The purpose of this paper is to explore ways in which the Lincoln administration suppressed certain freedoms during the Civil War. ⁽¹⁾ During the war many tensions developed when civilians demanded protection from arbitrary arrest and the right to protest the conduct of the war. These demands ran headlong into the suspension of habeascorpus, which the government often deemed necessary to keep the peace and to protect is military operations. At the same time, the President was often conflicted by these competing claims. His anxiety was expressed in letters to friends and in his reluctance to apply the full powers of the presidency on behalf of suppression. Lincoln recognized that an individual's protection from arbitrary arrest is closely tied to his/her right to free speech. He knew that the suspension of habeas corpus made it easier to enforce restrictions. And he knew that the court of jurisdiction plays a large part in determining how and what expression will be curtailed. Military tribunals tend to be much more severe than civilian tribunals. Thus, tension would be exacerbated by jurisdictional disputes throughout this crisis.

This study provides an opportunity to examine the development of presidential war powers, particularly the suspension of habeas corpus, as they affected free speech, press, and assembly. It also supplies examples of rhetoric bordering on a clear and present danger in war time. It provides a close look at military and civil tribunals as they functioned to diminish and/or protect free speech during this crisis. Finally, it establishes a theme of this book: the Supreme Court is more likely to uphold restrictive actions, orders, and legislation in war than in time of peace.

The Writ of Habeas Corpus

In a letter to Erastus Corning on June 12, 1863, Lincoln drew a clear picture of the dilemma he faced. With his usual eloquence, he makes clear the difficult decision he faces:

Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert? . . . I think that in such a case, to silence the agitator, and save the boy, is not only constitutional, but, withal, a great mercy. ⁽²⁾

Lincoln's dilemma had a significant impact on First Amendment issues. ⁽³⁾ The United States Constitution specifies that, "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the pubic safety may require it." ⁽⁴⁾ The Constitution is clear in indicating that suspension is a possibility in specific cases, but vague as to who determines when public safety is in danger. ⁽⁵⁾ Clearly, it is the president's duty to invoke the suspension, but is it also his duty to determine when an invasion or rebellion threatens the public safety? Or is that the job of the Congress?

In Ex parte Milligan, decided after the war was over in April, 1866, David Dudley Field gave the following opinion:

Has the President in time of war by his own mere will and judgement of the exigency, the power to bring before the military officers any man or woman in the land, to be there subject to trial and punishment, even to death? If the President has this awful power, whence does he derive it? From the Constitution? He can exercise no authority whatever, but that which the Constitution of the country gives him. Beyond it, he has no more power than any other citizen. Our system knows no authority beyond and above the law. ⁽⁶⁾

Two issues emerge: first, does Congress or the President decide when rebellion or invasion are substantiated? Second, does Congress or the President delegate the power in such an instance? ⁽⁷⁾

During the Civil War, President Lincoln suspended the writ of habeascorpus three times: first, on April 27, 1861, again on September 24, 1862, a few days after signing the Emancipation Proclamation, and finally on September 15, 1863. Although there is no exact record of the total number arrested during the Civil War, the Commissary General of prisoners listed 13,535 citizens arrested from February 1862 to April 1865. It should come as no surprise then that freedom from arbitrary arrest became the most important constitutional issue in the early part of the Civil War. This freedom was limited by the fact that the majority of the loyal North, both Democrats and Republicans, believed that secession was not a constitutional right and that a rebellion was underway. That elevated constitutional issues to paramount concern. Thus, these suspensions of rights enhanced the controversy regarding the constitutionality and amount of power allotted to the President. They also encouraged such government agencies as the Post Office to restrict free press by confiscating controversial issues of newspapers and other publications. These suspensions may have encouraged citizens to take the law into their own hands such as in the cases where they destroyed Copperhead presses. We now turn to an examination of these suspensions of the writ of habeascorpus in order to assess their First Amendment implications, their Constitutional justifications, and their impact on citizens and the press.

Suspension of the Writ

On April 14, 1861, Fort Sumpter fell to the Confederacy. On April 27, 1861, President Lincoln gave the Commanding General of the U.S. Army, Winfield Scott, the following instructions in order to prevent secession-minded Marylanders from interfering with the Capital's communication with the North:

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 and the City of Washington, 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 the resistance occurs, are authorized to suspend that writ. ⁽⁸⁾

The public had forced the pro-Union governor Thomas Hicks to call the legislature into session. He warned the President that the legislature was filled with Confederate sympathizers. ⁽⁹⁾ Lincoln was reluctant to act as a letter to General Winfield Scott dated April 25, 1861 indicates. In it Lincoln discouraged ordering the arrest of members of the Maryland legislature:

The Maryland Legislature assembles tomorrow at Annapolis; and, not improbably, will take action to arm the people of that State against the United States . . . they have a clearly legal right to assemble; and, we can not know in advance, that their action will not be lawful, and peaceful . . . we can not permanently prevent their action . . . we can not long hold them as prisoners . . . I therefore conclude that it is only left to the commanding General to watch, and await their action, which, if it shall be to arm their people against the United States, he is to adopt the most prompt, and efficient means to counteract, even, if necessary, to the bombardment of their cities - and in the extremist necessity, the suspension of the writ of habeas corpus. ⁽¹⁰⁾

The crisis quickly took and turn for the worst and the President filled the Maryland's capital with federal troops and military authorities. They made several arrests including the Baltimore marshal of police George P. Kane, Baltimore Mayor William Brown, and, on September 17, nine members of the Maryland legislature and the chief clerk of the Maryland Senate. The members of the Maryland legislature were arrested for fear that, if allowed to attend the legislative session, they would vote for secession from the Union.

For all of his handwringing, Lincoln believed it was better to save the Union than live up to its guarantees. ⁽¹¹⁾ In 1862 in a public letter to Horace Greely, he went so far as to say, "If I could save the Union without freeing any slave I would do it; and if I could save it by freeing all the slaves I would do it." ⁽¹²⁾ There is perhaps no worse example of the restriction of free speech in the entire Civil War than this one. Duly elected members of a state legislature were prevented from assembling and speaking on a critical issue. Along with free speech and assembly, states' rights were crushed in this effort to preserve the Union. It was clear from this moment what hierarchy of values Lincoln held dear.

