornerstone of the edifice. 
 
 But whether the view contained in the "Report" or that of Judge 
 Harper be true, is immaterial in the present inquiry. A convention, 
 according to both theories, is SOVEREIGN, and, therefore above all 
 constituted authorities, when acting within the sphere indicated 
 by the Legislature in the Act which assembles them. 
 I What, then, were the purposes for which the Convention was called 
 together by the Legislature, to assemble on the seventeenth day of Decem- 
 ber, 1860 ? And does the creation of the Executive Council come 
 within the scope of those purposes ? 
 
 First, what were the. circumstances of the call? The telegraph had 
 announced the election of Lincoln, and the Legislature determined at once 
 to invoke the highest power known to our institutions — a Convention of 
 the People of the State. Not as a subordinate ministerial agent, to enroll 
 the decrees of the Legislature, but "for the purpose of taking into conside- 
 ration the dangers incident to the position of the State in the Federal U?iion 
 established by the Constitution of the United States, and the measures which 
 may be necessary and proper for providing against the same, and thereupon 
 to take care that the Commonwealth of South Carolina shall suffer no 
 detriment." A disruption of the ties which had hitherto bound us to our 
 sister States was one thing contemplated. But the ultimate decision was 
 left to the Convention, as the Sovereign Authority. It was, then, within 
 the purposes of this Convention to abrogate the Constitution of the United 
 
States. South Carolina, for a time, at least, might stand alone, and it must 
 have been within the purposes of the Convention to modify the State Con- 
 stitution. A new alliance was contemplated with other States, and it was 
 within the purposes of the Convention to ratify a Provisional and Perma- 
 nent Constitution of the new Confederacy. 
 
 These high powers have not been questioned, yet they are but inferences 
 from the general powers. A AYAH was certainly within the contemplation 
 of some. Although secession was claimed as a right, not conflicting with 
 any obligation under the Constitution of the United States, and, therefore, 
 not revolutionary, it was apprehended that our claim to self-government 
 might, like, that of our forefathers of 1776, have to be vindicated by the 
 sword, and that, practically, provision must be made for the conduct of a 
 Revolution of blood. The Legislature declare, accordingly, that the 
 Convention shall consider our u DANGERS" — all the "dangers" growing 
 out of. our position, including, I presume, the dangers of the WAR,, which 
 might be the consequence of secession, and M the measures necessary and 
 proper for providing against the same." Have the apprehended " dangers'' 
 ceased? Are there no further " measure? necessary and proper for pro- 
 viding against the same"? The Ordinance of the Convention for "strength- 
 ening the Executive Department during the exigencies of the present 
 War," was manifestly intended as & "measure" for this very purpose. 
 But, as if to make assurance doubly sure, the Legislature declare, further, 
 that the Convention shall "thereupon take cave that the Commonwealth 
 of South Carolina shall suffer no detriment." 
 
 Now, conceding that the terms of the call of the Convention constitute, 
 the only " limitation" on the powers of a Convention, as held by Judge 
 Harper, can human language be contrived suggesting broader and more 
 absolute powers than the above ? And, " thereupon to take care that the 
 Commonwealth of South Carolina shall suffer no detriment" Is this the 
 language of a LIMITATION of power ? It is applied to a body repre- 
 senting the Sovereignty of the State — a body in all respects similar to 
 that which gave being to our State Constitution — a body by whose fiat our 
 Legislature, our Governor, and our Judiciary, have their existence. Is it 
 not in effect a declaration, in terms, that the Convention to be called should 
 have NO limitation on its powers ? 
 
 It has been said that the "dangers" apprehended were in the Union, and 
 the "measures" were only such as should provide against these. This is 
 special pleading. The " dangers" were such as were incident to the " po- 
 sition of the State," then, of course, " in the Union," but which the Con- 
 vention was specially intended to take out of the Union, and the "measures" 
 were meant to provide against the "dangers" which might grow out of that 
 position. Surely, the dangers which ensued have not yet ceased. 
 
It is contended that secession was the measure adopted, and that this 
 relieved us from all dangers " in the Union/' 
 
 But the Convention is enjoined " thereupon " (that is, after secession,) 
 " to take care that the Commonwealth of South Carolina shall suffer no 
 detriment." Detriment from what? I answer, the "measures" taken; 
 which were, Secession and the formation of the Southern Confederacy. 
 " Thereupon" war was made, and war still continues. Does war work no 
 " detriment ?" If it does, then it is the duty of the Convention to shield, 
 as far as may be, the Commonwealth of South Carolina from such det- 
 riment. 
 
 The question as to the extent of the powers of the Convention of 1832 
 had been the subject of controversy. Dr. Cooper, in his compilation of the 
 Statutes, had pronounced it still " an open question," as to that Convention; 
 and the Legislature, as if to provide against any possibility of cavil on this 
 occasion, so solemn and momentous, chose, in declaring the purposes of the 
 present Convention, to translate the Latin phrase by which the Senate of 
 Rome had for centuries conveyed DICTATORIAL POWER on her 
 Consuls. "Darent oper'am consules, ne quid respublica detri- 
 MENTI caperet," was the language of the famous decree which conferred 
 on Cicero and his compeer, for the suppression of Cataline's conspiracy, the 
 power known as " Ultimum" or "Extremun." A power which, Sallust tells 
 us, "often" "it had been the custom" to confer, "in atroci negotio," 
 u in a dangerous emergency " as the translator has it. The translator says, 
 "by it" (this decree) "the Republic was said to be entrusted to the 
 Consuls." 
 
