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

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 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