Ex parte Merryman

Lincoln's assertion of power was not to go unchallenged. Less than a month after his suspension of the writ, a case began wending its way through the courts. The Merryman case was brought to bar to determine whether the President or the Congress had the power to suspend the writ of habeascorpus. It began on May 25, 1861, when John Merryman, a southern sympathizer and secessionist from Maryland, was taken into military custody. He immediately asked to be released under a writ of habeascorpus. In one of the oddities of history, the Chief Justice of the Supreme Court Roger B. Taney, a Democrat appointed by President Jackson, sat in judgment on the case as the circuit judge. Taney had penned the infamous Dred Scott decision of 1857 which Lincoln had consistently attacked. Now Taney and Lincoln crossed swords again.

In arguing for the President's power to suspend the writ, Attorney General Bates contended that the three great branches of the Government are coordinate; the executive cannot rightly be subjected to the judiciary. The President, he maintained, is in a peculiar manner their preserver and protector as the defender of the Constitution. ⁽¹³⁾ Moreover, it is the President's duty to put down a rebellion because the courts are too weak to do so. Bates pointed out that the power of the Presidency does open the way for possible abuse; however, it is just as true that a legislature may be factious or a court corrupt. The President cannot be required to appear before a judge to answer for his official acts because the court would be usurping the authority of Executive Branch. ⁽¹⁴⁾ Bates contended that for any breach of trust the President is answerable before the high court of impeachment and no other tribunal.

In filing his opinion, Taney responded that the President had no lawful power to issue such an order and that a writ of habeascorpus should preside. In Ex parte Merryman Taney claimed that only Congress could suspend the privilege of the writ and that the President, though sworn to "take care that the laws be faithfully executed," had broken the laws himself. In a clever rhetorical ploy, Taney used a hermeneutic argument invoking the rule of construction according to context. He pointed out that the provision regarding habeascorpus appears in that portion of the Constitution which pertains to legislative powers; therefore, its suspension was a legislative, not executive prerogative. Taney argued further that the military authorities should reveal the day and cause of the capture of Merryman and explain the reasons for his detention of Merryman. ⁽¹⁵⁾ Such requirements were, of course, usual in civil affairs, but not in military ones.

In a message to Congress on July 4, 1861, Lincoln answered Taney. He began by pointing out that he was reluctant to suspend the writ, but that dire threats to the nation in general and the military in particular required such action:

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 attention of the country has been called to proposition that one who is sworn to "take care that the laws be faithfully executed" should not himself violate them. Of course some consideration was given to the questions of power and propriety before this matter was acted upon. The whole of the laws which were required to be faithfully executed were being resisted . . . 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, are in such extreme tenderness of the citizens 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? . . . But it was not believed that this question was presented. It was not believed that any law was violated. The provision of the Constitution . . . is equivalent to a provision - is a provision - that such privilege may be suspended when, in cases of rebellion or invasion, the public safety does require it. It was decided that we have a case of rebellion . . . ⁽¹⁶⁾

As with Dred Scott, Taney stuck to the letter of the law and read the Constitution strictly. Lincoln sought refuge in a higher law: the law of survival. He gave his defenders grist for their propaganda mills by claiming that his suspension of the privilege of the writ of habeascorpus did not violate any law. According to Lincoln, the Constitution was "silent as to . . . who, is to exercise the power" of suspension. ⁽¹⁷⁾ He would not release Merryman, even in the face of Taney's writ.

Horace Binney, a Philadelphia lawyer, came to the defense of the President through his widely circulated pamphlet, The Privilege of the Writ of Habeas Corpus under the Constitution. ⁽¹⁸⁾ In the pamphlet Binney attacked Judge Taney's arguments. The controversy excited lawyers and politicians, resulting in a paper war consisting of more than 40 published answers to Binney's pamphlet.

In the midst of this debate, Lincoln consistently argued that his paramount duty as chief executive was to preserve the integrity of the Government. ⁽¹⁹⁾ On this depended the livelihood of the whole Constitution. In Lincoln's view, there had been no violation of the Constitution, since the Constitution permits suspension of habeascorpus in specific cases and does not specify what branch of the government is to exercise the suspending power. ⁽²⁰⁾ As the provision was plainly made for an emergency, he argued, the natural inference is that the President should use his discretion. Lincoln believed that the danger should not be permitted to run its course until Congress could be called together. ⁽²¹⁾

This was not the first instance in which Lincoln would place the survival of the Union over the need to proceed in a constitutional manner. As early as May 4, 1861, the President enlarged the army by calling for volunteers without any congressional authorization. And yet, Lincoln's ambivalence on this issue emerged again in another letter to Erastus Corning dated June 12, 1863. While the letter serves as a defense for his suspension of the privilege in the face of sharp Democratic criticism, speaking of "The Rebellion" Lincoln raises the issue of freedom of expression:

Their sympathizers pervaded all departments of the Government and nearly all communities of the people . . . under the cover of "liberty of speech," "liberty of the press," and "habeas corpus," they hoped to keep on foot among us a most efficient corps of spies, informers, suppliers, and aiders and abettors of their cause in a thousand ways . . . Or, if as has happened, the Executive should suspend the writ, without ruinous waste of time, instances of arresting innocent persons might occur, as are always likely to occur in such cases; and then a clamor could be raised in regard to this, which might be, at least, of some service to the insurgent cause . . . Yet, thoroughly imbued with a reverence for the guaranteed rights of individuals, I was slow to adopt the strong measures which by degrees I have been forced to regard as being within the exceptions of the Constitution, and as indispensable to the public safety . . . the time [is] not unlikely to come when I shall be blamed for having made too few arrests rather than too many . . . Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert? . . . I think that in such a case, to silence the agitator, and save the boy, is not only constitutional, but, withal, a great mercy. ⁽²²⁾

Since Lincoln controlled the army for the most part, his position prevailed during the war. In fact some noted historian describe it as dictatorial. ⁽²³⁾ It was not until the war was over that the courts undid the war rulings.