 The phrase, originally selected for its aptness in conveying absolute and 
 illimitable power, had become fixed in its interpretation, by its long use by 
 the greatest nation of antiquity ; and in this language, with its construction 
 thus established throughout the civilized world, the Legislature thought 
 proper to express the extent of the purposes to which the Convention were 
 invited to address themselves. 
 
 Unless the Legislature said one thing, while they meant another, they 
 committed to this august body, during the exigencies of the time, the for- 
 tunes of the Republic; with power to act directly or through agencies — with 
 the power to make and unmake Constitutions, provisional or permanent ; 
 and to create governments, general or partial — temporary, or until a new 
 Convention shall order otherwise. In addition to the force of the language 
 used, the faot that the Act, as first introduced, should have fixed two years 
 as the period of duration for the Convention, indicates that something 
 more than the Act of Secession and the adoption of Constitutions was 
 intended. No one proposed a shorter duration than tico years; and this 
 
9 
 
 time, it was thought, might not give all the latitude which was requisite, and 
 it was stricken out. 
 
 Surely, " two years" was a longer period than would have been suggested 
 if the only business contemplated had been the Act of Secession and the 
 adoption of a new Constitution. In my judgment, the duration was in- 
 tended to be commensurate with the necessities of the occasion which called 
 them together, whatever that period might be. Our independence achieved 
 and acknowledged^ and peace restored, the Convention will then, but not 
 until then, be functus officio. To protract its existence beyond this period, 
 would be that breach of "good faith" which would justify that resort to 
 "force," which is the only remedy for usurpation in the Sovereign. On 
 the other hand, the Convention, in my opinion, would be derelict to their 
 duty if they abandon the helm until the ship is safely in port. 
 
 Such was the call under which the voters of the State elected the mem- 
 bers of the Convention. 
 
 However the fact may since have passed from the memories of some, the 
 people, at that time, realized that the body about to be assembled would 
 be charged with duties more grave, critical, and responsible than any which 
 had ever hitherto devolved upon any constituted authority in this State. 
 The circumstances under which the Convention was assembled — the terms 
 of the Act under which the call was made — the received opinions of the 
 majority of the people of the State as to the extent of ^he powers inherent 
 in such a body, were sufficient to apprize the most dull that suffrage was 
 being exercised on the most important occasion of their lives. 
 
 Accordingly, the people called forth their wisest and best men. There 
 was no constitutional disqualification for a seat in the Convention — no 
 abridgment of the people's unbiassed choice. Judges, Chancellors, public 
 officers of all kinds, clergymen, all were eligible. The result was that the 
 Convention, in the aggregate, has never been surpassed, in this or any other 
 country, for intelligence, patriotism, and moral worth. 
 
 Most of the members were either men drawn from voluntary retirement, 
 or those whose career and position in life were so far determined that the 
 ordinary temptations of ambition were absent. A less self-seeking and 
 more earnest body of citizens never assembled. 
 
 Such was the Convention, in theory and in fact, which passed the Ordi- 
 nance under consideration. 
 
 There are two other errors in regard to limitations on Conventions, which 
 need notice, though they would seem to destroy each other. It is con- 
 tended by some that a Convention can neither legislate or perform any 
 administrative act ; and to sustain this view it is claimed that it has been 
 the practice of Conventions to abstain from both. This is one position. 
 2 
 
10 
 
 Those who take this position deny that the Convention can appropriate 
 money or draw from the Treasury. This is all gratuitous assumption in 
 point of principle, and erroneous in point of fact. Was it an act of usurpa- 
 tion, when the Convention, at its first session, ordered three regiments to be 
 raised — two of regulars, by enlistment, and one of volunteers, commanded 
 by Col. G-regg ? Still more palpable, then, was the usurpation when they 
 appropriated three hundred thousand dollars for building a gun-boat. The 
 usurpation of the Convention began, according to this theory, as soon as the 
 Act of Secession was ratified, has continued ever since, and has not been 
 confined to those who favored the creation of the Executive Council. It is, 
 in general, on grounds of expediency, wise that Conventions should abstain 
 from all ordinary legislation, or exercise of ordinary executive power, where 
 the Legislature and Governor can be at once called into action. But so far 
 J s it from being true that Conventions have on principle withheld from all 
 action of this kind, that I venture the assertion that the Conventions 
 throughout the now Confederate States all more or less took, for a time, a 
 share of the management of affairs into their own hands. 
 
 Certainly, the Convention of Alabama, the proceedings of which I have 
 before me, passed, immediately after an Ordinance of Secession, one " for 
 the Military Defence of the State," another to " reorganize the Militia," 
 with very many others of like character. The power which can create 
 Governors and Legislatures may, in emergencies, perform the functions of 
 either. 
 
 The other most extraordinary position, in direct conflict with the last, is 
 the application of the law maxim to a Convention — non potest delegatus del- 
 egare — that is, that a Convention, exercising itself delegated authority, can- 
 not delegate to others. The first position assumes that all government must 
 be exercised through delegated authority, and the second, that it can only be 
 exercised directly, and cannot be lawfully exercised by delegated authority. 
 
 The ordinary and most appropriate sphere in which a Convention usually 
 acts, except in "atroci negotio" — dangerous emergencies — is in the creation 
 of governments, limited by constitutions prescribed by the Convention — 
 that is, in delegating portions of their own powers; but a Convention may, 
 in its discretion, proceed to exercise itself any power which it has authority 
 to delegate. , 
 
 *Again : the assumption that to give validity to any action of a Convention 
 intended to alter or suspend any part of the Constitution of the State, the 
 ordinance must EXPRESS that a repeal, alteration, or amendment is intended, 
 is gratuitous, and without reason. Where, I would ask, is any such prin- 
 ciple laid down ? 
 
