freedom. >> in 1774, yes. >> right. and he wrote a letter to the danbury baptists stating that -- and these were his words -- the first amendment erected a wall of separation between church and state. that's where the phrase comes from. >> thank you. other questions. how about expansion? yes, ma'am. >> i'm wondering about the authorities who are approving moses austin and steven f. austin's immigration plan, what knowledge they had of the la ture report. >> you mean the spanish officials? >> yes. and if they had knowledge of that. >> they have knowledge of lature's report.st sort of their immediate needs kind of overcome that, overtake that knowledge? >> first of all you've got to keep in mind -- as i said the report is submitted to the

captain general of cuba, the vice royalty of mexico. so it's those high officials. then it circulates or trickles down to the various independent governors. by the time it gets to the independent governors, they are -- they're already bee besieged and beleaguered. they don't have enough men or money or splice. now you're telling me i've got to worry about these americans pouring. in i know that. i can see them coming on the horizon. so yes, they are aware of this. they just couldn't do much about it. by that point in time the spanish government is on the verge of collapse. is that good enough? okay. >> that's all the questions we up can take. we've got to keep moving. we're on tv. thank you very much, dr. smith [ applause ] you're watching american history tv, 48 hours of people

and events that help document the american story. all weekend, every weekend on c-span 3. next, abraham lincoln bicentennial foundation chairman harold holzer discusses abraham lincoln and the freedom of the press during the civil war. as part of his talk mr. holzer examines the reasoning behind the imprisonment of newspaper editors during the civil war and suspension of habeus corpus. this speech was delivered at the new york city bar association and was cohosted by the historical society of the courts of the state of new york and new york archives partnership trust. it's an hour and a half. [ applause ] thank you, judge. i have a feeling if i say thank you, judge, i'll get a you're welcome from two-thirds of the audience. it's daunting. but i've never spoke ton a crowd of so many attorneys in my entire life.

there are several that i want to acknowledge. my daughter meg who is an attorney is here today. [ applause ] >> my cousin, new york state inspector general ellen biben is here today. [ applause ] >> my old friend judge gene odelli is here today. we could go on forever. it's wonderful to see all of you. one other person i want to mention, the subject for this evening is freedom of the press as you know. there is someone in this room who is actually a living hero of the fight for freedom of the press. formerly of the "new york times." i just want to introduce and i know you'll all know her and the case, judith miller. [ applause ] >> i want to start with the end of the war, not the beginning, with lincoln's second inaugural address which is most famous, as you all know, for its closing

words "a calling for malice toward none and charity towards all." the speech was only about nine minutes long. i would venture to say it ended so memorable even after that time had elapsed people had probably forgotten the beginning of the speech. and at the beginning of that address, lincoln launched into a recollection of his first inaugural appearance. and not without a little malice of his own. at least towards some. this is what he said. "while the inaugural address was being delivered four years ago, devoted all together to saving the union without war, insurgent agents were in the city seeking to destroy it without war. both parties deprecated war, but one of them would make war rather than let the nation survive. the other would accept war rather than let it perish. and the war came.

" in a way that recollection sets the stage for tonight's discussion because it sheds light on lincoln's thinking both at the beginning of the conflict and as he looked toward inside conclusion. and in his mind, washington in 1861 was literally crawling with what he called insurgent agents, committed to destroying the union. his responsibility then and his justification later was that anything he did to help the nation survive was justified. and sometimes that determination took extraordinary form. i know chief judge kay and chief judge litman will be amused i hope by this story. but when chief justice roger towny acting in his capacity as a federal sir curt judge challenged lincoln's suspension of the writ in maryland early in the war, the president simply ignored it. but barely resisted, supposedly, an inclination to have the chief

arrested for interfering. during the war, the court did not again attempt to judge lincoln on the matter of arbitrary arrests, much less press oppression. but that's not the story for tonight. although clearly lincoln's use of the war power to suspend the writ of habeus corpus is relevant. and in his view, and i'll quote him again, "as the provision was plainly made for a dangerous emergency " -- it cannot be believed that the framers intended that the danger should run its course until congress could be called together the very assembling of which might be prevented by the rebellion itself." the specific topic for tonight, of course, is the less ambiguous guarantee in the first amendment, congress shall make no law abridging the freedom of speech or of the press. again, lincoln determined that in a case of rebellion,

especially while congress was in recess, contingency trumped even the bill of rights. he did call congress back into session, but not for four months. and not before the executive branch did abridge freedom of the press and, as some have maintained, without constitutional authority. let's look frankly at the record and in preparing for this talk and in preparing for a book i'm doing on lincoln and the press, i must say i've been staggered by the numbers that i've been dealing with. as many as 300 separate recorded incidents that included the following. banning papers from the u.s. mails. interrupting the flow of telegraphic news. arresting and imprisoning editors. and reporters. closing and ransacking newspaper offices. seizing and destroying equipment. and suspending publication. and many of these actions