Military commissions were often the arbiters of cases that came forward due to the suspension of the writ. Two important Supreme Court cases, Vallandigham and Milligan illustrate the effect that war had on judicial decisions and free speech. ⁽²⁴⁾ To understand them, we need to know that the general rule in common law is that in a section of enemy territory within military occupation, or in a region under martial law, the use of a military commission for the trial of non-military persons who have committed offenses of a military character is sanctioned. Where there is no martial law, and where the ordinary civil courts are unimpeded, military tribunals have no proper function to perform in the trial of civilians, especially for offenses outside the military code. ⁽²⁵⁾ In explaining the use of military commissions during the Civil War, Judge Advocate General Holt stated that they originated in the necessities of the rebellion, and were indispensable for the punishment of crimes in regions where the courts ceased to exist and in cases of which the local criminal courts could not take cognizance. Such commissions were powerful, he said, because they were unencumbered by technicalities and because their process was executed by the military power of the United States. ⁽²⁶⁾

In Missouri, for example, martial law was in force along railroad and telegraph lines. ⁽²⁷⁾ As a result, numerous cases arose in that state involving civilians who were tried for such offenses as bridge burning, destruction of railroads, and destruction of telegraph lines. In cases where civilians furnished information to the enemy, or engaged in sniping, trials by military commissions for violations of the laws of war occurred. ⁽²⁸⁾ The majority of cases brought before the commissions were of this sort. ⁽²⁹⁾ And few caused any protest.

However, widespread criticism arose where citizens were subjected to military tribunals in regions remote from military operations and not under martial law. ⁽³⁰⁾ Much of the criticism was based on free speech suspensions stemming from Lincoln's decision in February of 1862 to transfer control over internal security matters from Secretary of State Seward to Secretary of War Stanton. Furthermore, by order of August 8, 1862, United States marshals and local magistrates were authorized to imprison persons who discouraged enlistments or engaged in other disloyal practices. Immediate report of such arrests was to be made to the Judge Advocate General so that the prisoners could be tried by military commission. ⁽³¹⁾

The legality of the broad use of military commissions changed with two contradictory Supreme Court cases: the Vallandigham case, decided by the Supreme Court in February, 1864, and the Milligan case, which reversed Vallandigham, decided in 1866. The same Court that upheld the authority of a military commission in 1864 declared a similar commission's jurisdiction to be limited in an analogous case two years later. This difference may well have been that at the time of Milligan, the country was no longer at war.

The Vallandigham Case

Northern confidence was slipping badly in 1862 as the army continued to perform badly particularly in Virginia. The Union's continued misfortune not only undercut Lincoln's support but gave hope to a group that called itself the Peace Democrats. They sought a national convention including the South which would bring an end to the war. Some formed secret societies such as the Sons of Liberty and the Knights of the Golden Circle, which engaged in "midnight raids and barn burnings." ⁽³²⁾ They were quickly labeled the Copperheads. These were mainly Northern Democrats who sympathized with the South. Many in the group were anti-Black and xenophobic. Opposition to the Copperheads was strong but geographically spotty until it was discovered that the Knights of the Golden Circle was agitating for midwesterners to join the confederacy or to form a confederacy of their own in the West. Suddenly, paranoia swept the North. The search for subversives rivaled the Federalist hunt for Jacobins during the Alien and Sedition crisis.

The most prominent Copperhead was Congressman Clement L. Vallandigham of Ohio. He steadfastly opposed emancipation of Blacks and argued that the war was needless. In fact, the division in the Congress in 1862 over war policy split almost perfectly along party lines and hurt Republicans in the 1862 elections. In January of 1863, Vallandigham capitalized on the growing dissent when he said, "It is the desire of my heart to restore the Union, the Federal Union as it was forty years ago. . . . I see nothing before us but universal political and social revolution, anarchy and bloodshed compared with which the Reign of Terror in France was a merciful visitation." ⁽³³⁾

On April 19, 1863, Major General Ambrose E. Burnside, in command of the "Department of the Ohio," issued "General Orders No. 38." These orders declared that persons committing acts for the benefit of the enemy would be executed as spies or traitors. ⁽³⁴⁾ The order declared further that "the habit of declaring sympathies for the enemy will no longer be tolerated" and that, "Persons committing such offenses will be at once arrested, with a view to being tried or sent beyond our lines into the lines of their friends." "Declaring sympathies" included speeches, pamphlets, and editorials that supported the confederacy and/or opposed Lincoln's policies. Clearly free speech was chilled by such orders and large constitutional issues loomed. Would the courts uphold such a clear limitation on the First Amendment rights of its citizens?

In the Spring of 1863, Vallandigham opened his campaign to become governor of Ohio by challenging the new orders. In fact, he saw Burnside's order as an opportunity to secure the Democratic nomination. So on May 1, 1863, he gave an address that was published throughout Ohio, particularly southern Ohio where loyalties to the South were high. ⁽³⁵⁾ He specifically attacked the Emancipation Proclamation, signed by Lincoln only after the North had won the battle of Antietam, and warned of the collapse of American institutions. ⁽³⁶⁾ He attack the draft and Lincoln's suspension of habeascorpus. He said "King Lincoln" should be thrown from office and that the North should stop fighting the war. He called for a peace conference to restore the Old Union even if that meant excluding New England. The Cincinnati Enquirer which had consistently warned of "negroes" migrating north under emancipation, supported Vallandigham's assertions.

General Burnside, who had been moved from Commander of the Army of the Potomac to Commander of the Department of Ohio, ordered the arrest of Vallandigham for treason. In the early morning hours of May 5 in Dayton, federal troops broke into Vallandigham's home, arrested him and then incarcerated in Cincinnati. ⁽³⁷⁾ Burnside then brought Vallandigham to trial before a military commission charging him with:

publicly expressing, in violation of General Orders, No. 38 . . . his sympathies for those in arms against the . . . United States, declaring disloyal . . . opinions with the object . . . of weakening the power of the Government . . . to suppress an unlawful rebellion. ⁽³⁸⁾

Vallandigham had a large group of supporters, particularly politicians from the southern sections of Illinois, Missouri, Ohio, and Indiana. The trial was held against the backdrop of massive disdain for the Emancipation Proclamation and Copperhead newspapers calling for desertions from the army and navy.

Vallandigham was convicted and ordered to be imprisoned in Boston for the duration of the war. He then applied to Judge Leavitt of the United States Circuit Court at Cincinnati, for a writ of habeascorpus. It was here that the question as to a judicial review of the military proceedings arose. In his reply, Judge Leavitt refused the writ and the case was brought up to the Supreme Court of the United States on motion for certiorari to review the sentence of the military commission.