 Like the Legislature, the Convention may repeal or alter, by impli- 
 cation. The last act of either body is that to be looked to as the exposition 
 
11 
 
 of its will, and as constituting the law, and everything conflicting is neces- 
 sarily repealed, suspended, or modified into accordance with the will last 
 expressed. In point of fact, it was well understood by the Convention that 
 this Ordinance was a suspension, for the time being, of some of the provisions 
 of the Constitution, and it was so intended. I am not aware that, within 
 the Convention, there was any one who questioned the power of that body 
 to pass the Ordinance. 
 
 I hold, then, that the Convention had the right, during the exigencies 
 of the war, to add to the powers of the Executive by giving control of some 
 matters which-, under the Constitution, are committed to the Legislature, 
 and to make the Executive, for some purposes, consist of five persons 
 instead of one. In other words, I hold that the Ordinance creating the 
 Council emanates from an authority as high and competent as that creating 
 the Constitution, and that being the LATEST expression of the will of 
 this Sovereign Body, it is, during its existence, paramount to the Constitution, 
 
 If this be so, we are to look to the Ordinance alone as the charter of our 
 rights and powers. 
 
 The views upon the construction of the Ordinance I will submit 
 to-morrow, as part second of my report. 
 
 ^ Respectfully, your ob't servant, 
 
 I. W. HAYNE. 
 
k 
 
 
REPORT 
 
 OF THE 
 
 uT 
 
 O u \ |r> 
 
 CHIEF OF THE DEPAET1CENT 
 
 OP 
 
 JUSTICE AND POLICE, 
 
 TO THE 
 
 GOYERNOB AND EXECUTIVE COUNCIL. 
 
 PART II 
 
 OK THE POWERS OF THE GOVERNOR AND 
 EXECUTIVE COUNCIL. 
 
 COLUMBIA, S. C: 
 CHARLES P. PELHAM, STATE PRINTER. 
 
 1862. 
 
T 
 
r*-^r~ 
 
 REPORT 
 
 PART II. 
 
 To His Excellency, Governor Pickens, 
 
 Presiding over the Executive Council of South Carolina : 
 I propose now to proceed to consider 
 
 THE POWERS OF THE GOVERNOR AND EXECUTIVE COUNCIL, ACTING 
 TOGETHER, UNDER THE ORDINANCE OF THE CONVENTION. 
 
 First, take the title: It is an Ordinance "for strengthening the Executive 
 Department during the exigencies of the present war." 
 
 The powers of the Executive are increased, which could hardly be 
 without taking from some other Department, and these new powers have 
 reference to the exigencies of the war. 
 
 The powers conferred on the Governor and Executive Council, u acting 
 together," are, first, to declare martial law, when, and where, and with 
 such limitation, as the Governor and Council might think the exigency of 
 public affairs required. This power, like Aaron's rod, might have been 
 made to swallow all the rest. Martial law is despotism. It substitutes the 
 will of the ruler for all other law, to the extent that martial law is declared. 
 Martial law declared over the whole State, and its extent (that is, the 
 subjects over which it should take control) defined, every power afterwards 
 specified in the Ordinance might have been exercised. This great first 
 power having been clearly conferred, has been to me a guide in determining 
 the general intention of the Convention, and thereby construing all that 
 follows. There is a power to arrest and detain disloyal and disaffected 
 persons, whose being at large is deemed dangerous to the public safety; 
 and to order and enforce such disposition and appropriation of private 
 property for public uses as the public good requires. There is the power 
 to make and cause to be executed all orders, regulations and arrangements, 
 as they shall from time to time find expedient, in regard to the military, 
 and for maintaining such efficient police as shall by them be thought 
 necessary. The power to appoint agents, to draw money from the treasury, 
 
to make nominations and appointments to military office, such as the 
 Governor had hitherto done j to fill accidental vacancies in civil appoint- 
 ments untif the Legislature meets — these powers, except filling accidental 
 vacancies in office, all relate to the " exigencies of the present war ;" and 
 except the appointments to military offices, are new powers, not ' before 
 possessed by the Executive ; and, in express terms, are to END with the 
 close of the war, and disbandment of our troops. (See Appendix, A.) 
 During the war, and for purposes connected with its prosecution, they are 
 very large. 
 
 Among the first measures in assertion of the extraordinary powers 
 conferred, was the proposition contemplating the seizure of silver plate for 
 the use of the State, introduced by your Excellency. The power, it 
 appeared to me, to act on this subject was clearly delegated under the 
 right " to order and enforce (subject to the owner's right to receive due 
 compensation from the State) such disposition of private property, or 
 appropriation thereof for public uses, as the public good shall appear to 
 them to require." The Council never felt committed on the policy of 
 acting finally on the matter, but voted merely for measures to ascertain the 
 amount, reserving the right to act according to circumstances hereafter. 
 
 The resolution, introduced likewise by your Excellency, for forcing 
 forward the manufacture of salt, was authorized under the power to make 
 " regulations and arrangements" for the support of such portion of the popu- 
 lation as might be called into service. Salt was an article of prime 
 necessity, and there was danger that it could not be procured at all when 
 wanted, unless something was done, as your resolution expressed it, "to 
 force forward " the manufacture. Under the same power, I have supposed 
 that the Governor and Council were authorised to purchase, and distribute 
 at cost, among the families of troops in service, cotton cards, and to sell at 
 cost such surplus salt as might be found in the commissary department. 
 