occurred where the union was in control and where the courts still functioned, as far north as maine. you can't get much farther north than maine. in areas loyal to the confederacy or teeterering between northern and southern control or occupied by the union army or by supervised by war governors or military governors, we can add the following to the litany. participating in or failing to prevent mob attacks against newspaper offices. official censorship of battle field reports and interference with embedded war course spon dents. the banishment of some, the humiliating punishment of others. if anything i think historians have not made a full audit. they focused on two or three landmark cases which are often viewed as mistakes later corrected. most scholars have assessed the curtailment of press liberty during the civil war as

surprisingly infrequent and usually justified. well, i'm going to suggest tonight that the effort was actually far more widespread than we've understood. though it did remain always supremely disorganized and ad hoc. and you'll decide on the justification yourself. i'm also going to propose that the repression was actually supported not only by most of the union public, the loyal union public, although in constitutionally issue that doesn't matter so much, but also by many newspaper editors as well. i've been surprised by that. and finally, i will argue when lincoln had a chance to apply total press censorship he didn't. so let me first offer some evidence of the non-legal variety. because it's important to understand the conditions under which the press and the president operated requires a big leap of historical understanding. you have to imagine yourself in the 19th century when the press

culture was totally different than what it is today. in the lincoln era, newspapers did more than report. they openly represented one political view or the other. they were affiliated directly with the republican or democratic party. they published openly partisan news. they were not newspapers exactly. they were propaganda sheets. within this culture, violence and suppression against the press became tragically commonplace. in 1837, for example, a mob in the town of alton, illinois tossed an abolitionist newspaper's printing press into the mississippi river. and when the editor elijah lovejoy tried to save his property they killed him. the murder roused a young illinois politician named abraham lincoln to speak out against what he called mobacratic spirit. reference for the laws, he says, should become the political religion of the nation.

it didn't. the partisan fighting became the political religion over of the nation, and the fight over slavery and sectionalism only heated up this boiling caldron. by the 1850s, most american cities had two newspapers, one republican, one democrat ex. each publishing increasingly inflammatory warnings about abolitionist plots on one hand and on the other southern schemes to separate and divide the union and make slavery perpetual. lincoln was immersed in this world. he was one of many politicians who not only bee friende sympathetic editors, he hung out at newspaper offices, he had his speeches written at the local press, he used ghost editorials at the local press and opposition he considered villainous reporters. malice toward none was a long

time coming. and lincoln alone was not alone in this view. democratic politicians felt the same way about republican editors. now, importantly press loyalties were fueled not only by party discipline but by expectations of reward. and it wasn't just political advertising which was certainly part of it. once in office, politicians routinely repaid loyal editors with coveted jobs, even honest aib. he doled out postmasterships, foreign consulates, port commissionerships and other patronage plums to 30 or 40 of his favorite journalists once he was elected president. the intertwining of press and politics was a tradition, not an exception. even more alien to our modern concept of the press, 19th century politicians not only befriended and rewarded or punished publishers, they often were publishers and publishers

were often politicians. it's extraordinary how often this intersection occurs. three members of lincoln's first cabinet had been newspaper publishers. the speaker of the house owned a paper in indiana. here in new york, in albany, publisher thorough reid doubled as the head of the republican party. the "new york times" was found by the speaker of our state assembly. now, think about that for a minute. when i suggested at a recent book party at the "new york times," no less, that this was a bit like shelley silver owning today's "new york times," our host, arthur salzberger jr. shouted out from the back "the party's over." it's alien to our culture today. here's another example. the most anti--lincoln, most race it paper in the new york was the daily news, no relation to today's "daily news."

if lincoln became president it warned in one particularly vile article in 1860, we shall find negros among us thicker than blackberries swarming everywhere. typical racist rant of the period. who was the editor of the daily news? he was the brother of the mayor of new york city. so think about that. that's as if marjorie tibbin who is mayor bloomberg's sister and serves as the commissioner for protocol instead had beaten out jill abramson as editor for the "new york times." it just is totally alien to the relationship between the public and the press today. when len con sought re-election in 1864, his campaign manager was the publisher of the "new york times," henry raymond. before that sounds unusual, the publisher of the democratic paper, the new york world, was the campaign press national chairman for lincoln's opponent

