The Continental Monthly, Vol. IV. October, 1863, No. IV. | Page 3

expeditious
for the purposes of undisturbed and tranquil periods. But in times of
rebellion or invasion, the waiting and delay which are often essential to
the prosecution of forms prescribed for undisturbed epochs are, as has
been said, simply impossible. War is a period in which methods and
procedures are required diametrically opposite to those which are so
fruitful of good in days of peace. The lawbreaker who comes with an
army at his back cannot be served with a sheriff's warrant, nor arrested
by a constable. War involves unforeseen emergencies, to meet which
there is no time for calling Congress together, or taking the sense of the
populace by a ballot. It is full of attempted surprises, which must be
guarded against on the instant, and of dangers which must be quickly
avoided, but for whose guardance or avoidance the statutes make no
provision. Hence arises a necessity for a mode of ascertaining the will
of the people other than the slow medium of formal legislation or of
balloting.
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