At the trial, G. E. Pugh, arguing for Vallandigham, contended that the jurisdiction of a Military Commission does not extend to the case of a citizen, and that the court had authority to issue a writ of certiorari in the present case. Vallandigham denied the jurisdiction of the Military Commission and refused to plead to the charge. After private consultation, the members of the Commission, directed the Judge-Advocate to enter a plea of not guilty, and to proceed with the trial, with an allowance to the petitioner to call witnesses to rebut the evidence which might be introduced against him to establish the charge. ⁽³⁹⁾

At the conclusion of the proceedings Vallandigham read a statement to the Commission in which he declared that he had been arrested without due process of law, without a warrant from any judicial officer, that he was then in a military prison and had been served with a charge and specification, as in court-martial or military commission, that he was not either a member of the land or naval forces of the United States, not in the militia in the actual service of the United States and, therefore, not triable for any cause by any such court. Vallandigham also alleged that the offense for which he was charged was "not known to the Constitution of the United States, nor to any law thereof;" that they were words spoken to the people of Ohio, in an open and public political meeting, lawfully and peaceably assembled under the Constitution, that they were words of criticism upon the policy and public servants of the people, by which policy it was alleged that the welfare of the country was not promoted; that they were used as an appeal to the people to change that policy, not by force, but by free elections and the ballot box; that it is not pretended that he counseled disobedience to the Constitution or resistance to the law or lawful authority.

The Supreme Court refused to review the proceedings of the military commission. Among the many reasons provided by the court for denying a writ of certiorari was that the case was not within the letter or spirit of the grants of appellate jurisdiction to the Supreme Court. The Court had no appellate jurisdiction to revise the proceedings of tribunals acting "under or by color of the authority of the United States," but which "do not exercise any part of the judicial power of the United States, except when the same is expressly given by special Act of Congress." As a result the Court contended that a military commission is not a court, within the meaning of the 14th section of the Judiciary Act of 1789. Therefore, there is, "no jurisdiction in this court to issue a writ of habeas corpus ad subjiciendum, to review or reverse, or the writ of certiorari to revise the proceedings of a military commission."

Vallandigham's supporters were infuriated. Governor Seymour of New York said the ruling "establishes military despotism. . . . If it is upheld our liberties are overthrown." ⁽⁴⁰⁾ Democrats in Ohio immediately nominated Vallandigham for Governor in absentia.

In a letter to General Burnside Lincoln explained that:

all the Cabinet regretted the necessity of arresting for instance Vallandigham, some perhaps doubting that there was a real necessity for it - but being done all are for seeing you through it. ⁽⁴¹⁾

On May 19, 1863, the President confounded his critics by commuting Vallandigham's sentence and exiling him to the South. His supporters wrote a letter protesting Lincoln's orders. The letter considered Lincoln's "assumption of the right to suspend all the constitutional guarantees of personal liberty, and even of the freedom of speech and of the press" a "startling" thing, and declared that by such a claim to power the dominion of the President would not only be "absolute over the rights of individuals, but equally so over the other departments of the Government." It added:

Surely it is not necessary to subvert free government in this country in order to put down the rebellion, and it cannot be done under the pretense of putting down the rebellion. Indeed it is plain that your Administration has been . . . greatly weakened by the assumption of power not delegated in the Constitution. ⁽⁴²⁾

Nonetheless, the President's decision was widely believed to derive from his respect for First Amendment rights.

The Democratic party launched a major campaign against Lincoln claiming he had become a "military despot." ⁽⁴³⁾ Governor Seymour claimed that the war was now being fought to destroy democracy in the North as well as to put down rebellion in the South. Because Seymour was known as a man of character, his speech had wide impact damaging the President's hopes for re-election.

Thus, on June 12, Lincoln responded to Seymour's charges with a masterful public letter of his own. It was widely read and claimed in part:

Vallandigham was, by a military commander, seized and tried 'for no other reason than words addressed to a public meeting, in criticism of the course of the Administration, and in condemnation of the Military orders of the General'. . . [Vallandigham] avows his hostility to the War on the part of the Union; and his arrest was made because he was laboring, with some effect, to prevent the raising of troops; to encourage desertions from the army; and to leave the Rebellion without an adequate military force to suppress it. He was not arrested because he was damaging the political prospects of the Administration, or the personal interests of the Commanding General, but because he was damaging the Army, upon the existence and vigor of which the life of the Nation depends . . . I have learned that many people approve the course taken with Mr. Vallandigham, while I have not heard of a single one condemning it . . . And yet, let me say that, in my own discretion, I do not know whether I would have ordered the arrest of Mr. Vallandigham . . . I hold that, as a general rule, the commander in the field is the better judge of the necessity in any particular case. Of course I must practice a general directory and revisory power in the matter . . . it gave me pain when I learned that Mr. Vallandigham had been arrested -- that is, I was pained that there should have seemed to be a necessity for arresting him - and that it will afford me great pleasure to discharge him so soon as I can, by any means, believe the public safety will not suffer by it. ⁽⁴⁴⁾

A delegation of important Ohio Democrats came to Washington in late June to implore the President to release Vallandigham from his sentence of exile. ⁽⁴⁵⁾ Lincoln turned the tables on them by presenting them with clever dilemma. He said he would release Vallandigham if the delegation would agree to three propositions: 1) that a rebellion exists aimed at destroying the "National Union" and that in "your opinion" an army and navy are essential to suppressing it; 2) that no member of the delegation will do anything to hinder the military or encourage others to hinder it; 3) that members of the delegation will do all they can while the rebellion goes on to see the military is paid, fed, clad and supported. ⁽⁴⁶⁾ If the delegation agreed to the propositions, they handed the President a justification for his actions and contradicted their own political followers. If they opposed, they would appear seditious. After an ineffectual response, the delegation returned to Ohio.

In February, 1864, Lincoln was vindicated when the United States Supreme Court in Ex parte Vallandigham ruled that it could not "review . . . the proceedings of a military commission." Thus, a Congressman could be incarcerated for threatening a nation at war and for questioning a president's judgment. As for Vallandigham, he escaped his exile on blockade runner and made for Canada. He tried to encourage his supporters to rally round his candidacy for governor of Ohio but lost the election by 100,000 votes as Republicans staged a major comeback in that year's elections. Vallandigham then became a conduit for Confederate funds by organizing the Sons of Liberty, a group that was quickly infiltrated by government agents. The agents supplied Republicans with accounts of conspiratorial treason which were repeated in speech after speech during the elections of 1864. Vallandigham later became the subject of Edward Hale's famous story, "The Man without a Country."

