Popularity of the liberty of public discussion The War of 1812 Causes of of the popularity of the liberty of public discussion free government. . But the exercise of a right is essentially different from an abuse of it." So it came to be understood in the United States, not only that no law may rightfully be enacted to restrain or abridge the freedom of speech or of the press, but also that every citizen may speak, write, and publish his thoughts upon all subjects without fear of subsequent punishment, provided he does not abuse that right. Public opinion in America has remained steadfast in its support of the liberty of the press in the strict sense of the term; but a tendency has developed in recent years to rate the liberty of public discussion less highly than formerly. Throughout the first half of the nineteenth century, however, the opinion of the American people continued much more favorable to the liberty of public discussion than prior to the enactment of the Federal Sedition Act of 1798. After the Sedition Act expired by limitation in 1801, the government attested its contrition for that impolitic measure by refunding the fines that had been imposed under its authority. The War of 1812 was fought without any effort on the part of the Federal Government to repress the expression of opinion, although in certain sections there was a dangerous body of opinion strongly hostile to the conduct of that war. Both Chancellor Kent and Justice Story bore witness to the popular tendency at the end of the first quarter of the century to subordinate the interests of domestic tranquillity to those of publicity in public affairs. Such a tendency was natural to an independent and self-reliant people, largely absorbed in the development of a new country. Individual initiative and enterprise were the most important qualities. for the task of pushing the frontier back into the western wilderness. A sparsely settled agricultural population had little to fear either from lawless mobs or from sporadic 1 Story, Commentaries, sections 1880-1882. 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 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. The opposition denounced it in the strongest terms. Among others one Vallandigham, a prominent The ValOhio politician and former Democratic congressman, case landigham 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 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 abuse of privileges of 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 |