 Your Excellency introduced, on the same day, various resolutions, these 
 two being a part of the series. The remainder of the series were referred, 
 and some of them, in a modified form, were afterwards adopted. None of 
 them were objected to as being beyond the competency of the Governor and 
 Council, though they propose, I think, the largest powers which we have 
 ever been called on to exercise. 
 
 I insert a copy of the resolutions, although not adopted, as illustrating 
 the views entertained as to the extent of our authority. 
 
 " Resolved, That the one-half of every beat company in the State, to be 
 determined by lot in each company, be ordered immediately to Camp 
 Lightwood Knot, near Columbia, and there to be organized into companies, 
 battalions and regiments. All officers to be appointed by this Council. 
 
" Resolved, That one thousand tents be ordered for this encampment of a 
 reserved State force, and that to aid in carrying out this organization, the 
 Chief of the War Department be authorized, in conjunction with the 
 Adjutant General, to order into immediate service all the extra «ds 
 recently appointed in every District, to reorganize and take a census of the 
 militia of the State. 
 
 " Resolved, That the Chief of the War Department be authorized to 
 appoint immediately two competent persons to take charge of the two 
 powder-mills in the upper part of this State, and to take for the State all 
 powder they may have on hand, together with all material, at proper valua- 
 tion, and that any additional force be -employed to put both mills in full 
 operation for the State; and that all material suited for making powder that 
 can be procured, be immediately obtained, in such manner as the Chief of 
 the Military Department may direct. 
 
 " Resolved, That two competent persons be immediately appointed to 
 control the Iron Works in York and Spartanburg, if necessary, and to use 
 all their resources, with any additional labor required, to cast fifty cannon, 
 twenty of which shall be twelve and six-pounders, suited for field service ; 
 ten twenty-four-pounders, ten * thirty-two-pounders, and ten forty-two- 
 pounders, and to have them mounted and ready for service as soon as 
 possible. » , 
 
 " Resolved, That all gunsmiths and artizans in brass and iron be collected, 
 and employed in such foundries and workshops as may be designated, for 
 making and repairing all small arms that can be made ; and to execute the 
 above resolutions, the Chief of the War Department, in consultation with the 
 Adjutant General, is authorized to employ and use such agents as he may 
 think proper. 
 
 " Resolved, That one-half of all the cattle belonging to every person in 
 the State shall be immediately taken, at a fair valuation, for the State, and 
 receipts for the same be given, obligating the State for the amount, to dr*w 
 six per cent, interest sixty days after date, and that such as are not fit or 
 needed now to be killed, the owner of the same shall keep and fatten up, 
 for proper compensation, until needed. 
 
 " Resolved, That one-half of all the flour now in the State, and one-half 
 of all the wheat, be immediately taken, on proper valuation, for the State, 
 and receipts for the same given, as in the above resolution, and that the 
 Chief of Justice and Police be authorized to carry out these resolutions, in 
 such manner as he may think best for the State. 
 
 . Resolved, That all the troops now in the State, in actual Confederate 
 service, for twelve months, be immediately called on to reenlist for the 
 war, but not to be moved out of the State except by orders from this 
 Council — this condition to be of force at the end of their present term of 
 
6 
 
 enlistment, and that the Chief of the Military, in conjunction -with the 
 Adjutant General, be authorized to carry this out, in such manner as he 
 may think best for the State. 
 
 il Resolved, That our Senators and Representatives in Congress be re- 
 quested to urge immediately the adoption of measures necessary to establish 
 a great Regterve Camp at or near Atlanta, Georgia, of at least one hundred 
 thousand men, each State to furnish its proper quota, and all officers to be 
 appointed by the President, with the consent of the Senate." 
 
 .These resolutions contained the first proposition to bring a portion of the 
 population of the State into service by compulsion, and for assuming On our 
 part the appointment of officers, both Field mid Company. 
 
 The right to do this I never doubted, under the power " to make and 
 cause to be executed all such orders, regulations and arrangements as they 
 (the Governor and Council) shall from time to time find expedient for 
 bringing into service, organizing and supporting the whole or any part of 
 the population of the State, to be employed in the public service." This 
 grant of power, I think, was intended to give to the Council full control 
 over the organization of any forces to be raised. But if there could be a 
 doubt on this point, there is another Ordinance, passed by the same Conven- 
 tion, styled " An Ordinance in relation to a portion of the Militia," which 
 is too explicit for controversy. It declares, in section first : " That no part 
 of the Militia law shall stand in the way of the Governor and Council to 
 organize and call into service any portion of the Militia of the State, as may 
 seem most expedient." From the same source I derive the authority of the 
 Governor and Council to make all the orders, regulations and arrangements 
 in regard to the military, which were afterwards adopted, whether in con- 
 travention or not of Acts of the Legislature. 
 
 Next in point of time came the regulations in regard to the distillation 
 and sale of spirits. 
 
