The 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 with the will of the people, and hence is merely the substitution of a new form of law, which, being required for occasions when instant action is demanded, is necessarily summary in its character; that the extent to which this law is to be substituted for the ordinary one is to be discovered by the Executive from the general sense of the nation, when it cannot be made known through the common method of the ballot box and the legislature; that in the people resides the power ultimately to determine whether their wishes have been correctly interpreted or not; and, finally, that the Executive is equally responsible for coming short of the behests of the nation in the use of the contingent law or for transgressing the boundaries within which they desire him to constrain his actions.
The press of the United States has always been free to the extent that it might publish whatsoever it listed, within certain limits prescribed by the law. The press may still do this. But the nature of the law which prescribes the limits has changed with the times. The constituted authorities of the people of the United States are obliged now, in the people's interest, to employ the processes of summary rather than those of routine law. Hence when the press infringes too violently the boundaries indicated, and persists in so doing, the sterner penalty demanded by the dangers of the hour is enforced by the sterner method likewise rendered necessary. So long as Executive action concerning the press shall be in accordance with the general sentiment of the people, it will be within the strict scope of the highest law of the land. Should the Executive persistently exercise this summary law in a manner not countenanced by the nation, he is amenable to it under the strict letter of the Constitution for high crimes or misdemeanors, not the least of which would be the usurpation of powers not delegated to him by the people.
The Executive of the United States occupies at this time an exceedingly trying and dangerous position, which demands for him the cordial, patient, and delicate consideration of the American nation. He is placed in a situation where the very existence of the republic requires that he use powers not technically delegated to him, and in which the people expect, yea, demand him, to adopt methods transcending the strict letter of statute law, the use of which powers and the adoption of which methods would be denounced as the worst of crimes, even made the basis of an impeachment, should the mass of the populace be dissatisfied with his proceedings. It is easy to find fault, easy in positions devoid of public responsibility to think we see how errors might have been avoided, how powers might have been more successfully employed and greater results achieved. But the American Executive is surrounded with difficulties too little appreciated by the public, while an almost merciless criticism, emanating both from injudicious friends and vigilant foes, follows his every action. Criticism should not be relaxed; but it should be exercised by those only who are competent to undertake its office. The perusal of the morning paper does not ordinarily put us in possession of sufficient information to enable us to understand, in all their bearings, the measures of the Government. Something more is required than a reading of the accounts of battles furnished by the correspondents of the press to entitle one to express an opinion on military movements. It should not be forgotten that the officers engaged in the army of the United States are better judges of military affairs than civilians at home; that the proceedings of the Government, with rare exceptions, possibly, are based upon a fuller knowledge of all the facts relating to a special case, than is obtained by private persons, and that its judgment is therefore more likely to be correct, in any given instance, than our own. The injury done to the national cause by the persistent animadversion of well-intentioned men, who cannot conceive that their judgments may perchance be incorrect, is scarcely less, than the openly hostile invective of the friends of the South. The intelligent citizens of the North, especially those who occupy prominent positions as teachers and instructors of the people through the press, the pulpit, and other avenues, should ever be mindful that the political liberty which they possess of free thought and free speech, has imposed upon them the moral duty of using this wisely for the welfare of humanity, and that they cannot be faithless to this obligation without injuring their fellow men and incurring a heavy moral guilt.