The Continental Monthly, Vol. IV. October, 1863, No. IV. | Page 4

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