 Your Excellency must remember the representations from the upper 
 country as to the overwhelming evil which was to follow the unparalleled 
 investments made, and about to be made, in the business of distillation. 
 The high price of whisky had induced such numbers to seek this new 
 road to wealth, that a famine, it was thought, threatened the whole State. 
 Money has been called the " sinews of war," but with us breadstuffs % are 
 preeminently so. I thought the evil came within the scope of our powers. 
 By declaring martial law in regard to this particular subject-matter, it could 
 certainly have been reached. But being unwilling to startle the community 
 by an unnecessary declaration of martial law in prohibition of distillation • 
 from grain, I recommended the exercise of the power, as an incident to the 
 power " to make and cause to be executed all such orders, regulations, and 
 
arrangements, as they shall from time to time find expedient, for bringing into 
 service, organizing, and supporting, the whole, or any portion of the popu- 
 lation of the State to be employed in" the public service, and also for main- 
 taining such efficient police as shall by them be thought necessary." Your 
 Excellency, with, I think, every member of the body, yielded ready ac- 
 quiescence, and I was instructed to draw the resolutions. I looked to the 
 end proposed, and considered that the accustomed agencies would best effect 
 the object, and offered the resolution that it should be declared " a misde- 
 meanor" to distil grain, and the distillery should be deemed "a nuisance," 
 subject to abatement. This " regulation " and " arrangement" was thought 
 the most expedient, and was accordingly adopted, and made an u order," 
 by, I think, a unanimous vote. Our right to make *a regulation in pro- 
 hibition of distillation is too clear for controversy. If there is error, it can 
 only be in the manner of enforcement, which is less prompt and summary 
 than is usual in Executive orders. Thus far, however, it has worked well. 
 So, again, as to the sale of spirits under circumstances to affect our troops. 
 The evil had become so great, that there seemed to be an universal out- 
 cry — murders, brawls, fatal accidents among our troops, particularly while 
 passing on the railroads, had become of frequent occurrence. The scenes 
 exhibited were shocking to decency. The disposition to interfere was 
 unanimous with the Council, and your Excellency warmly approved. I 
 believed we had the power in this, as in the case of distillation, and pro- 
 posed similar resolutions in regard to sales of liquor within reach of our 
 troops on the line of railroads. In aid of these efforts, railroad companies 
 were appealed to, to refuse the transportation of spirits, and they promptly 
 responded. Never, in my experience, has the making of regulations so 
 nearly approached to the attainment of the objects proposed, with the use 
 of so little machinery in the enforcement. The cheerful, prompt, and 
 efficient cooperation of the Railroad Directors merit our thanks and the ap- 
 probation of the community. 
 
 Under the power " to make and cause to be executed regulations for an 
 efficient police " I ventured to propose some amendments to a legislative Act 
 which, by its title- and provisions, was purely a police regulation for the 
 invaded districts. As to military regulations, I have shown that we had 
 express authority to "disregard" legislative enactments. The regulation 
 of the police being in the broadest terms committed to us, I deemed that we 
 had the same power there. These have been termed " legislative acts. 1 ' 
 Regulations as to the military and police, have, for the time, necessarily, the 
 effect of laws. Many orders and regulations from the Treasury Department, 
 or the War Department, from the Adjutant General's office, are very like 
 legislation, in form and substance. " Orders, regulations, and arrange- 
 ments," so far as the subject-matter to which they refer is concerned, must 
 
8 
 
 infriDge upon, or rather must occupy, a common ground with " legislation " 
 on the same subject. If the Sovereign has delegated the right to make 
 these regulations, the authority is rightfully exercised, call them by what 
 name you will. According to the views I have presented, it rests alone 
 with the Sovereign power — a Convention of the People, which metes out 
 the powers of other constituted authorities — to determine what shall be the 
 * powers of the Executive Department, and what shall be the powers of the 
 department called the Legislature. These matters, all of which met with 
 the sanction of your Excellency, had, as I conceive, been committed to the 
 Executive Department, as constituted by the Convention. 
 
 The next matter, which was, as you know, for some time under the 
 anxious consideration of the Governor and Executive Council, was the pro- 
 hibition of the exportation of cotton, except under certain restrictions, unless 
 expressly sanctioned by the Confederate authorities. This measure, per- 
 haps the most doubtful adopted, was approved by your Excellency and the 
 whole Council, and did not originate with me. My reasons for approving 
 have already been placed on the record, and a copy of the letter stating 
 these reasons, by order of the Council was sent to Mr. Memminger, Secre- 
 tary of the Confederate Treasury, and published in the papers. I append 
 a copy of this letter to this report. (See Appendix, B.) 
 
 The establishment of a foundry for cannon, cannon equipage, balls and 
 shell, and for the repair of small arms, with a nucleus for a small-arms manu- 
 factory in future, was, in express terms, within our powers. So as to the 
 nitre plantation, now in satisfactory progress. So in regard to the impor- 
 tation of arms and medicines. 
 
 In the matter of the gun-boat, the Governor and Council acted under the 
 direct authority of the Convention, by whom the specific appropriation was 
 made. 
 
 The surveys of the Santee and Pee Dee, and mountain passes in this State 
 and North Carolina and Tennessee, though they cost a small amount of 
 money, were, as I conceive, within the general powers committed to us, as 
 well as the action since taken, as the consequence of those surveys. 
 
 Tfthe two acts which have excited most dissatisfaction are the call for 
 troops for the protection of Georgetown and the country above, after the 
 abandonment of the Confederate forces, and the action of the Governor and 
 Council with regard to a supply of negro labor in and near Charleston for 
 building fortifications 'and harbor obstructions. Yet neither of these acts, 
 surely, needi any defence on the score of competency on the part of the Gov- 
 ernor and Council. The first was, in effect, to bring into service a portion of 
 the population of the State, to be employed in public service, as we believed, 
 of the most important character. Your Excellency's proposition on this 
 subject was as follows : 
 
9 
 
 April 12, 1862. 
 
