Civil Liberties and Censorship

Civil liberties is a general term that refers to freedoms protecting individuals from arbitrary interference by government. The phrase itself was first used in England around 1644, but the concept goes back further in English law to Magna Carta (the "Great Charter," 1215), a document that King John (1166-1216) was forced to sign by the barons of England that imposed limitations on his powers as monarch. In particular, the king gave up the power to imprison people without a trial, to seize people's lands as he pleased, or to raise taxes without "the common consent of the kingdom" (Magna Carta 1215).

Civil liberties as understood in the twenty-first century includes such freedoms as freedom of speech, freedom of assembly, freedom of religion, the right to bear arms, the right to a speedy and fair trial, and the right of due process. In American law, the Bill of Rights—the first ten amendments to the Constitution, proposed by James Madison in 1789 and ratified by three-quarters of the states in 1791—is considered the foundational document of civil liberties in the United States.

Lincoln's Suspension of Habeas Corpus

The Civil War was the first period in American history in which the scope and extent of civil liberties in the United States became a matter of open disagreement between the executive branch of the federal government (the President) and the judicial branch (the Supreme Court). The dispute was precipitated in 1861 by Lincoln's suspension of habeas corpus, which can be briefly defined as a citizen's right to petition for relief from unlawful detention or imprisonment (of themselves or another person).

To make use of habeas corpus, the petitioner asks for a writ (a legal order issued by a court) of habeas corpus ad subjiciendum, to use the technical legal phrase. The Latin words go back to the Middle Ages and are a command issued in the monarch's name to a lower court or officer holding someone in custody to present that individual before a judge or higher court. Thus habeas corpus is essentially a procedure to examine the legality of someone's detention or imprisonment. Articles 36 and 38 through 40 of the Magna Carta are usually considered to be the foundation of habeas corpus in English law, although the phrase itself was not used until 1305, in the reign of King Edward I (1239-1307). The customary form of words used in American law for a writ of babeas corpus is as follows:

We command you that the body of [person's name], in your custody detained, as it is said, together with the day and cause of his [her] caption and detention, you safely have before Honorable [judge's name and judicial district], within the circuit and district aforesaid, to do and receive all and singular those things which the said judge shall then and there consider of him [her] in this behalf; and have you then and there this writ.

Habeas corpus is mentioned in the Constitution of the United States in Article One, Section 9, also known as the Suspension Clause: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." It was Lincoln's use of the Suspension Clause in 1861 that brought him into conflict with the Supreme Court—in particular, with Chief Justice Roger Taney (1777-1864).

Lincoln suspended habeas corpus in Maryland on April 27, 1861, as a response to riots in the city of Baltimore that broke out when the first Union troops arrived in the city in response to Lincoln's call for volunteers. In addition to the breakdown of public order, Lincoln was concerned that Maryland might secede and join the Confederacy, which would leave the federal capital surrounded by enemy territory. He had also received requests from several Union generals to set up military courts in order to deal with Copperhead Democrats and supporters of the Confederacy living in Union states. Lincoln's order of suspension was carried out by General Winfield Scott:

HEADQUARTERS OF THE ARMY, Washington, April 27, 1861. The undersigned, General-in-Chief of the Army, has received from the President of the United States the following communication: COMMANDING GENERAL ARMY OF THE UNITED STATES:

You are engaged in repressing an insurrection against the laws of the United States. If at any point on or in the vicinity of the military line which is now used between the city of Philadelphia via Perryville, Annapolis City and Annapolis Junction you find resistance which renders it necessary to suspend the writ of habeas corpus for the public safety, you personally or through the officer in command at the point where resistance occurs are authorized to suspend that writ. ABRAHAM LINCOLN.

In accordance with the foregoing warrant the undersigned devolves on Major-General Patterson, commanding the Department of Pennsylvania, Delaware and Maryland; Brigadier-General Butler, commanding the Department of Annapolis, and Colonel Mansfield, commanding the Washington Department, a like authority each within the limits of his command to execute in all proper cases the instructions of the President. WINFIELD SCOTT. (Lincoln 1861a)

In December 1861, Lincoln extended the suspension of habeas corpus to Missouri, addressing his order to Major General Henry Halleck (Lincoln 1861c).

