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

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