 "Resolved, That all the militia of Georgetown, Marion, Horry, and Wil- 
 liamsburg, be immediately ordered out and organized into companies, bat- 
 talions, and regiments, with the best arms and equipments that can for the 
 present be procured, and that one thousand tents be ordered for them. 
 
 "Resolved, That they elect their own company officers, and that this Coun- 
 cil appoint field officers for this organization. 
 
 "Resolved, That they be rendezvoused near Georgetown, to protect prop- 
 erty, and to endeavor to defend the country to the best of their ability, as 
 it is intimated that all our troops in Confederate service will be ordered 
 from that section of the State, and thus open Georgetown to the enemy. 
 
 "Resolved, That the Quartermaster and Commissary Generals be imme- 
 diately instructed to provide proper transportation and supplies for said 
 troops. 
 
 "Resolved, That orders be issued by the Chief of the Military Department 
 to stop any further supplies being furnished to the Confederate troops from 
 the State Commissary Department, and also that the same orders be issued 
 to the State Quartermaster General. 
 
 "Resolved, That the Chief of the Military Department be charged with 
 the execution of the foregoing resolutions." 
 
 The second, to wit : the impressment of negroes, was a disposition and 
 appropriation (temporarily) of private property for public use. The last I 
 shall touch on in another part of my report. 
 
 It has been objected that offices have been created. What offices ? Col. 
 Jones- was employed to audit some difficult accounts, and to act for General 
 Harllee in his absence on public business, at an expense of just one hun- 
 dred and eleven dollars and eleven cents. Major Melton was made an 
 assistant to the Adjutant General, the Council paying only his very mod- 
 erate bill of expenses in Columbia. Mr. Arthur was made Secretary of our 
 body without any compensation from the Treasury. Lieutenant Follin was 
 given a military rank, without any addition to the salary given him by the 
 Legislature as Clerk to the Adjutant General. An assistant to the Adju- 
 tant General was given for Charleston, at his request, with the rank and 
 pay of captain. A Superintendent of the cannon foundry and manu- 
 factory of arms was absolutely necessary for such an establishment, and so 
 as to the saltpetre plantation. Something was paid to some of the sur- 
 veyors of the Santee, the Pee Dee, and the mountains, and temporary com- 
 missions given, though in two of these instances the valuable services of Mr. 
 Niernsee were rendered gratuitously. Mr. James Tupper was made Central 
 Secretary of the Commissions for the removal of negroes from the seaboard, 
 and women and children from Charleston, at the request of a majority of 
 2 
 
10 
 
 the Commissions j a very laborious office, in which he generously served 
 without pay. The same gentleman has been recently appointed to examine 
 and audit the accounts of this State with the Confederate Government, 
 going back to the 20th of December, 1860, and he serves for the mere 
 amount of expense incurred in the performance of duty. The Doctors Le- 
 Conte have rendered valuable service in examining salt springs and lead 
 mines, but they, too, have worked gratuitously. The Chief of the Military 
 has a Clerk. I have a Clerk, at the rate of five hundred dollars per annum/ 
 and for a time had two Policemen in permanent employment, at fifty dollars 
 per month. This comprises, I think, everything, and the Ordinance ex- 
 pressly gives the Governor and Council the right " to constitute and appoint 
 such agents as shall be necessary for the more efficient execution of 
 the powers confided to them." 
 
 I am not aware that any of these appointments have been objected to by 
 your Excellency. 
 
 I shall proceed, in part three, to report upon the action taken on those 
 matters which have come more «particularly under my individual control. 
 
 Respectfully, your ob't servant, 
 
 I. W. HAYNE. 
 
APPENDIX 
 
 AN ORDINANCE 
 
 For Strengthening the Executive Department during the exi- 
 gencies OF THE PRESENT WAR. 
 
 We, the People of the State of South Carolina, in Convention assembled, 
 do declare and ordain, and it is hereby declared and ordained, as follows : 
 
 Sec. 1. Until the present war between the Confederate States of America 
 and the United States shall have been terminated, and the forces raised in 
 this State for the prosecution thereof shall have been disbanded, or until it 
 shall be otherwise ordained by the People in Convention, the Governor shall 
 be assisted, as is hereinafter directed, in the discharge of the duties imposed, 
 and in the exercise of the powers conferred upon him under the Constitution 
 and laws of this State, or the Ordinances of this Convention, by a Council, 
 to be called the Executive Council, which shall consist of the Lieutenant 
 Governor and three other citizens of the State, to be chosen by this Con- 
 vention by a ballot, a majority of the votes cast at such election being 
 necessary to a choice. 
 
 Sec. 2. The Governor and the Executive Council, acting together, shall 
 have power to declare martial law to such extent, in such places, and at 
 such times, as shall be required by the exigency of public affairs; to arrest 
 and detain all disloyal or disaffected persons, whose being at large they shall 
 deem inconsistent with the public safety; to order and enforce (subject to 
 the owner's right to receive due compensation from the State) such disposi- 
 tion of private property or appropriation thereof for public uses as the public 
 good shall appear to them to require ; to make, and cause to be executed, 
 all such orders, regulations, and arrangements, as they shall, from time to 
 time, find expedient for bringing into service, organizing and supporting, 
 the whole, or any part, of the population of the State, to be employed in 
 the public service, and, also, for maintaining such efficient police as shall, 
 by them, be thought necessary ; to make, procure or employ arms, muni- 
 
12 
 
 tions of war, and whatever else may be required for the defence of the 
 State j to constitute and appoint such agents as shall be necessary for the 
 more efficient execution of the powers hereby confided to them ; for these 
 purposes to draw money from the public Treasury, the Treasurers being 
 bound to pay their draft from any money in the Treasury ; to make all such 
 nominations and appointments to military offices as the Governor has here- 
 tofore been authorized to make j to fill all offices and appointments where 
 there is any vacancy for default of action by the Legislature or other ap- 
 pointing power, or for default of any provision by law of the mode of 
 appointment, and to fill, until the next meeting of the People in Conven- 
 tion, any vacancy which may occur in the Council by reason of the death, 
 resignation or removal from the State, of any one of the three members 
 thereof chosen by the Convention. 
 