Ex parte Merryman (1861)

Ex parte Merryman is a case that came before Chief Justice Roger Taney in his capacity as a Maryland circuit judge in the early summer of 1861, after Lincoln had suspended habeas corpus in Maryland. Ex parte is a legal term that means "from one party [to the case] only." Among other legal applications, ex parte is traditionally used with the names of petitioners for a writ of habeas corpus.

John Merryman was an officer in the Maryland cavalry who assisted in ejecting a Union general from Baltimore and in blowing up several railroad bridges to prevent the movement of additional Union troops into the city in April 1861. Merryman was seized by Union troops several weeks later and held in Fort McHenry outside Baltimore. He immediately petitioned for a writ of habeas corpus. The following day, Chief Justice Taney, who was sitting as a circuit judge for the Baltimore circuit (Supreme Court justices acted as circuit judges when the Supreme Court was not in session—until 1869, when the practice was abolished), ordered the government to show just cause for Merryman's detention.

When Taney was informed that Lincoln had suspended habeas corpus (a decision that had been kept secret at first), he issued a judicial opinion to the effect that the President acting alone does not have the constitutional authority to suspend the right; only Congress can put the Suspension Clause into effect. The question as to whether only Congress has the authority to suspend habeas corpus, however, has not been definitively decided as of the early 2000s (Rehnquist 2000b). Using President Andrew Jackson's defiance of a former Chief Justice, John Marshall, as precedent, Lincoln simply ignored Taney's opinion that Merryman was illegally confined.

On July 4, however, Lincoln justified his actions before Congress gathered in special session:

Soon after the first call for militia it was considered a duty to authorize the commanding general in proper cases according to his discretion, to suspend the privilege of the writ of habeas corpus…This authority has purposely been exercised but very sparingly. Nevertheless the legality and propriety of what has been done under it are questioned and the attention of the country has been called to the proposition that one who is sworn to 'take care that the laws be faithfully executed' should not himself violate them [but] the whole of the laws which were required to be faithfully executed were being resisted and failing of execution in nearly one-third of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear that by the use of the means necessary to their execution some single law, made in such extreme tenderness of the citizen's liberty that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated? To state the question more directly, are all the laws but one to go unexecuted and the Government itself go to pieces lest that one be violated? (Lincoln Lincoln 1861 b)

Lincoln's suspension of habeas corpus in order to preserve the Union continues to be one of the most controversial executive decisions in American history (Rehnquist 2000a).

Ex parte Milligan (1866)

Ex parte Milligan was another landmark civil liberties case that emerged from the Civil War. Lambdin P. Milligan (1812-1899) was a lawyer and Confederate sympathizer from Indiana who was accused in 1864, along with four other men, of conspiracy to overthrow the government of the United States and conspiracy to aid the Southern rebellion. Part of the plot involved seizing a federal arsenal in order to raid a military camp near Chicago that held Confederate prisoners of war. One of the defendants turned state's evidence against the others, who were sentenced to death by hanging by a military court in the fall of 1864.

The reason why Milligan and his co-defendants had been tried by a military rather than a civil court is that Edwin Stanton had ordered, in his capacity as Secretary of War in 1862, that habeas corpus be suspended for people accused of various crimes even if they were civilians. In addition, Stanton's proclamations ordered such persons to be tried before military commissions rather than civil courts. This provision meant not only that the accused could be detained for long periods of time but also that such procedural rights guaranteed by the Constitution as the right to a jury trial would be denied. Stanton justified his actions on the basis of an old Roman maxim, Inter arma silent leges, which can be loosely translated as "When the guns speak, the [civil] laws must keep quiet."

If Lincoln had not been assassinated in April 1865, it is highly likely that he would have set aside the death sentence imposed on Milligan and the others by the military court (Rehnquist 1996, p. 8). By the time of the Indianapolis treason trials, as they were known, Sherman was completing his march through Georgia, the end of the war was in sight, and the public mood was shifting toward clemency rather than harshness toward those accused of treason.

