may have privately relished. the chicago times had been flaying him for years and publicly, however, he became convinced that we should revoke or suspend the order. especially once protesters from both political parties began filling the streets to demonstrate against it. some interference did remain unacceptable to lincoln. by this time however, censorship were common. general repressed news, restricted reporters who talked too much. their argument was, if they publish something about troop movements, the enemy will learn about it and they will impair our ability to surprise them. they will create extra danger for our soldiers. they also castigated reporters who criticized their generalship. they had it both ways. some reporters faced court mal mar court-martial, even though this

were he civilians. one to dig trenches, one to ride a horseback wards out of camp, a sign of humiliation, a sign across his back and read libeller of the press. lincoln tried revoking one decision to expel a new york herald reporter from grant's quarters but unable to irritate his most valuable general. if general grant shall give his express content -- general grant didn't want to give his success so he passed the buck to general lillian sherman who never met a reporter he didn't hate, absolutely hate. oblivious to politics because lincoln hoped to keep the department james bennett, sherman sent the reporter the following message. come with a sword or muskette, prepare to share with us our fate in sunshine and storm and i will welcome you, but come as

representative of the press, which you yourself say makes no slight difference between truth and false hood. my answer is, never. the ban remained in force. following william mckee, who lincoln called a democrat editor, which was, you know, akin do a worse adjective, had better luck. he got hold of and published lincoln's official letter promoting a general named john scofield in missouri. skoe fooed was outraged. he demanded mckee name his source and when refused, ordered him arrested. lincoln generally reprimanded the -- not for violating freedom of the press but for upsetting the political apple court. keep in mind, missouri is a state teetering between the south and the north with a lot of blood shed and ab gags of civil liberties, by the way. i care for the publication of

any letters i've written. please spare me the trouble. scofield's answer was, he has to be arrested. he has to be restrained. so, lincoln said, okay, there is an apparent impropriety but still a case where no evil could result and i am entirely willing to overlook. finally knox was set free. as lincoln wroetd scofield in the one that started the whole business, the one that was published, because they reflect his overall policy in all the border states. let your military measures be strong enough to repel the invader and keep the peace but not so strong as to necessarily harass and persecute the people. this included editors. you'll only arrest individuals and suppress newspapers when they be working palpable injury to the newspaper.

still wiggle room. the army had incredible maneuvering ability in the areas under their control. but lincoln was changing. he was willing to assume the worst in 1861 when threat of succession by border states was highest. he called great calmness, and forbearance. but the rest was yet to come in in 1864, here in new york, the one incident in which he took personal possession of a crackdown, he signed a document. he didn't write it but he signed it, declaring that the new york world, a democratic paper, had wickedly and traitorousl printed a proceed clowe mags designed to give aid and comfort to the enemies of the united states. the order commanded general john a. dikes here to arrest and

imprison in any form, i'm quoting again, editors, proprietors and publishers and bring them to trial for their offense. take poe egs of the printing establishments and prevent any further publication. tough words and actions, indeed. why the fuss over a bogus proclamati proclamation? the initial believed the democratic press conspired to release a fraudulent sshl order calling for 400,000 new volunteers in the union army in order to send gold prices plummeting following which editors would buy in at low prices and reap huge profits once the proclamation was disavowed and stocks rebounded. according to the new york world which maintain its incident, a messenger came to the office, bearing this official looking proclamation. most looked and said, this doesn't look like. we're not publishing it. it's too late in the day.

the president doesn't issue things at 8:00 at night but the new york world and another democratic paper did, the journal of commerce. lincoln through the word's editor, one of his most virulent critics, threw him into jail a long with a guy named joseph howard, a former "new york times" reporter and an old thorn in lincoln's side who had invented the calamity lincoln had snuck into baltimore wearing a disguise. he was told howard was in lincoln, president must have said, okay, throw away the key. as it happened, enry ward beacher, minister of plymouth church in brooklyn, told lincoln that, indeed, howard had done the whole thing himself, with the hope of making some money. now he paid the price for both missteps, including fraud. he stayed in prison for a long time. and then to show how complicated this becomes, the governor of

new york, horatio seymour ordered the general put on trial in municipal court in new york city for trespass, kidnapping, forcible entry and inciting to riot. the poor judge who heard the case didn't quite know what to make of it. he sort of issued a half-hearted ruling saying the suspension of the writ of habeas corpus was in part unconstitutional and general dix is subject to civilian indictment. if the general could close down a civilian newspaper, then a civilian court could indict a jebl but they didn't indict the general. nothing really happened. the world case remains something of a mystery but it was one case in which lincoln himself is known to have signed that document that indicated he believed the loin had been cross, separating fres freedom from criminality and treason. i realize i offered an avalanche of evidence and i don't want to convict abraham lincoln, especially to this distinguished audience of judges so let me