 Sec. 8. In the discharge of all his duties and the exercise of all his 
 powers, not hereinbefore enumerated, the Governor is authorized to consult 
 the Council, and to require, if need be, its advice in writing. 
 
 Sec. 4. The Governor and Executive Council may, at their discretion, 
 arrange some or all of the business to be done by them, into different de- 
 partments, assign each department to one or more members of the Council, 
 and make rules for the management of a department or other business. 
 Acts done by either of the departments, in conformity to rules or orders 
 established by the Governor and Council, shall be valid, but shall be always 
 subject to the control of the Governor and Council. 
 
 Sec. 5. The Governor shall have access to the books and papers of every 
 department, and the opportunity of being, at all times, fully informed of the 
 condition of its business ; reports to him shall be made by the heads of de- 
 partments, when he may require them ; and he shall communicate to this 
 Convention and to the General Assembly, at every meeting of either body, 
 full information concerning the transactions of the Council and the cow 
 dition of every department. 
 
 Sec. 6. If there should be a vacancy in the office of Governor, the Lieu- 
 tenant Governor, having succeeded to that office, shall discharge the duties 
 herein required of the Governor; and the President of the Senate, having 
 succeeded to the office of Lieutenant Governor, shall become a member of 
 the Executive Council. 
 
 Sec. 7. The Governor (or if he be necessarily absent, the Lieutenant 
 Governor,) and any two of the members of Council elected by this Conven- 
 tion, shall be sufficient to constitute a quorum ; and the concurrence of a 
 majority of all present, there being a quorum, shall be required for the 
 validity of any action in which the Governor and Council are required to 
 act conjointly. If, by vacancies, the Council should be reduced to two or 
 

 
 13 
 
 only one, the Governor, for the time being, with those two or that one, shall 
 be sufficient to fill the vacancies in the places of members chosen by this 
 Convention, until the next meeting of the Convention. 
 
 Sec. 8. The Governor and Council shall keep a record of their proceed- 
 ings, and for this purpose the Special Private Secretary of the Governor 
 shall be their Secretary without additional pay. This record shall especially 
 show the reasons for every arrest made by their authority. Any one of 
 them shall have the privilege of filing and thus preserving as part of the 
 record, his dissent from their action in any matter. On the first day of 
 each meeting of the People in Convention, the record of all the proceedings 
 of the Governor and Council had prior thereto, shall be laid before such 
 Convention, and the said proceedings shall be subject to review, and to 
 repeal, or such modification by the Convention as to it shall seem proper. 
 
 Sec. 9. The first meeting of the Governor and the Executive Council 
 shall be had within seven days after the adjournment of the present sitting 
 of this Convention, at a time and place to be fixed by the Governor, of 
 which he shall give notice to each member. Afterwards their meetings 
 shall be regulated by their own orders and adjournments. 
 
 Sec. 10. Each member of the Council shall receive an annual salary of 
 two thousand dollars, payable quarterly out of the Treasury upon the draft 
 or order of the Governor. 
 
 Sec. 11. The President of the Convention, if in his opinion the public 
 exigencies shall require, or if he shall be requested in writing so to do by 
 any twenty members of the Convention, shall by notice under his hand duly 
 published, assemble this Convention, without delay, at a time and place to be 
 by him fixed, and he shall appoint a Committee of five members of the Con- 
 vention, a majority of whom, or the survivors or survivor of such majority, 
 shall, in case of the death, resignation, or disqualification of the President, 
 have the like authority and be under the like obligation to assemble the 
 Convention and appoint a time and place for its meeting ; but neither the 
 President of the Convention nor any member of the said Committee shall 
 be a member of the Executive Council. 
 
 [Certified copy.] , 
 
 B. F. ARTHUR, Clerk of Convention, 
 
14 
 
 B. 
 
 EXECUTIVE COUNCIL CHAMBER, ) 
 Columbia, S. 0., April 4, 1862. j 
 
 The following preamble and resolutions, adopted by tbe Governor and 
 Council, have been ordered to be published : 
 
 2f£ ^ 5JC j}i ^ ?}' ?jC ^ 
 
 Whereas, information has reached the Governor and Council that sundry- 
 small vessels have from time to time carried from the port of Charleston 
 cargoes of cotton, which the Governor and Council have reason to believe 
 have found their way to the enemy, and which certainly have not brought 
 back return cargoes of arms, munitions, or army supplies : Therefore, 
 
 Resolved, That during the continuance of the present blockade the ex- 
 portation of cotton from any port in South Carolina is hereby prohibited, 
 unless by the express permission of the Confederate or State authorities. 
 
 Resolved, That an agent, resident in the city of Charleston, be appointed, 
 who shall be authorized to grant permission for the exportation of cotton on 
 the terms hereinafter prescribed, to wit : Affidavit shall be made that no 
 part of the cotton exported shall, with the consent or connivance of the 
 exporter, find its way into the possession of ' the enemy; and bond, with 
 good surety, shall be given that the full amount of the net proceeds of the 
 sale of said cotton shall be brought back into the Confederate States in 
 arms, munitions of war, or army supplies, unless prevented by successful 
 interposition of the enemy. 
 