Andrew Johnson, who became President on Lincoln's death, intended to have the death sentence imposed in 1864 carried out in May 1865. At this point, however, Milligan and the other defendants petitioned the federal court in Indianapolis for a writ of habeas corpus. In January 1866, the case came before the Supreme Court under the title of Ex parte Milligan. The defendants were ably represented by a future president, James A. Garfield, who argued that even in wartime civilians should not be tried by military courts as long as the civil courts are open for business. The majority opinion of the Court contained a famous passage:

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority. (Ex parte Milligan, 71 U.S. [4 Wall.] 2, 120-121, 1866)

Censorship of the Press in the North

Censorship in general refers to the examination of letters, print matter, or other media in order to remove materials considered morally harmful or politically sensitive. The term comes from the period of the Roman Republic (443-22 bc), in which the censors were magistrates of high rank responsible for taking a periodic census and for supervising public morality.

The American Civil War was the first conflict in the nation's history in which some censorship of the press in both North and South was justified on the grounds of military necessity. This necessity in turn was the byproduct of changes in technology and communications which had led to the rapid growth of popular newspapers in the 1830s and 1840s. The invention of the electric telegraph in 1838 by Samuel F. B. Morse (who gave his name to the Morse code alphabet devised by his assistant, Alfred Vail) made it feasible—and profitable— for newspaper owners to hire reporters and correspondents in distant cities to write and transmit local news stories via telegrams. By 1858 the construction of a transatlantic telegraph cable made it possible to set up news bureaus overseas, and by 1861 there was a telegraph line from New York to San Francisco, part of a 50,000-mile network crisscrossing the United States (Harris 1999).

In addition to the increased speed of news transmission, the use of woodcut illustrations—direct reproduction of daguerrotypes or photographs was not possible with the printing presses of the 1860s—greatly increased the visual appeal of American newspapers. As the number of subscriptions rose, newspapers began to pay their top-level employees handsome salaries; by 1861, one upper-level manager at the New York Herald was paid more than the members of Lincoln's cabinet (Harris 1999, p. 27). The fact that newspapers had become a major industry helps to explain why censorship of the press during the Civil War was a touchy issue. In addition, the nation had no precedents to guide either the press or the government in handling such questions as reporting on troop recruitment or movement (Sears 1994, p. 17). Newspaper correspondents had little experience, let alone training, in discriminating between genuine news and "chin music"—gossip or local hearsay (Sears 1994, p. 18).

There were two major considerations that guided Northern officials in their censorship of the press. The first was the possibility that reporters would assist the enemy by revealing secret military information. One motivation for so doing was financial rather than political, however; some reporters hoped to boost their newspaper's subscription base (and their own salaries) by printing information before their rivals could obtain it. The editor of Harper's Weekly commented on economic as well as political motives for publishing military secrets in the spring of 1862:

A censorship of the press is one of the temporary inconveniences which the present unexampled rebellion has involved. At the outbreak of the war there were throughout the North journals conducted by unprincipled men which were prepared deliberately to afford aid and comfort to the enemy. Ever since then there have been journals which, without the excuse of rebel sympathies, have been willing to betray strategical secrets, in order to outstrip their rivals in the publication of military and naval intelligence. The only means of checking the one and the other was a press censorship, and it is to the credit of Mr. LINCOLN that he did not hesitate to establish it. (May 17, 1862)

A second potential problem was the effect on public morale, were the press to expose some of the government's dirty laundry, so to speak. This concern was not groundless; one of the earliest European war correspondents, William Howard Russell (1821-1907) of the London Times, was credited with forcing the resignation of the British government during the Crimean War (1853-1856) by his candid accounts of the poor training and leadership of the British troops sent to the Crimea. As it turned out, the Times sent Russell to cover the opening months of the American Civil War in 1861. When Russell's account of the Union defeat at Bull Run as "a miserable, causeless panic" accompanied by "scandalous behavior" reached the Northern public, the British reporter received threatening letters. His press credentials were revoked in 1862 and he returned to London shortly afterward (Sears 1994, p. 18).

Newspaper censorship in the North passed through several stages. At the beginning of the war, General-in-Chief Winfield Scott declared that the Washington telegraph office would no longer carry dispatches related to military information that had not first been approved by the commanding generals or admirals. The Confederate government in Richmond took the same step. Scott did not, however, impose direct controls on the reporters' mail or on what they sent back to their editors.