The Milligan Case

Lambdin P. Milligan was arrested on October 5, 1864, by order of General Hovey, in command at Indianapolis; he brought Milligan before a military commission on charges of 1) conspiring against the government of the United States; 2) affording aid and comfort to the Rebellion against the authorities of the United States; 3) inciting an insurrection; 4) disloyal practices; 5) violation of the laws of war. ⁽⁴⁷⁾ Milligan, along with others, was a suspected member of Vallandigham's secret anti-war society, the Sons of Liberty. Milligan's threat to the Union would appear on the surface to be much greater than Vallandigham's and have much less to do with First Amendment issues. However, since the case would reverse Vallandigham, it is important that we consider it.

The military commission sentenced Milligan to be hanged on May 19, 1865. Milligan petitioned the United States Circuit Court for a writ of habeascorpus. The controversy over Congressional versus Presidential power was re-ignited. Attorney General Stanbery and Benjamin F. Butler argued that:

The Commander-in-Chief has full power to make an effectual use of his forces. He must . . . have the power to arrest and punish one who arms men to join the enemy in the field against him; one who holds correspondence with the enemy; one who is an officer in an armed force organized to oppose him; one who is preparing to seize arsenals and release prisoners of war taken in battle and confined within his military lines . . . During the war his powers must be without limit, because if defending, the means of offense may be nearly illimitable. ⁽⁴⁸⁾

Milligan insisted, however, that the Military Commission had no jurisdiction to try him upon the charges preferred, or upon any charge whatever, because he was a citizen of the United States and the state of Indiana. Moreover, he contended that the right of trial by jury was guaranteed to him by the Constitution of the United States. ⁽⁴⁹⁾

The Milligan case was decided in April, 1866. Justice Davis announced the court's opinion:

During the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then, considerations of safety were mingled with the exercise of power; and feelings and interests prevailed which are happily terminated. Now that the public safety is assured, this question, as well as all others, can be discussed and decided without passion or the admixture of any element not required to form a legal judgement . . . [T]he 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 . . . [O]ne of the plainest constitutional provisions was infringed when Milligan was tried by a court not ordained and established by Congress, and not composed of judges . . . [A]nother guarantee of freedom was broken when Milligan was denied a trial by jury . . . Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real . . . It is difficult to see how the safety of the country required martial law in Indiana . . . Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction.

Chief Justice Chase concurred:

The power to make the necessary laws is in Congress; the power to execute in the President . . . But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President. Both are servants of the people . . . nor can the President, or any commander under him, without the sanction of Congress, institute tribunals for the trial and punishment of offenses, either of soldiers or civilians, unless in cases of controlling necessity, which justifies what it compels, or at least insures acts of indemnity from the justice of the legislature . . . What we do maintain is that when the nation is involved in war . . . it is within the power of Congress to determine to what states or districts such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes and offenses against the discipline or security of the army or against the public safety.

Thus, the Court declared that the guarantees of such freedoms as safeguard against arbitrary arrest, fair trial and Fifth Amendment privilege are not to be set aside during war. Milligan's trial and conviction by a military commission were overturned. The Court decided that there was no indictment against Milligan, since the Habeas Corpus Act of 1863 stated that political prisoners who could not be indicted by the grand jury should be released.

When the decision was announced, Republicans were infuriated. It fueled their drive for stronger laws to punish war criminals. But for the moment, the ruling exemplified one of the theses of this study: the Supreme Court is far more protective of basic liberties in peace time than in war time. This thesis will be re-asserted when we study the Court's decisions in war time and peace under Woodrow Wilson and Dwight Eisenhower. However, at this juncture, it is important to finish the story of Lincoln's administration.

Habeas Corpus Act

Early in 1863, Congress took up the issue of an "Act relating to habeas corpus, and regulating judicial proceedings in certain cases." The purpose of the bill was to protect soldiers who followed the President's orders against future law suits and other legal action. ⁽⁵⁰⁾ The Habeas Corpus Indemnity Act, passed on March 3, 1863, aimed at terminating the jurisdictional conflicts, such as those illustrated by the Merryman, Vallandigham and Milligan cases. This act stated that "during the present rebellion, the President of the United States, whenever in his judgement the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States or any part thereof." ⁽⁵¹⁾ The introduction of the bill led to heated debate in the House. The Republicans prevailed by sheer dint of numbers 75 to 41 but the Democrats entered a formal protest into the Journal of the House. ⁽⁵²⁾

Under the act, the President's authority to "suspend' was recognized, military commanders were relieved from the obligation to answer the writ, and officers subjected to due process for arrests or imprisonments were given both immunity and the protection of Federal courts. The act did attempt to regulate and control arbitrary arrests by requiring the Secretaries of State and War to furnish lists of prisoners to federal judges. If grand juries found no indictments against them, prisoners were to be discharged by judicial order upon taking the oath of allegiance and entering into recognizance for good behavior. Where such lists were not furnished, a judge might discharge the prisoner if not satisfied as to the allegations of the petition. In the early part of the war, both arrests and releases were at the discretion of the President acting through the military officers. During this time the word of the President (or that of a Cabinet secretary whose power originated in the President) was enough to place a person in confinement. In some cases, Lincoln himself gave the order for arrest. ⁽⁵³⁾

The Habeas Corpus Act provided that, while the privilege is suspended, "no military or other officer [should] be compelled" to produce the prisoners in answer to the writ. Those not indicted were to be discharged by the Federal judge, and "every officer . . . having custody of [any] prisoner [was] directed immediately to obey and execute [the] judge's order." ⁽⁵⁴⁾ The requirement that lists of political prisoners be furnished to the courts applied to future as well as previous arrests, and the speedy release of all citizens against whom no violation of Federal law could be charged was to be expedited. ⁽⁵⁵⁾ Should the prisoners be detained beyond twenty days without the furnishing of such lists, then on petition of any citizen they were to be discharged on the same terms as if the lists had been furnished. ⁽⁵⁶⁾

Under the Act, the mandates of military officers concerning political prisoners were to come from Congress. The legislative branch of the Government, in such an instance, should recover authority from the executive. A similar recovery was to be effected by the judicial branch, for prisoners were no longer to be detained by presidential authority, but were to be released by order of a Federal judge unless indicted by a grand jury for offenses against the United States. Like other wartime statutes, however, the act seems to have had but little practical effect. ⁽⁵⁷⁾

The Habeas Corpus Act offered no effective obstacle in the case of Vallandigham. ⁽⁵⁸⁾ In the Milligan decision the Supreme Court held that the act should properly have applied to citizens subjected to such arrest and sentence, which was declared illegal in non-military areas; but this decision did not come until after the war. Numerous arrest were made after March 3, 1863; releases were ordered, not by Federal judges, but by authority of the War Department. ⁽⁵⁹⁾ Since the Act confirmed the President's right to suspend the privilege of habeascorpus and afforded immunity to officers acting under the President's orders, a certain security and legal sanction was given to a procedure for which the President had been widely criticized, and the executive branch could thereafter proceed with a certain assurance that it had previously lacked. In practice the act strengthened the President's hand while it weakened civil liberties.