suggest here that in my own view, lincoln deserves to be judged not only by what happened but what didn't happen next. just weeks after the world's case, he was renominated as a second term. a lot of people thought that was itself an abbrogation of power. no president since andrew jackson had sought or received a nomination for a second was 30 president had run for re-election. many people concluded it was lincoln grabbing what wast of free speech, power of the people and grabbing it all for himself. not unexpectedly, a brutal campaign followed. during all of it, lincoln did absolutely nothing to suppress antirepublican, pro-democratic journalism, even had when it called for armistice, recognition of the confederacy, denounce the emancipation proclamation because it was back

to politics and with no bars held, no restrictions by the government. with some justification, at least in the minds of many of his contemporaries, lincoln might have postponed the election entirely. no nation before it ever staged a popular election in the midst of a civil war. it was unprecedented. but even with the american people as he put it partially paralyzed by a political war among themselves, he argued if the rebellion could force us to forego a national election, it might fairly claim to have already conquered and ruined us. the election went on. lincoln had no second thoughts, even when the new york world issued daily editorial attacks or issued horrific racist cartoons designed to convince public if lincoln were re-elected, african-americans would rule the nation. part of a campaign of words and

images designed to goad frightened white supremacists to the polls. and it did, it worked. lincoln barely won new york state in 1864. he had done worryingst worse than in 1860 but he never interfered with the world's right to remain anti-republican and white supremacists in 1864. political wars might be ugly and decisive but he believed civil war curtailed press freedom. lincoln did not seek absolute sovereignty. merely the restoration of the press status quo antebellum and armies took control of southern territory. press censorship did not increase, it decreased. i think the appear sense of interference in 1864 sefshrve t vindicate lincoln's record on press freedom. he acted only when the nation

itself was in peril. he let others take action without his direct supervision. he worked on border states. he acted to prevent the disclosure of troop positions that might endanger his army by tipping off the enemy. by the way, robert e. lee confided he planned his entire invasion of pennsylvania in 1863, the invasion that led to the battle of gettysburg by reading philadelphia newspaper to know where the union army was moving. lincoln circumstance couple vented the constitution to save it. he always did believe that once saved, it would again rein. as he put it, lest there be some uncertainties, after the rebellion is suppressed, the executive deems it proper to say it will be his purpose then as ever to be guided by the

constitution and the laws. because as he said it in a joking way, no sick patient ever developed so strong an appetite for emedics during a temporary illness as to persist on feeding upon them through the remainder of his healthful life. raymond of "the times" who cheered the closing of newspapers agreed. the temporary surrender of these rights is a small price to pay for their permanent and perpetual enjoyment. in any future great national trial, lik con predicted, compared to the men of this, we shall have as weak and as strong, as silly and as wise, as bad and as good. let us, therefore, study the incidents of this as philosophy to learn wisdom from and none of them as wrongs to be revenged. where the press was concerned, did lincoln prove wise or silly? bad or good? at least he was wise enough to remain uncertain. one thing is certain, lincoln

believed history, not the courts, quite frankly, would be the ultimate judge. so even as we uncover data about this neglected aspect of lincoln's presidency, i would suggest we remember not only to continue faithfully counting individual acts of suppression, and that tally is important, to explore overall policy and culture. self-imposed limits within the partisan press culture of the age, in the unprecedented crucible of civil war. do remember, as i submit this case to my friend, chief judge judith kay and chief judge littman and judge rosenblatt, i feel the -- i feel inevitability of judgment closing in around me. that lincoln never imposed official or national sensorship

policies beyond understandable control of the military telegraph. the administration considered each case as it came to be sure often acting too quickly and harshly, erroring on the side of better safe than sorry but never imposed a blanket muzzle on the press. in judging the lincoln record we have to be certain not to casually apply 21st century rules to a 19th century crisis and a 19th century press culture. the path to understanding this period requires us to strip away the layers of assumption that understandably obscure ourening of the volatile press, culture of the civil war era and the challenge that rebellion itself posed to majority rule and constitutional law. in the effort to tone down an increasingly heat debate, i think we need to put ourselves in lincoln's position, presiding over a nation trying to fall apart. trying to find the body politic

even when it meant sacrificing the limb of constitutional restraint. as lincoln told albany, they would sacrifice a limb to save a body. in this effort, we might be guided by one of lincoln's own famous anecdotes, which i'll close with. confronted once by a particularly vicious attack by another newspaper, the president was reminded of the story of the traveler who got lost in a thunderstorm. a thunderstorm so violent it seemed the day of judgment had arrived. after one particularly loud clap of thunder, the frightened man dropped to his knees and offered prayer to which historians and judges alike might well say, amen. o lord, if it is all the same to you, please give us a little more light and a little less noise. newspaper shutdowns made a great deal of noise then and more noise now.

but understanding the period that made politics and the press part of the same feuding family, a house divided and perhaps without his leadership, a house doomed to collapse may help us to see this new issue as well in an entirely new light. thank you all very much. >> stand up again. let's have another one. that was fantastic. really, really good. my goodness. talked about all the judges here in the room. you'd make a wonderful judge. what a presentation circumspect, balanced and with the holding that has withstood the passage of time. well done.

