The Continental Monthly, Vol. 4, No. 4, October, 1863. Various

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СКАЧАТЬ Government of the United States is the servant of its people. It was ordained to insure for them 'domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to' themselves and their posterity. Its laws and statutes are but the forms by which the people attempt to secure these things. But the people are sovereign, even over their laws. As they have instituted them for their own good, so may they dispense with them for their own good, whenever the national safety requires this. As they have established certain modes of lawful procedure for their own security, so may they adopt other modes when their safety demands it. Their laws and their codes of procedure are for their uses, not for their destruction. 'When a sister State is endangered, red tape must be cut,' said Governor Seymour, when it was telegraphed to him that some delaying forms must be gone through in order to arm and send off our State troops who were ordered to the defence of Harrisburg; and all the people said, Amen! The people of the United States inaugurated a government, whose forms of law were admirably suited to times of peace, but have been found inadequate to seasons of intestine strife. They have, as we have seen, superadded, in some degree, other methods of action, indorsing and adopting those to which the Executive was compelled to resort as better adapted to changed conditions. They have not done this in accordance with prescribed forms, in all instances, because the forms of civil government do not provide for a condition of society in which civil authority is virtually abrogated, to a greater or less extent, for military authority.

      In the same way and by virtue of the same sovereignty, the people of the United States may lay aside the common method of indicating their pleasure to the Executive, and substitute one more in consonance with the requirements of the times. They may make known that they do lay aside an established mode, either by a formal notice or by a general tacit understanding, as the exigencies of the case require. They may recognize the right, aye, the duty of the Executive to act in accordance with other methods than those prescribed for ordinary seasons, in cases where the national security demands this.

      But this is not an abandonment of the methods and forms of law! This is not the establishment of an arbitrary government! This is not passing from freedom to despotism! The people of this country are sovereign, let it be repeated. So long as its Government is conducted as its people or as the majority of them wish, it is conducted in accordance with its established principle. There were no freedom if the vital spirit of liberty were to be held in bondage to the dead forms of powerless or obsolete prescriptions in the very crisis of the nation's death struggle! Freedom means freedom to act, in all cases and under all circumstances, so as to secure the highest individual and national well-being. It does not mean freedom to establish certain codes of procedure under certain regulations, and to be forever bound under these when the preservation of liberty itself demands their temporary abeyance. So long as the Government fulfils the wishes of the people, it is not arbitrary, it is not despotic, no matter what methods an emergency may require it to adopt for this purpose, or in what manner it ascertains these wishes; provided always that the methods adopted and the modes of ascertainment are also in accordance with the people's desires.

      But how is the Executive to discover the will of the people if he does not wait for its formal expression? How is he to be sure that he does not outrun their desires? How is he to be checked and punished, should he do so? Precisely the same law must apply here as has been indicated to be the true one in reference to the fulfilment of the people's behest. Fixed, definite, precise, formal expressions of popular will, when time is wanting for these, must be replaced by those which are more quickly ascertained and less systematically expressed. The Executive must forecast the general desire and forestall its commands, regarding the tacit acceptance of the people or their informal laws, such as resolutions, conventions, and various modes of expressing popular accord or dissent, as indications of the course which they approve. Nor is this an anomaly in our legal system. The citizen ordinarily is not at liberty to take the law into his own hands; he must appeal to the constituted authorities, and through the machinery of a law court obtain his redress or protection. But there are times when contingencies arise in which more wrong would be done by such delay than by a summary process transcending the customary law. The man who sees a child, a woman, or even an animal treated with cruelty, does not wait to secure protection for the injured party by the common methods of legal procedure, but, on the instant, prevents, with blows if need be, the outrage. He oversteps the forms of law to secure the ends of law, and rests in the consciousness that the law itself will accept his action. When the case is more desperate, his usurpation of power generally prohibited to him is still greater, up to that last extremity in which he deliberately takes the whole law into his own hands, and, acting as accuser, witness, judge, executioner, slays the individual who assaults him with deadly weapons or with hostile intent.

      In this case now stands the nation. Along her borders flashes the steel of hostile armies, their cannon thunder almost in hearing of our capitol, their horses but recently trampled the soil of neighboring States. A deadly enemy is trying to get its gripe upon the republic's throat and its knife into her heart. The nation must act as an individual would under similar circumstances; and the nation must act through its Executive. If one person, attacked by another, should snatch from the hands of a passer his cane, in order to defend his life; if, in his struggles with his assailant, he should strike a second through misconception, how immeasurably ridiculous would be the action of these individuals, should they, while the death struggle were still raging, berate the man, one for breaking the law by taking away his cane, and the other for breaking the law by the commission of a battery! Every man feels instinctively that in such a crisis all weapons of defence are at his disposal, and that he takes them, not in violation of law, but in obedience to the law of extraordinary contingencies, which every community adopts, but which no community can inscribe upon its statute book, because it is the law of contingencies.

      The Executive of this, as of every country, resorts to this law when, in the nature of things, the statute law is inadequate. In doing this, he does not violate law; he only adopts another kind of law. A subtle, delicate law, indeed, which can neither be inscribed among the enactments, nor exactly defined, circumscribed, or expressed. When it is to be substituted for the ordinary modes of legal procedure, how far it is to be used, when its use must cease—these are questions which the people, as the sole final arbiters, must decide. As the individual in society must judge wisely when the community will sanction his use of the contingent law, the law of private military power, so to speak, in his own behalf; so must the Executive judge when the urgency of the national defence demands the exercise of the summary power in the place of more technical methods. If the public sentiment of the community sustain the individual, it is an indorsement that he acted justifiably in accordance with this exceptional law; if it do not, he is liable for an unwarranted usurpation of power. The Executive stands in the same relation to the nation. The Mohammedans relate that the road to heaven is two miles long, stretching over a fathomless abyss, the only pathway across which is narrower than a razor's edge. Delicately balanced must be the body which goes over in safety! The intangible path which the Executive must walk to meet the people's wishes on the one side, and to avoid their fears upon the other, in the national peril, is narrower than the Mahommedan's road to heaven, and cautiously bold must be the feet that safely tread it! Blessed shall that man be who succeeds in crossing. The nations shall rise up and call him blessed, and succeeding generations shall praise him.

      We come then to the relations of the press and the Executive. We have seen that all liberty is relative, and not absolute; that the people, the sovereigns in this country, have prescribed certain methods for securing, in ordinary periods, those blessings which it is their desire to enjoy; that when, under special contingencies, these methods become insufficient for this purpose, the people may, in virtue of their sovereignty, suspend them and adopt others adequate to the occasion; that these may not, indeed, from their very nature, cannot be of a fixed and circumscribed kind, but must give large discretionary power into the hands of the Executive, to be used by him in a summary manner as contingencies may indicate; that this abrogation or suspension, for the time, of so much of the ordinary civil law, in favor of the contingent law, is not an abandonment of free government for arbitary or despotic government, because it is still in accordance СКАЧАТЬ