 [Extract from the Minutes of April 4.] 
 
 By order of the Governor and* Council. 
 
 F. J. MOSES, Jr., Secretary. 
 
 Columbia, April 11, 1862. 
 
 The resolutions of the fourth of April, after lying over for two days, and 
 the subject-matter undergoing discussion for several days previously, were 
 unanimously adopted, the policy being approved by the Governor and every 
 separate member of the Executive Council. We believed that we were but 
 attempting, as far as it was in the power of the State authorities to do so, to 
 carry out a settled policy, sanctioned by nine-tenths of the people of the 
 Confederate States. We have been of opinion that the exportation of 
 cotton, at all, was conceded to be an evil, so long as the blockade was 
 
15 
 
 tolerated by neutral powers, but that our necessities were such as to make 
 the importation of "arms, munitions, and army supplies," and perhaps some 
 other articles, an object so important that such importation more than 
 counterbalanced the evil of a limited exportation of cotton. We desired, 
 without in any degree interfering with the Confederate Government, to 
 make the exportation and importation correlative. To effect this, we 
 prohibit exportation, without express permission of the authorities of either 
 one or the other of the Governments. The failure to prohibit by the 
 Confederate Government is not an express permission. The custom-house 
 clearance we have not considered as an express permission, unless the 
 Goverment should declare that it is so intended. If it should so declare, we 
 are foiled in our efforts, that is all. But if it does not so declare, we 
 propose to prevent the exportation, unless by a special permission, accord- 
 ing to the circumstances of each case, from the one- authority or the other, 
 or by a permission through an agent on the general terms specified in the 
 second resolution. ' 
 
 Now, this can surely bring about no conflict between the Governments. 
 As to the citizens claiming rights as secured by existing laws — that, I admit, 
 is a different question. That is a question we supposed would be made ; 
 but unless the Confederate Government interferes in their behalf, we do 
 not doubt either our power, or the propriety of its exercise. 
 
 Some months ago, you must remember, that Mr. Trenholm proposed to 
 ship cotton, and had a vessel partly loaded for the purpose. Public opinion 
 was, at that time, so general and decided in opposition to such exportation, 
 that Mr. Trenholm, when appealed to, yielded to its force. He desisted for 
 the time, and took the cotton from his vessel. 1 shall not now enter into 
 the argument to show the grounds upon which this overwhelming popular 
 sentiment rested. I expressed my views pretty fully through the papers at 
 that time. Suflice it thafe, in the opinion of the Council, this sentiment is 
 well founded. We believe the exportation of cotton, in any other than 
 certain exceptional cases, to be injurious to the public interests. We are 
 charged with high powers for protecting the public safety, and promoting 
 the public welfare in the exigencies growing out of the present war. 
 Among these powers are these : "to declare martial law; to arrest disloyal 
 or disaffected persons, whose liberty we deem inconsistent with the public 
 safety; to make such disposition of private property, or appropriation 
 thereof, for public uses, as we consider that the public good requires." We 
 are further charged with "procuring arms, munitions of war, and whatever 
 else may be required for the defence of the State." Now, cotton about to 
 be exported is " private property," about, as we believe, to be appropriated 
 to mischievous uses; have we not the power to "dispose of" it in another 
 
16 
 
 way? If, in our opinion, it is needed " to procure arms, munitions," and 
 other things " required for the defence of the State," have we not the 
 power so to appropriate it? If we have the power to seize, dispose of and 
 appropriate the cotton for such purposes, can it be usurpation to declare 
 that the owner shall so appropriate it, if he exports it at all? The me"e 
 paper declaration is brutum fulmen unless enforced. If called upon to 
 enforce the declaration, then begins the exercise of real power. Of course 
 this has been considered, and when we seize the cotton and vessel, and 
 appropriate them ourselves to procure arms, by sending them ourselves to 
 Europe, we will do no more than exercise a power clearly delegated. 
 
 This argument applies to the powers of the Governor and Council, under 
 the Ordinance. As to the power of the State, does not the right of eminent 
 domain give to a State the absolute right to appropriate all private property 
 to public uses, subject only to the claim for compensation; more especially 
 in times of war and public peril ? 
 
 The simple resolution is no more than a Governor's proclamation. It 
 may be bad taste to order what cannot be enforced, but as I have before 
 said, it is only when enforcement is attempted that any substantial usurpa- 
 tion can exist. The right to enforce, in the way we propose, is, in my 
 judgment, clearly in the State, and as clearly delegated by the State to the 
 Governor and Council. I incline to think that any interference with the 
 exercise of this right, by the Confederate Government, would be usurpa- 
 tion on their part. But we do not propose to raise any question with tha* 
 Government. When that Government orders, or asks, or even expressly 
 permits cotton to go out, we not only do not attempt to enforce prohibition, 
 but we declare, beforehand, our assent. » 
 
 I have written very hastily, but the subject I have considered. 
 
 If Mr. W. F. Colcock be in Charleston, please show him this letter, and 
 ask him if he will accept the agency. He was appointed Agent simulta- 
 neously with the adoption of the resolution, and a copy of the resolution 
 sent to him. 
 
 I am yours, truly. 
 
 I. W. HAYNE. 
 
 To C. It. Miles, Esq., District Attorney C S.- 
 
Hollinger Corp. 
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