The General and the Journalist

Although relations between military commanders and newspaper reporters during the Civil War could be disharmonious, few generals were as hostile to the press as William T. Sherman. Newspaper correspondents believed that the First Amendment gave them complete freedom to report whatever they wished; Sherman, on the other hand, was infuriated when newspapers printed Union orders of battle and other sensitive military information prior to combat. In addition to giving away troop movements and positions, some reporters helped to spread rumors that Sherman was mentally ill. A reporter for the New York Tribune once remarked that "being a cat in hell without claws is nothing to [being] a reporter in General Sherman's army" (Brown 2004).

On one occasion, a field correspondent for the New York Herald named Thomas Knox published an account of the Union defeat at Chickasaw Bluffs in 1862 in direct defiance of Sherman's orders calling for secrecy. Upon receiving a copy of Knox's article from a Union naval officer, Sherman responded:

The spirit of anarchy seems deep at work at the North, more alarming than the batteries that shell us from the opposite shore. I am going to have the correspondent of the New York Herald tried by court-martial as a spy, not that I want the fellow shot, but because I want to establish the principle that such people cannot attend our armies, in violation of orders, and defy us, publishing their garbled statements defaming officers who are doing their best, and giving information to the enemy. You of the Navy can control all who sail under your flag, whilst we of the Army are almost compelled to carry along in our midst a class of men who on government transports usurp the best accommodations on the boats…and report their limited and tainted observations as the history of events they neither see nor comprehend. (U.S. Naval War Records 1911, p. 234)

Knox was duly court-martialed and sentenced to banishment from the Union's western theater of operations. He and his newspaper appealed to President Lincoln, who offered to revoke the court's sentence, provided that Grant, Sherman's superior, was willing to allow Knox to return to Union headquarters near Vicksburg. In a letter to Knox, Grant refused permission "unless General Sherman first gives his consent to your remaining" (Bowman 1865, p. 450). Knox then sent Lincoln and Grant's letters to Sherman, along with a written request for permission to remain. Sherman's reply was forthright:

After having enunciated to me that newspaper correspondents were a fraternity bound together by a common interest that must write down all who stood in their way, and that you had to supply the public demand for news, true if possible, but false if your interests demanded it, I cannot be privy to a tacit acknowledgement of the principle.

Come with sword or musket in your hand, prepared to share with us our fate in sunshine and storm, in prosperity and adversity, in plenty and scarcity, and I will welcome you as a brother and associate; but come as you now do, expecting me to ally the reputation and honor of my country and my fellow soldiers with you, as the representative of the press, which you yourself say makes so slight a difference between truth and falsehood, and my answer is, NEVER. (U.S. Congressional Serial Set 1887, p. 895)

Knox left the Vicksburg theater immediately and never returned.

rebecca j. frey

BIBLIOGRAPHY

Bowman, Samuel Millard, and Richard Biddle Irwin. Sherman and His Campaigns: A Military Biography. New York: Charles B. Richardson, 1865.

Brown, Dale E. "Sherman and the Reporter" Parameters (Autumn 2004).

U.S. Congressional Serial Set. Miscellaneous Documents. Washington, DC: United States Government Printing Office, 1887.

U.S. Naval War Records. Official Records of the Union and Confederate Navies in the War of the Rebellion. Series 1, vol. 24. January 1May 17, 1863. Washington, DC: Government Printing Office, 1911.

Edwin Stanton (1814-1869), who became Lincoln's Secretary of War in January 1862, moved government censorship of the press to a higher level by putting all telegraph lines in Union territory, not just those coming out of Washington, under the direct control of the War Department. Moreover, war correspondents were required to sign formal pledges not to publish any material on restricted topics. Stanton was criticized heavily by the New York Times and other Northern newspapers for his gag orders; in addition, the news blackout undermined the administration's credibility by fueling the growth of wild rumors about plots to overthrow the government in Washington and similar conspiracy theories (Sears 1994, p. 21)

Military Censorship of Journalists

The third stage of press censorship in the North was a series of decisions taken by individual Union commanders to ban newspaper correspondents from their camps. Although General Sherman's hostility to "the set of dirty newspaper scribblers who have the impudence of Satan" is well known, other generals were equally distrustful of reporters (Sears 1994, p. 16).

