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? To state the question more directly: are all the laws but one to go unexecuted, and the Government itself go to pieces, lest that one be violated? 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 prevent it? But it was not believed that this question was presented. It was not believed that any law was violated. The provision of the Constitution 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,' is equivalent to a provision—is a provision—that such privilege may be suspended when, in case of rebellion or invasion, the public safety does require it. It was decided that we have a case of rebellion, and that the public safety does require the qualified suspension of the privilege of the writ which was authorized to be made. Now, it is insisted that Congress, and not the Executive, is vested with this power. But the Constitution itself is silent as to which or who is to exercise the power; and as the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended that in every case the danger should run its course until Congress could be called together; the very assembling of which might be prevented, as was intended in this case, by the rebellion.
"No more extended argument is now offered, as an opinion, at some length, will probably be presented by the Attorney General. Whether there shall be any legislation upon the subject, and if any, what, is submitted entirely to the better judgment of Congress."
The habeas corpus issue was thus placed squarely before Congress by the President himself.
- Note especially the original draft of this portion of the message in Nicolay and Hay, vol. IV, pp. 176–177.
- For this opinion, see 115 War Records, pp. 20 ff. The opinion is dated July 5; it was made public July 13, in response to a House resolution. Globe, 1st. S. 37th Cong. p. 117.
- Works, vol. II, pp. 59–60.