The Continental Monthly, Vol. 4, No. 4, October, 1863 Devoted to Literature and National Policy online

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VOL. IV. - OCTOBER, 1863. - No. IV.

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An important discussion has arisen since the commencement of the war,
bearing upon the interests of the American Press. The Government has
seen fit, at various times, through its authorities, civil and military,
to suppress the circulation and even the publication of journals which,
in its judgment, gave aid and comfort to the enemy, either by disloyal
publications in reference to our affairs, or by encouraging and
laudatory statements concerning the enemy. The various papers of the
country have severally censured or commended the course of the
Government in this matter, and the issue between the Press and the
Authorities has been regarded as of a sufficiently serious nature to
demand a convocation of editors to consider the subject; of which
convention Horace Greeley was chairman. A few remarks on the nature of
the liberty of the press and on its relations to the governing powers
will not, therefore, at this time, be inopportune.

Men are apt, at times, in the excitement of political partisanship, to
forget that the freedom of the press is, like all other social liberty,
relative and not absolute; that it is not license to publish whatsoever
they please, but only that which is _within certain defined limits_
prescribed by the people as the legitimate extent to which expression
through the public prints should be permitted; and that it is because
these limits are regulated by the whole people, for the whole people,
and not by the arbitrary caprice of a single individual or of an
aristocracy, that the press is denominated free. Let it be remembered,
then, as a starting point, that the press is amenable to the people;
that it is controlled and regulated by them, and indebted to them for
whatever measure of freedom it enjoys.

The scope of this liberty is carefully defined by the statutes, as also
the method by which its transgression is to be punished. These
enactments minutely define the nature of an infringement of their
provisions, and point out the various methods of procedure in order to
redress private grievance or to punish public wrong, in such instances.
These statutes emanate from the people, are the expression of their
will, and in consonance with them the action of the executive
authorities must proceed, whenever the civil law is sufficient for the
execution of legal measures.

But there comes a time, in the course of a nation's existence, when the
usual and regular methods of its life are interrupted; when peaceful
systems and civilized adaptations are forced to give place to the ruder
and more peremptory modes of procedure which belong to seasons of
hostile strife. The slow, methodical, oftentimes tedious contrivances of
ordinary law, admirably adapted for periods of national quietude, are
utterly inadequate to the stern and unforeseen contingencies of civil
war. Laws which are commonly sufficient to secure justice and afford
protection, are then comparatively powerless for such ends. The large
measure of liberty of speech and of the press safely accorded when there
is ample time to correct false doctrines and to redress grievances
through common methods, is incompatible with the rigorous promptitude,
energy, celerity, and unity of action necessary to the preservation of
national existence in times of rebellion. If an individual be suspected
of conspiring against his country, at such a time, to leave him at
liberty while the usual processes of law were being undertaken, would
perhaps give him opportunity for consummating his designs and delivering
the republic into the hands of its enemies. If a portion of the press
circulate information calculated to aid the foe in the defeat of the
national armies, to endeavor to prevent this evil by the slow routine of
civil law, might result in the destruction of the state. The fact that
we raise armies to secure obedience commonly enforced by the ordinary
civil officers is a virtual and actual acknowledgment that a new order
of things has arisen for which the usual methods are insufficient, civil
authority inadequate, and to contend with which powers must be exercised
not before in vogue. Codes of procedure arranged for an established and
harmoniously working Government cannot answer all the requirements of
that Government when it is repudiated by a large body of its subjects,
and the existence of the nation itself is in peril.

It is evident, therefore, that at times the accustomed methods of Civil
government must, in deference to national safety, be laid aside, to some
extent, and the more vigorous adaptations of Military government
substituted in their stead. But it does not follow from this that
_arbitrary_ power is necessarily employed, or that such methods are not
strictly legal. There is a despotic Civil government and a despotic
Military government, a free Civil government and a free Military
government. The Civil government of Russia is despotic; so would its
Military government be if internal strife should demand that military
authority supersede the civil; the Civil government of the United States
is free, so must its Military government be in order to be sustained.

But what is a free Military government? There is precisely the same
difference between a free and a despotic _military_ polity as between a
free and a despotic _civil_ polity. It is the essential nature of
_despotic_ rule that it recognizes the fountain head of all power to be
the ruler, and the people are held as the mere creatures of his
pleasure. It is the essence of _free_ government that it regards the
people as the source of all power, and the rulers as their agents,
possessing only such authority as is committed by the former into the
hands of the latter. It matters not, therefore, whether a ruler be
exercising the civil power in times of peaceful national life, or
whether, in times of rebellion, he wields the military authority
essential to security, he is alike, at either time, a despot or a
republican, accordingly as he exercises his power without regard to the
will of the people, or as he exercises such power only as the national
voice delegates to him.

Wendell Phillips said in his oration before the Smithsonian Institute:
'Abraham Lincoln sits to-day the greatest despot this side of China.'
The mistake of Mr. Phillips was this: He confounded the method of
exercising power with the nature of the power exercised. It is the
latter which decides the question of despotism or of freedom. The
methods of the republican governor and of the despot may be, in times of
war _must_ be, for the most part, identical. But the one is,
nevertheless, as truly a republican as the other is a despot. Freedom of
speech, freedom of the press, the right of travel, the writ of _habeas
corpus_ - these insignia of liberty in a people are dispensed with in
despotic Governments, because the ruler chooses to deprive the people of
their benefits, and for that reason only; they were suspended in our
Government because the national safety seemed to demand it, and because
the President, as the accredited executive of the wishes of the people,
fulfilled their clearly indicated will. In the former case it is lordly
authority overriding the necks of the people for personal pride or
power; in the latter, it is the ripe fruit of republican civilization,
which, in times of danger, can with safety and security overleap, for
the moment, the mere forms of law, in order to secure its beneficial
results. They seem to resemble each other; but are as wide apart as
irreligion and that highest religious life which, transcending all
external observances, seems to the mere religious formalist to be
identical with it.

But how is the Executive to ascertain the behest of the people? In
accordance with the modes which they, as a part of their behest,
indicate. But as there are two methods of fulfilling the wishes of the
people, one adapted to the ordinary routine of peaceful times, and
another to the more summary necessities of war, so there are two
methods, calculated for these diverse national states, by which the
Government must discover the will of the people. The slow, deliberate
action of the ballot box and of the legislative body is amply
expeditious for the purposes of undisturbed and tranquil periods. But in
times of rebellion or invasion, the waiting and delay which are often
essential to the prosecution of forms prescribed for undisturbed epochs
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

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 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 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




'I love thee freely, as men strive for right;
I love thee purely, us they turn from praise
I love thee with the passion put to use
In my old griefs, and with my childhood's faith;
I love thee with a love I seemed to lose

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Online LibraryVariousThe Continental Monthly, Vol. 4, No. 4, October, 1863 Devoted to Literature and National Policy → online text (page 1 of 19)