General Henry Halleck, the senior commander of the Union forces at the Battle of Shiloh, set the precedent of banning newspaper reporters—these "unauthorized hangers-on"—from his camp on May 13, 1862 (Sears 1994, p. 22). And although Sherman's 1863 court martial of Thomas Knox, a reporter for the New York Herald, is the best-known instance of the army's suspicious attitude toward the press (Brown 2004), there were other instances of Union generals getting even with reporters who aroused their anger. In 1864, General George Meade not only expelled Edward Crapsey, a correspondent for the Philadelphia Inquirer, from his camp, but had the unfortunate reporter mounted on a mule and paraded around the camp wearing a placard that read "Libeler of the Press" while the regimental band played the "Rogue's March" (Finney 2003).

Censorship of the Press in the Confederacy

Most of the conflicts between freedom of the press and strategic military considerations were fought out in the Northern newspapers. There were two reasons for the relatively low level of press censorship in the South: the impact of the war on the size and frequency of publication of Southern newspapers; and consistent support for the Confederate government on the part of newspaper editors. With regard to the first factor, the South had only half as many newspapers as the North in 1861 and only a quarter of the Northern papers' circulation (Harris 1999, p. 12). Several major Southern newspapers ceased publication entirely during the war. The others dwindled from four to two pages per issue as a result of shortages of reporters as well as newsprint, as the South drafted more and more categories of able-bodied men for military service (Sears 1994, p. 19).

With regard to the second factor, few Southern editors took an oppositional stance toward the government in Richmond. Their support stood in sharp contrast to the adversarial attitude of many Northern newspapers toward the Lincoln administration, particularly such stridently Democratic newspapers as the Chicago Times, the Cincinnati Enquirer, and the New York World (Harris 1999, p. 22). As an example of the generally cooperative position of the Southern press, the editor of the Charleston (SC) Mercury sent the paper's correspondent in Richmond the following instructions in early 1862: "Be therefore, I suggest, as amiable as consistent with truth… [and present] as much as possible of the bright side of things" (Sears 1994, p. 19).

BIBLIOGRAPHY

Brown, Dale E. "Sherman and the Reporter." Parameters, U.S. Army War College Quarterly, Autumn 2004, inside back cover.

"The Censorship of the Press." Harper's Weekly, May 17, 1862, p. 306.

Ex parte Milligan, 71 U.S. 2 (1866). Available online at http://caselaw.lp.findlaw.com/scripts/.

Finney, Torin R. "Reporting the American Civil War." First posted 2003; available online at The Bohemian Brigade [Civil War re-enactors who portray newspaper correspondents], http://www.bohemianbrigade.com/.

Harris, Brayton. Blue and Gray in Black and White: Newspapers in the Civil War. Washington, DC: Brassey's, 1999.

Lincoln, Abraham. Message to Congress, July 4, 1861. In The Official Records of the Union and Confederate Armies, Series IV, I, pp. 311–321. Washington, DC: Government Printing Office, 1880-1901. Available online at http://facweb.furman.edu/~benson/docs/lincoln.htm.

Lincoln, Abraham. Suspension of the writ of habeas corpus relating to the events in Baltimore. Washington, DC: Headquarters of the Army, April 27, 1861. Available online at http://www.civilwarhome.com/.

Lincoln, Abraham. Suspension of the writ of habeas corpus relating to the events in Missouri. Washington, DC: Headquarters of the Army, December 2, 1861. Available online at http://www.civilwarhome.com/.

Magna Carta (1215). Modern English translation with annotations available online at Sources of English Constitutional Law, http://www.constitution.org/.

Rehnquist, William H. All the Laws but One: Civil Liberties in Wartime. New York: Random House, 2000.

Rehnquist, William H. "Civil Liberty and the Civil War: The Indianapolis Treason Trials." Remarks delivered at the Indiana University School of Law-Bloomington, October 28, 1996. Available online at http://social.chass.ncsu.edu/.

Rehnquist, William H. Remarks at the 100th anniversary celebration of the Norfolk and Portsmouth Bar Association, Norfolk, Virginia, May 3, 2000. Available online at http://www.supremecourtus.gov/.

Sears, Stephen W. "The First News Blackout." Civil War Chronicles (Winter 1994): 16-23.

Taney, Roger B. Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861). Available online at http://www.tourolaw.edu/.

Rebecca J. Frey