Editors Under Attack

Given the turmoil surrounding the war and the fact that many of the factions involved sought and received support in the press, it is not surprising that censorship of the press became a tool of the administration. Restrictions on First Amendment rights led to arrests of newspaper editors by military authorities, the military suppression of such newspapers, and the prohibition of the circulation and sale of those newspapers by military authorities. ⁽⁶⁰⁾ All of this despite an agreement that had been worked out early in the war to deal with press censorship. Representatives of newspapers had met with General McClellan on August 2, 1861 and unanimously adopted resolutions that all "editors refrain from publishing . . . any matter that may furnish aid and comfort to the enemy. . . . That the government be respectfully requested to afford representatives of the press facilities for obtaining and transmitting all information suitable for publication, particularly touching engagements of the enemy."

Some of the military action taken against newspapers and editors was based on the suspicion of their involvement in secret anti-war organizations. As we have seen, the Knights of the Golden Circle began to flourish during the Civil War and Copperhead editors often joined. Founded by Dr. George W. L. Bickley in 1854, the Knights of the Golden Circle had chapters as far north as Detroit, Michigan by April, 1861. ⁽⁶¹⁾ It went through several evolutions eventually becoming the Sons of Liberty, partially funded, as we have seen, by Vallandigham from Canada. It was groups like these that not only challenged the courts to uphold the free speech provision of the First Amendment, but its right to assembly as well. Copperhead editors beat the drum for these rights.

Suppression of these editors began early in the war. For example, in August of 1861, theChristian Observer was closed by the U.S. marshal in Philadelphia. ⁽⁶²⁾ At the same time, a federal grand jury in New York cited the Journal of Commerce, the Daily News, the Day-Book, the weekly Freeman's Journal, and the Brooklyn Eagle for the "frequent practice of encouraging the rebels now in arms against the Federal Government." This was followed by an order from the Postmaster General forbidding the mailing of these newspapers. ⁽⁶³⁾

Similarly, other newspapers were forbidden to circulate and sell. General Palmer temporarily prohibited the distribution of the Cincinnati Enquirer and Chicago Times within Kentucky. In New Haven, Connecticut the circulation of the New York Daily News was prohibited. General Burnside took similar action in excluding the New York World from Ohio. ⁽⁶⁴⁾ This action was taken on the grounds of suspected disloyalty, and was intended as a partial measure for press control.

On February 23, 1863, the Davenport Daily Gazette in Iowa reported that some seventy-five convalescent soldiers from a near-by military hospital entered the office of the Keokuk, IowaConstitution, wrecked the presses and dumped the type out the window. ⁽⁶⁵⁾ In the spring of 1863, the Crisis and the Marietta, Ohio Republican, a Democratic paper, suffered damages at the hands of a mob of soldiers. ⁽⁶⁶⁾ The next year a number of other newspapers in the Midwest, including the Mahoning, Ohio Sentinel, Lancaster, Ohio Eagle, Dayton Empire, Fremont Messenger, and the Chester, Illinois Picket Guard experienced similar visitations. ⁽⁶⁷⁾

Along with suppression came the arrest of some editors. In October, 1861 the editor of the Marion, Ohio Mirror was arrested on charges of membership in a secret anti-war organization. ⁽⁶⁸⁾ In Illinois, a number of men were taken into custody including the editors of the Paris Democratic Standard, M. Mehaffey and F. Odell. These men were imprisoned without trial in Fort Lafayette, Fort Delaware or the Old Capital Prison in Washington, D.C. ⁽⁶⁹⁾ In other Midwestern states those arrested, usually on charges of interfering with enlistment or similar activities, included Dennis Mahoney, editor of the Dubuque Herald, and Dana Sheward, editor of the Fairfield Constitution and Union. ⁽⁷⁰⁾ In Philadelphia the Evening Journal was suppressed by military order in January, 1863, and Albert D. Boileau, its editor, confined to Fort McHenry for a few days until he wrote an apology and promised to reform. ⁽⁷¹⁾

In February, 1862, Secretary of War Stanton sent the following order to officers in various cities:

All newspaper editors and publishers have been forbidden to publish any intelligence received by telegraph or otherwise respecting military operations by the United States forces. Please see . . . that this order is observed. If violated . . . seize the whole edition and give notice to this department, that arrests may be ordered.

Several months after this order, the Knights of the Golden Circle expressed their outrage for the unnecessary yet numerous cases of arbitrary arrests. On October 31, 1862, in southern Illinois, this circular was distributed by the secret organization:

Whereas, the repeated violations of the Constitution of the United States by the present party in power, do most seriously threaten the liberties of the people and tend to the destruction of constitutional liberty, the great anchor of a democratic republic, we, who are hereby united in order to check these outrages upon the rights of loyal citizens, and to prevent this Government from degenerating to a military despotism, to be controlled by unscrupulous fanatics, "do pledge our lives, our property, and our sacred honor," to maintain constitutional liberty, to the extent guaranteed by our fundamental laws, and determine that no more citizens shall be illegally arrested and detained, and that we will resent such usurpation in every legal and peaceable mode, and in the event of defeat we will fall back upon that God-given right - physical resistance to despotic power. ⁽⁷²⁾

The lifting of phrases and the borrowing of tone from the Declaration of Independence reveals a rhetorical sophistication among the Knights, who operated on many fronts to advance their cause.

