Texas Review of Law & Politics, Volume 20, Number 1, Fall 2015 Page: 22
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Texas Review of Law & Politics
Confederacy, such as Generals Breckinridge, Lee, andJohnston, at
the start of the war?'49 He continued, "Unquestionably if we had
seized and held them, the insurgent cause would be much weaker.
But no one of them had then committed any crime defined in the
law. Every one of them, if arrested, would have been discharged on
Habeas Corpus, were the writ allowed to operate."'50 Suspension of
the writ made clear that captured Confederates could not seek the
benefits of the very civilian legal system that they sought to
overthrow.
Lincoln's July 4, 1861, message to the special session of Congress
mounted a powerful defense of his suspension of the writ.151 He
argued that his presidential duty called upon him to protect the
Constitution over and above the decisions of the Supreme Court:
"The whole of the laws which were required to be faithfully
executed, were being resisted, and failing of execution, in nearly
one-third of the States."151 Saving the Union from a mortal threat,
Lincoln suggested, could justify a violation of the Constitution and
the laws, and certainly a single provision of them:
Must they be allowed to finally fail of execution, even had it been
perfectly clear, that by the use of the means necessary to their
execution, some single law, made in such extreme tenderness of
the citizen's liberty, that practically, it relieves more of the guilty,
than of the innocent, should, to a very limited extent, be
violated? '53
Lincoln then famously asked the question "more directly": "[A] re
all the laws, but one, to go unexecuted, and the government itself go
to pieces, lest that one be violated?"154 He suggested that
painstaking attention to the habeas corpus provision would come at
the expense of his ultimate constitutional duty: saving the Union.
"Even in such a case, would not the official oath be broken, if the
government should be overthrown, when it was believed that
disregarding the single law, would tend to preserve it?"155
Lincoln performed some acrobatics to pull back from a direct
149. Abraham Lincoln, To Erastus Corning and Others (June 12, 1863), in 6 THE
COLLECTED WORKS OF ABRAHAM LINCOLN, 1862-1863, 260, 265 (Roy P. Basler ed., 1953).
150. Id.
151. Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), in 4 THE
COLLECTED WORKS OF ABRAHAM LINCOLN, 1860-1861, 421, 428-31 (Roy P. Basler ed., 1953).
152. Id. at 430.
153. Id.
154. Id.
155. Id.22
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University of Texas at Austin. School of Law. Texas Review of Law & Politics, Volume 20, Number 1, Fall 2015, periodical, September 2015; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth839390/m1/36/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.