Various - The Continental Monthly, Vol. 4, No. 4, October, 1863

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.