for the presidency. press competition and outspokenness only intensified exponentially with secession and war. before his inaugural lincoln told a group of senators and congressmen freedom of the press was necessary to a free government. but he changed his mind. he changed his mind in 1861, a period of trauma, a challenge to the very survival of free government, when traditional opponents became enemies and criticism was seen by many as sedition. lincoln concluded that he must save the whole constitution even if it meant temporarily sacrificing specific guarantees. and one of the first to feel institutions to feel the effect was the press. after the battle of bull run which the union lost in july, the lincoln administration turned particular attention to criticism that he and his cabinet ministers thought had fuelled the defeat and now

threatened to encourage border states like kentucky, missouri and maryland to least union and join the confederacy. the union banned the use of the mails and commercial export with all of the rebellious states, and assumed control of the nation's telegraph system. the new rules applied to manufacturers and exporters of all sorts of product, including newspapers. one of the first test cases involved a philadelphia publication called "the christian observer, who had a rather tenuous affiliation with the episcopal church which basically said we have nothing to do with this paper. and its religious affiliation did nothing to mask is virulently pro-secession and pro-slavery bias. a month after bull run the paper ran the story claiming to contain a legitimate letter from the union claiming that union forces on the march there had been guilty of gross, brutal,

fiendish, demonic outrages, mental ravage to the country, pill large the houses and burn them, outrage the women and shoot down children for amusement. the paper wasn't about to encourage its home state of pennsylvania to join the confederacy but it did have readers in maryland which remained the only route for northern troops to arrive to he defense of washington. on august 22nd, a month after bull run, federal forces invaded the offices of the christian observer where they clearly encountered less resistance than they had at bull run and confiscated type and evicted the staff. after appealing to lincoln that he was just an old man who always promoted arm any, the editor fled to richmond and reestablished his paper as an open pro-slavery sheet in the capitol of the confederacy. the editor had written to lincoln "freedom of the press i always believed was one of the great bull washings of national

safety." lincoln is here, these things are done by a variety of departments as i'll get to a minute, tacitly adopted the argument that the national safety requires journals like the christian observer to be shut down. around the same time, a federal grand jury in new york southern district sent a presentment to the court asking whether certain newspapers here, and i quote "in the frequent practice of encouraging the rebels now in arms against the federal government had overstepped freedom of the press and now deserved what they called the employment of force to overcome them." the foreman identified the alleged sinner bias name. the journal of commerce, the day book, the freeman's journal, the brooklyn eagle and the daily news. some of those names may still be familiar to some of us. . the daily news had recently editorialized if the national government attempted to subvert the states every citizen was absolved by his sovereign. i think by that he did not mean the president.

from the obligation to obey. deciding that the federal presentment had the force of an indictment, the postmaster general banned all five newspapers from the mails. when the daily news tried to subvert the order by sending copies on board a train, the government placed agents on board trains to confiscate them. this was serious business. if subscribers cut off, the news shut down. and its editor, the aforementioned brother of the mayor, turned to novel writing. facing similar ruin, the brooklyn eagle reformed its editorial policy and suddenly for obvious commercial reasons became major supporters of the union. unwilling to do either, the editor of the freeman's journal soldiered on and was arrested, this time on the orders of the secretary of state. and imprisoned for 11 weeks in a prison in the new york harbor. however extreme these actions sound to us today, keep in mind

they chilled very few observers at the time. a grand jury in new jersey, thinking this was a swell idea, promptly identified five of their own newspapers to be shut down. mobs attacked pro-secession newspapers in such decidedly non-southern venues as bridgeport, connecticut and dayton, ohio. union soldiers torched a paper in bangor. ugly incidents all but directed at what people of the day clearly regarded not as loyal opposition but as the fifth column anti-unionism. the war department, a third agency involved, then contributed an order declaring tighter control of the telegraph office because intelligence was being given directly or indirectly to the enemy through the use of this new technology. and keep in mind as we talk about the different press culture, very contention press culture, there was also this new technology which had the same

threatening impact on people as julian assange had in the 21st century, the idea of publishing anything anytime. so the war department placed 154 newspapers on an informal but chilling watch list. as early as april, telegraph wires had fallen completely under military control. but at the same time, only one or two sensors worked the telegraph office. so it was a warning but it was never completely enforced. and newspapers in the field, journalist notice field always had the o of getting on board a train with a dispatch or sending a horseback rider as a runner. correspondence did that, and by and large the press did remain remarkably free to cover the war. perhaps more so than they are in iraq and afghanistan. descriptions and depictions of casualties, for example, were

never forbidden. only the encouragement to rebel and join the insurrection. if other newspapers felt a bond with their repressed brethren, they seldom expressed solidarity. in fact, the republican press endorsed the crackdown. democrats remained completely silent or most, perhaps fearful of objecting out loud. just weeks after vowing that it would not owsequiously applaud the administration -- it apologized for a mob rioting in the streets. no right of the press the times insisted should shield it from the penalty of the crime against society. this was the times speaking. the chicago tribune questioned the very concept of what they called absolute freedom of the press, because in society speech is always limited by prevailing conditions. until the war is over, we must be content to accept whatever