The circumstances surrounding the Chicago Times and the New York World provide two interesting cases of censorship. ⁽⁷³⁾ The suppression of the Chicago Times was triggered by an incident closely tied to the Vallandigham case. After hearing comments severely attacking the administration and expressing sympathy for Vallandigham, General Burnside, on June 1, 1863, issued "General Order N. 84," which contained the following passage: "On account of the repeated expression of disloyal and incendiary sentiments, the publication of the newspaper known as the Chicago Times is hereby suppressed." Brigadier General Ammen, commanding the district of Illinois, was charged with the execution of this order, and under his authority Captain Putnam, in command at Camp Douglas, Chicago, warned the management that the paper must not be issued on the morning of the 3rd, under penalty of military seizure.

According to Secretary Welles, the President and every member of the Cabinet regretted Burnside's orders; ⁽⁷⁴⁾ Stanton directed a letter to Burnside expressing the President's disapproval. He advised Burnside that the dissatisfaction within his jurisdiction would only be increased "by the presence of an indiscreet military officer who will . . . produce irritation by assuming military powers not essential to the preservation of the public peace." After learning that the orders were given to suppress the Times, Lincoln wrote to Stanton:

I have received additional despatches, which, with former ones, induce me to believe we should revoke or suspend the order suspending the Chicago 'Times'; and if you concur in opinion, please have it done. ⁽⁷⁵⁾

The revocation of Burnside's order was communicated and the publication of the paper was resumed.

A year later, Lincoln revealed his uncertainty about intervening in the Times case in a letter to I. N. Arnold:

In regard to the order of General Burnside suspending the Chicago 'Times', now nearly a year ago, I can only say I was embarrassed with the question between what was due to the military service on the one hand, and the liberty of the press on the other, . . . I am far from certain today that the revocation was not right. ⁽⁷⁶⁾

Lincoln's ambivalence is also evident in a conversation he had in the winter of 1864. In his reply to another request that he suppress the Chicago Times, the President stated:

I fear you do not fully comprehend the danger of abridging the liberties of the people. Nothing but the very sternest necessity can ever justify it. A government had better go the very extreme of toleration, than to do aught that could be construed into a interference with, or to jeopardize in any degree, the common rights of its citizens. ⁽⁷⁷⁾

One result of the Chicago Times crisis was the adoption of resolutions by a meeting of fifteen New York journalists. The resolutions denied the right of the press to uphold treason or rebellion and insisted upon the right to criticize both civil and military acts of the government. ⁽⁷⁸⁾

The case of the New York World presents some differences from that of the ChicagoTimes. Unlike Burnside, General Dix at New York acted reluctantly under a specific presidential order. Moreover, in the New York case the legal methods of resistance attempted in the city and state differed widely from those taken in Chicago. On May 18, 1864, the World published a false presidential proclamation listing the recent battles and setting aside a day for public humiliation and prayer. It concluded by calling for the conscription of 400,000 men. On the day of publication Lincoln sent General Dix the following order:

Whereas, there has been wickedly and traitorously printed and published this morning, in the New York World and the New York Journal of Commerce, . . . a false and spurious proclamation purported to be signed by the President . . . which publication is of a treasonable nature, designed to give aid and comfort to the enemies of the United States and to the rebels now at war against the Government and their aiders and abettors, you are therefore hereby commanded forthwith to arrest and imprison . . . the editors, proprietors and publishers of the aforesaid newspapers, and all such persons as, after public notice has been given of the falsehood of said publication, print and publish the same with intent to give aid and comfort to the enemy; and you will hold the persons so arrested in close custody until they can be brought to trial before a military commission for their offense. You will also take possession by military force, of the printing establishments of the New York World and Journal of Commerce, and hold the same until further orders, and prohibit any further publication therefrom. ⁽⁷⁹⁾

General Dix executed the order and took newspaper managers into custody. Dix seized the newspaper offices and held them under military guard for three days.

Conclusion

Following in the ideological footsteps of Daniel Webster, one of his Whig mentors, Lincoln was forced by the circumstances he inherited to place survival of the Union above some civil liberties guaranteed by the Constitution. Though Lincoln had often been a defender of the Constitution during his career, he was also a critic of some of its consequences, as in his opposition to the Dred Scott decision. In fact, by the time of the Gettysburg Address, Lincoln had concluded that the principles of the Declaration of Independence were more important than a strict construction of the Constitution. He ended that address echoing a phrase from Webster's Reply to Hayne when he pledge a new birth of liberty from a government of, by, and for the people.

That stance had serious implications for freedom of expression during the Civil War. It led to the suspension of habeas corpus, the use of extra-constitutional measures to quiet both his external and internal opposition, and the censoring of newspapers which opposed his war policies. Lincoln's transgressions were forgiven because of the dire situation and because Lincoln used his powers judiciously and politically to keep his opponents at bay. Perhaps the boldest stroke being the signing of the Emancipation Proclamation after the war turned in the North's favor. That event placated Lincoln's Radical rivals in the Republican Party and, combined with the victory at Gettysburg, assured his re-election in 1864.

He would then be able to move to a more conciliatory approach to the South. But in fairness to Lincoln, we need to remember that the scene far different when he first became president. Even before Lincoln took his oath in March, 1861, seven southern states had seceded from the Union. He deemed that a full scale rebellion and suspended habeascorpus in military jurisdictions and where marshall law had been imposed. Nonetheless, Lincoln anguished over these cases, particularly those of Congressman Vallandigham and the Chicago Times. Once Salmon Chase replaced Roger Taney as Chief Justice, the Supreme Court supported Lincoln's actions, as did the Republican Congress after Antietam. It is clear from the documents available that Lincoln's leniency with regard to the South would have extended to Copperheads in the North. But Lincoln's assassination opened the door on an era of vengeful reconstruction where further violation of rights occurred and the Constitution was significantly amended to guarantee that the people would take primacy over the states when it came to civil liberties.

1. For a view of what when on in the Confederacy at the same time see Steven A. Smith, "Freedom of Expression in the Confederate States of America," in Perspectives on Freedom of Speech, eds. Thomas L. Tedford, John J. Makay, and David L. Jamison (Carbondale: Southern Illinois University Press, 1987) 24-45.

2. Don E. Fehrenbacher (ed.), Abraham Lincoln: Speeches and Writings, 1859-1865 (New York, 1989) 456-457.

3. For a historic approach to this question see, Harold Nelson, Freedom of the Press From Hamilton to the Warren Court ((New York: Bobbs-Merrill, 1967) 221-247; Dean Sprague,Freedom Under Lincoln (Boston: Houghton Mifflin, 1965): James Randell, Constitutional Problems Under Lincoln (Urbana: University of Illinois Press, 1951).

