p>The Continental Monthly, Vol. 4, No. 4, October, 1863 / Devoted to Literature and National Policy
THE FREEDOM OF THE PRESS
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.
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