the altered conditions of the times and the country may demand as a requisite for national salvation. calling the daily news that most pestilens of secession evens de york world declared at the time every newspaper that approved of secession should be regarded as the accomplices of treason. and this by and large they were. the times henry raymond was surprised as he put it "only that the administration has so long foreborne to defend itself against the fanatical and inches rekzary crew say the of the secession papers published in loyalty states." in states where no such loyalty reigned lincoln got 53% of the vote in new york but only 2 or 3% in maryland. the suppression was even more draconian. rejecting what he called extreme tenderness of the citizens' liberty that would relieve, he thought, more of the guilty than the innocent, lincoln had

ordered the military even before bull run to arrest and detain without resort to the ordinary processes and forms of law such individuals as might be deemed dangerous to the public safety. that sound like chillingly ambiguous and threatening phraseology. but it certainly includes included the press. when the baltimore exchange editorialized that the war of the south is the war of the people but the war of the north was the war of a party carried out by political schemers, military authorities shut down the paper and arrested the editor whose name was francis scott key howard. not by accident, the irony here was that he was the grandson of the author of the national anthem. thrown into fort lafayette prison. was he guilty of anything more than expressing himself? well, his surviving files included secret resolutions pledging to support the confederacy and the rebellion. marshalls suppressed four of the

city's other pro-secession journals. asked to justify this by congress, lincoln said, "are all the laws but one to go unexecuted and the government itself go to pieces les that one be violated?" accusing rebels of what he called an insidious debauching of the public mind, a phrase i think reflects how deeply he felt about harnessing what he called public sentiment, he said that he could but perform this duty or sur representeder the entire existence of government. i purposely dwelled on these examples from 1861 probably because they're less known than the later incidents but also because they definitely set precedents for what followed. they led the country and the press to a greater period of repression. had the editors risen u protest, it might have been a slightly different story. now, not meaning to ascribe

blame if it's warranted to the victims. i do urge everyone, though, to keep the context in mind, to look at this phenomenon through the extraordinary moment of revolution and danger that perhaps mitigated it. not through the dubious lens of hindsight. and at the time the other branches of government didn't interfere. when congress came back into setified suspension of the great writ. the supreme court remained silent. in 1862, the house judiciary committee began an inquiry into whether the suppression of the telegraph had been used to restrain what it called "wholesome political criticism". they heard from many witnesses including journalists who testified that some of whom testified that they indeed feared using severe language against the administration. but the committee ultimately concluded that legitimate political personal and news, if

inhibited, still free government -- a government free from interference may not always be consistent with the necessities of the government in time of war. and this was ambiguous enough to encourage the house to drop the entire matter. the telegraph censors as hapless and small i were, were left in charge under the aegis of the state department or war department without much further oversight. by 1862, that year the ni list of forbidden coverage anything meant to discourage volunteering. anything meant to discourage people from allowing themselves to be drafted or allowing the as we know they didn't always, including in new york city. then there came a new issue with the emancipation proclamation. the new york evening express repudiated it in a scathing editorial "we do not know what liberty has allowed free white men to discuss the proclamation.

we may be locked up for all this free speech and free discussion, but we lend no sanction to any negro quality". this tirade prompted one correspondent to ask the secretary of state, how is rebellion to be crushed while such insulting traitorous papers are allowed to be freely circulated among the people? tense of thousands in new york now stand ready to enter the printing establishment of several such papers and break the heads of the editors and are only restrained by its unlawfulness and waiting for a weak and puckish government to do the needful to them. no action was taken here, but it's fascinating to read the letters that came into the lincoln administration supporting the notion of further crackdowns. the next year, 1863, the issue came to a head in dayton, ohio. where a union general, ambrose burnside, not the most effective generals in history, arrested a former congressman and newspaper

owner, of course, clement landingham for speaking out against the draft and had him imprisoned and tried by a military commission. he was found guilty, but at lincoln's request was not imprisoned. he was banished to the confederacy. local newspapers that protested like the columbus, ohio crisis, aptly named as it turned out, paid a heavy price. first a mob tried to burn down the offices. the governor later proposed nominating this fellow for governor of ohio. a general banned the newspaper from the mails. landingham actually ran for governor as a democrat, was absolutely devastated in the election. but the crisis continued its own campaign for free speech, what it called free speech, ultimately this editor too was arrested for conspiracy against the union. he apparently died a broken man before he could be brought to his trial. he was not the only editor