4. U.S. Constitution, Article I, section 9, part 2.

5. See Sydney G. Fisher, "Suppression of the Writ of Habeas Corpus During the War of the Rebellion," Political Science Quarterly, 3 (1888): 454-488.

6. Opinion of David Dudley Field, Ex parte Milligan; S.C. 4, Wall. 2-142.

7. For a closer look at questions regarding Congressional power versus Presidential power, see James G. Randall, Constitutional Problems Under Lincoln (University of Illinois Press, 1951) 119.

8. Fehrenbacher 237.

9. Eventually, Maryland would contribute 20,000 troops to the Southern effort and 30,000, including 9,000 Blacks to the Union effort. The state was badly divided and highly explosive.

10. Fehrenbacher 237.

11. Lincoln had already signed several extra-constitutional proclamations which called for troops to repress the rebellion, expanded the size of the army, and blockaded the South. Richard N. Current, T. Harry Williams, and Frank Freidel, American History: A Survey (New York: Alfred A. Knopf, 1963) 390.

12. As reprinted in Current 392.

13. Randall 124.

14. President Nixon used the same argument during the Watergate crisis.

15. The military authorities, however, refused. See Ex parte Merryman, 17 Fed. Cas. 144.

16. James D. Richardson, ed., Messages and Papers of the President, vol. VI, (Bureau of National Literature and Art, 1897) 24-25.

17. This position was used by Democrats to justify the charge that Lincoln was a tyrant. This charge seems unjust given Lincoln's reluctance to suspend the writ. See "To Erastus Corning and Others" in Fehrenbacher.

18. See Horace Binney, The Privilege of the Writ of Habeas Corpus Under the Constitution (Philadelphia: C. Sherman and Son, 1862).

19. Randall 123.

20. Randall 123.

21. Randall 123.

22. Fehrenbacher 456-457.

23. See, for example, Samuel Eliot Morison & Henry Steele Commager, The Growth of the American Republic, vol. 1, (New York: Oxford University Press, 1962) 739.

24. For a more complete discussion of the Constitutionality of military commission issues during the Civil War see Randall 169-185.

25. Randall 174.

26. Randall 174-175.

27. Randall 175.

28. Randall 175.

29. For a more detailed account of the military commissions, see Randall 170-185.

30. Randall 175.

31. Randall 176.

32. Morrison & Commager 740.

33. Joel H. Silbey, A Respectable Minority: The Democratic Party in the Civil War Era, 1860-1868 (New York: Norton, 1977) 101.

34. John G. Nicolay and John Hay, Abraham Lincoln: A History, vol. VII, 338.

35. James G. Blaine, Twenty Years of Congress (Norwich, CN: The Henry Bill Publishing Company), vol. I, 489-93.

36. It should be noted that the Proclamation, which was made official on January 1, 1863, applied only to state in revolt against the Union, not border states that remained loyal. Thus, slavery was not abolished in Maryland, Missouri, or Tennessee. Universal abolition would only come with the passage of the Thirteen Amendment.

37. Blaine 489-93.

38. Nicolay and Hay 338.

39. Ex parte Vallandigham 591.

40. William B. Hesseltine, Lincoln and the War Governors (New York: A. A. Knopf, 1948) 331.

41. Fehrenbacher 45.

42. M. Birchard and others to the President, July 1, 1863 in Richardson.

43. By 1864, the Democrats vilified Lincoln at their convention for "being guilty of interfering with freedom of speech . . ." See Blaine 489-93.

44. "To Erastus Corning and Others" in Fehrenbacher 459-463.

45. See Blaine 489-93.

46. See Blaine 489-93.

47. Ex parte Milligan.

48. Ex parte Milligan.

49. Ex Parte Milligan.

50. See Blaine 455.

51. This same privilege was given to President Grant in 1869 to deal with Southern states that refused to implement the 13th, 14th, and 15th Amendments.

52. See Blaine 455.

53. Although the President permitted all of the arrests, there were instances in which the President directed arrests himself. See Randall 186-214.

54. In cases of delay or refusal to obey the order, the officer was to be subject to indictment for misdemeanor, punished by a fine of at least $500, and imprisonment in the common jail for at least six months. See Randall 165.

55. Randall 165.

56. Randall 165.

57. The enforcement of the Habeas Corpus Act is a difficult historical problem. Some contend the act was not carried out in sufficient degree to make any noticeable difference in the matter of the arrest, confinement, and release of political prisoners. See Randall 166.

58. Randall 167.

59. Randall 167.

60. Particular newspapers subjected to military "suppression" included: the Chicago Times, the New York World, the New York Journal of Commerce, the Dayton (O.) Empire, the Louisville (Ky.) Courier, the New Orleans Crescent, the South of Baltimore, the Maryland News Sheet of Baltimore, the Baltimore Gazette, the Daily Baltimore Republican, the Baltimore Bulletin, the Philadelphia Evening Journal, New Orleans Advocate, the New Orleans Courier, the BaltimoreTranscript, the Thibodaux (La.) Sentinel, the Cambridge (Md.) Democrat, the Wheeling Register, the Memphis News, the Baltimore Loyalist, and the Louisville True Presbyterian. See Randall 492-493.

61. The military branch of the Knights of the Golden Circle was the American Legion. Early in their formation, the Knights proposed to invade Mexico as the first step in adding a tropical slave plantation, surrounding the Gulf of Mexico, to the United States. This is how "Golden Circle" became part of the group's name. See Wood Gray, The Hidden Civil War (New York: Viking Press, 1942) 70-71.

62. See James E. Pollard, The Presidents and the Press (New York: Macmillan Company, 1947) 380.

63. Pollard 380.

64. See Randall 499.

65. Gray 142.

66. The Ohio Republican sustained damages estimated at $800.

67. Gray 164.

68. Gray 70-71.

69. Gray 87-88.

70. Gray 88.

71. Pollard 380.

72. The circular appeared in the Belleville Weekly Advocate. See Gray 113.

73. See Randall 493.

74. Randall 494.

75. Pollard 378.

76. See Pollard 378.

77. Pollard 378.

78. Pollard 379.

79. Richardson 237.