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disturbers of the peace. The disorderly elements in the community could often find a sufficient outlet for their surplus energies in aggression on the Indians. Despite the occasional mutterings about nullification and even secession, organized rebellion by force and violence was unthought of, and the danger of foreign invasion was remote. The bulk of the people had all the law and order they wanted for themselves, but they never got enough of public discussion. Distances were great, the means of transmitting intelligence were inadequate, and news was dear. Under such circumstances a high value was placed upon the liberty of public discussion and a low opinion was formed of that kind of peace and safety which depends for its existence upon the repression of unpopular activities by authority of law. Particularly objectionable characters, like Garrison and Lovejoy and the other early abolitionists, were occasionally mobbed, but in general agitators were tolerated, if not actually welcomed, as cheap contributors to the gayety of an otherwise dull and laborious existence. When public opinion could no longer tolerate the polygamous propaganda of Mormonism, people did not bother to suppress the published revelations of the Latter-Day Saints. They simply chased Brigham Young and his followers out into the desert.

Mexican

The limitation upon the exercise of the war power, The resulting from the partiality of the people for their liberty War of public discussion, was clearly revealed during the war with Mexico in 1846-47. The Mexican War was highly unpopular in some sections of the country, and those who were responsible for its origin and conduct were subjected to the most outspoken criticism. When James Russell Lowell put into the mouth of Hosea Bigelow the trenchant line, "Ez fer war, I call it murder," he certainly was not helping the recruitment of the army which was destined to

Abuse
of the
liberty
of public
discussion

during the

Civil War

invade Mexico. Yet no responsible statesman ventured to propose a new sedition act.

4

It was not until the Civil War that the abuse of the liberty of public discussion seriously disturbed the public peace and compelled the government to consider whether it should not be restrained in the interest of the public safety. At the outset the advocates of secession were permitted to speak, write, and publish freely. As Lincoln subsequently pointed out, most of the principal leaders of the Southern Confederacy were originally in the power of the Federal Government, and an arbitrary government could have made them prisoners of state. The organization of rebellion under such a government, had it been supported by public opinion in the North, would have been difficult. But public opinion certainly would not have sanctioned such a vigorous preference for the interests of law and order over those of publicity in public affairs. Later, when certain party leaders in the North carried to extreme lengths their verbal opposition to the policy of the Administration, the Government was sorely tempted to overcome the violence of language with the violence of arms. In March, 1863, General Burnside was commander of the military department of the Ohio. Among the population of his department, Southern sympathizers were numerous and had been made bold by the ill success of the Union forces in the late campaigns. The policy of emancipation, recently proclaimed effective, had alienated many of the War Democrats and had not yet shown its full power to breathe new vigor into the anti-slavery Unionists. It was one of the darkest periods of the war for the North.

Under such trying circumstances General Burnside issued his celebrated General Order No. 38. This unfortunate general, goaded by his recent failure in the field,

Burnside's

order

was eager to redeem himself by a brilliant record at his General new post. He was particularly desirous of improving the antimorale of the civilian population, and evidently thought he sedition could accomplish this by displaying extraordinary energy in the suppression of sedition. His order prohibited every kind of word or deed designed to give aid or comfort to the enemy. It declared in so many words that "the habit of declaring sympathy for the enemy will not be allowed in this department." It added: "It must be distinctly understood that treason, expressed or implied, will not be tolerated in this department." This order evoked a storm of criticism. There was no clear authority of law for the prosecution of civilians by the military for any offenses, certainly not for alleged seditious utterances. If there had been such authority, it is questionable whether the habit of expressing sympathy for the enemy could have been punished as sedition. Expressing sympathy for a suffering, though erring, foe is not the same as expressing a hope that he will win. Indeed, all Christians are enjoined to love their enemies, and it would seem not improper for Christian Americans, at least, to profess sympathy for their fellow Americans, even while they fought them. And the threat to punish treason which existed only by implication was so manifestly unconstitutional as to defy justification. This high crime is plainly defined in the Federal Constitution, and there is no room for implying treason where no overt act has been committed. Even supporters of the administration recognized the impropriety of this order. terms.

case

The opposition denounced it in the strongest Among others one Vallandigham, a prominent The Vallandigham Ohio politician and former Democratic congressman, joined in the attack upon it. In an address to a Democratic meeting he declared that it was a base usurpation of arbitrary power, that he despised it, and spat upon it, and

1 Nicolay and Hay, Abraham Lincoln, A History, Vol. VII, chapter 12.

Public criticism of policy

arrests for abuse of privileges

of

trampled it under foot. Proceeding next to speak of the Conscription Act, recently passed, he declared that men deserving to be free would not submit to such an encroachment upon their liberties. He referred to the President of the United States as "King Lincoln," and advised his audience to go to the polls at the earliest opportunity and hurl the tyrant from power. For such remarks he was dragged from his house in the night by a squad of soldiers, although they had no warrant for his arrest, and brought to General Burnside's headquarters, where he was tried by court-martial, convicted, and sentenced to incarceration for the duration of the war in a Federal fortress. Vallandigham thereupon issued an address to the people, declaring that he was thoroughly loyal to the Union and was being persecuted merely because he wished to save it by a different policy from that of the Lincoln Administration. In short, he insisted that he was a martyr to the cause of free speech and constitutional liberty.

The arrest and conviction of Vallandigham aroused the most passionate opposition. The Democratic press was of military outspoken in its condemnation. Meetings of protest were called in all parts of the Union. To one of these meetings, held in Albany, New York, Horatio Seymour, the Democitizenship cratic governor of that State, later a Democratic candidate for the presidency, addressed an open letter, denouncing the proceedings in the most vigorous terms. "It is an act,' he wrote, "which has brought dishonor upon our country; it is full of danger to our persons and to our homes; it bears upon its front a conscious violation of law and justice. . . . The transaction involved a series of offenses against our most sacred rights. It interfered with the freedom of speech; it violated our rights to be secure in our homes against unreasonable searches and seizures; it pronounced sentence without a trial, save one which was a mockery-which insulted as well as wronged. . . . If

this proceeding is approved by the Government, and sanctioned by the people, it is not merely a step towards revolution-it is revolution; it will not only lead toward military despotism-it establishes military despotism. . . . If it is upheld, our liberties are overthrown. . . . The action of the Administration will determine, in the minds of more than one-half of the people of the loyal States, whether this war is waged to put down rebellion at the South, or to destroy free institutions at the North. We look for its decision with the most solemn solicitude.” The meeting to which this letter was addressed formally resolved to call upon the President of the United States to reverse the action of the military tribunal by which Vallandigham had been condemned, and to restore him to the liberty of which he had been unconstitutionally deprived. Thus the question was clearly raised, where the line should be drawn between the duty of the government to provide for the common defense and its duty to secure the liberty of the individual to speak, write, and publish his sentiments on public affairs.

defense

President Lincoln did not evade the issues which this Lincoln's case brought so conspicuously to the attention of the of the people. He was too candid to pretend that Vallandigham Policy of was guilty of treason or of any other offense under the arrests laws of the United States. He conceded that the case raised the naked issue whether the government had a general power in time of war to make arrests unauthorized by law, when deemed necessary for the public safety. He called attention to the large number of Confederate partisans in many of the loyal States and asserted that juries drawn in the ordinary manner would frequently have at least one member more ready to hang the panel than to hang the traitor. He pointed out that, though such

1 Nicolay and Hay, Abraham Lincoln, A History, vol. vi, pp. 341

342.

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