i know that you would all enjoy sitting around this little table here but it's too small. i'll ask for everyone in the room. so, you'll have two surrogates who will join in this little round table and they'll be seated there in a moment to just chat about what we've just heard about the last few minutes. this wonderful talk. it will be carried on a little further in an informal setting. along with harold holzer and judge judith kay, we'll have john walker, who is now a senior circuit judge, formally the chief judge 2nd court of appeals. he serveds a member -- or does serve as a member of the judicial conference of the united states. he's currently a member of the committee on international judiciary relations and is chair of its committee on judicial

conduct and disability. and in new haven. at yail yale law school he teaches constitutional litigation and legal writing and is director of the united states association of constitutional law. he's also, some may be reassured to know, is promoting the rule of law in china, the middle east and central and eastern europe. he's very much dedicated to this. we're glad that he's there as our ambassador, so to speak. before going on the bench, as some of you may know, but i didn't realize, he was state counsel of the republic of botswana, also a partner in carter and millburn and assistant secretary of the treasury in 1981. come up here and take your places at the table. judge walker, judge kay, harlz holzer.

>> still in the hot seat. >> still in the hot seat. >> fantastic. really, really fantastic. so, this will be the 42nd book? >> no,there will be one between the 41st and -- >> what will that be? >> a book called "emancipating lincoln" a published version of lectures that i did at the department of afro-american studies at harvard last year for henry louis gates. >> how long will it be before we have this one? >> two years if i stop giving talks about it. >> and what's the adjective that goes before the word lincoln, if the one that precedes it is emancipating and this one will not be convicting lincoln, what -- >> that's up to you. no, it's called "uncivil wars: the press in the age of clinic con." >> i have a question. in the

age of lincoln." >> so i have a question. what was the -- can you be a little more precise on what the standards were that lincoln used in judging between political dissent, sedition, and treason, and how did he actually -- did he expound on this publicly? and if so, can you tell us what he said about it? >> and i'll pickiback and add personal criticism too. >> we're getting a lot of feedback. >> i wonder what we can do about that. >> is there a doctor in the house? >> try that. >> you're very generously assuming that he had a set standard of rules and rationales. i haven't found any. cases were brought by generals independently of the commander

in chief. he was later asked to ratify or disown or overrule. the post office that -- the post master general closed down the mails to exports to the confederacy. the old three-mic syndrome. i know it well. the war department acted. if there are standards, they are, number one, endangering union armies either on the march to washington or in hostile territory. >> there was a concern about the effect of speech on recruiting and desertion. >> yes. there was a concern that the expressions of -- >> was it an excuse they used? >> would have limited volunteerism and created more objections to the draft, such as we saw flame into violence in new york and some upstate cities

in connecticut in riots that took place when the draft was first instituted. >> but what was the legal standard? what was the articulated standard? >> the legal standard -- i shouldn't have said let there be no noise and light, whatever that anecdote was. i'm paying the price. the legal standard was the law of war, as lincoln put it. he was the commander in chief in the time of a rebellion. that gave him leave since the ability to suspend the writs ambiguously written, it's in the congressional section, no one knows why it's in the congressional section. it doesn't mention congress. so he had the right to suspend the writ in an absolute emergency. he could have called congress back into session to ratify it earlier, but there was some elections still taking place and he didn't want congress to come back into session. >> if you could end your talk this evening with a really startling number, an array, of incidents of suppression. all of this just went to acts of war? >> yes.

well, some of the 300 that i have counted included mob attacks that were unrestrained or encouraged. it was a routine. and by the way, i have left out the whole area of confederatye s suppression. the confederacy was practically a police state, much more so than the union. in places like harper's ferry, virginia, which is an extreme, i'm not even sure if it had a newspaper. it would be a fun thing for me to find out. but harper's ferry is the town that changed hands most often during the civil war. something like 30 times. every time another army would take a town, the soldiers would do two things. have a lot of liquor and burn down the newspaper. they burned down pro southern newspapers in kentucky, mississippi, georgia, and confederate troops burned down newspapers in pennsylvania and maryland. >> how much do you think control of the press affected the outcome of the war?

and this is a question of steven kay's daughter. she gave this to me as i sat next to her. >> that's a very, very good question. >> i thought so too. >> i'm sort of sorry she asked it, because it's a hard one. i think the original suppression, and i did it out of order chronologically. i decided on my own dramatic arc tonight. but the first acts which weren't objected to, which i think encouraged the administration, were in maryland. lincoln suspended the writ because union soldiers on the march from massachusetts to washington were attacked on the streets of baltimore. where he himself had been threatened, and decided not to go publicly through baltimore. people died. massachusetts volunteers. on the very train crossing that he was going to take. the governor of maryland, governor hicks, came to lincoln and said, i think your troops should go a different way. and lincoln got furious, and he said, my troops are not birds. they can't fly.

they are not moles, they can't dig under the earth. they shall go through baltimore. and he decided that he had to prevent the seceding and isolating washington. it was now a war. this territory was threatening to join a rebellion against the legally and constitutionally elected government. so he suspended the writ in maryland. he arrested the editors. he arrested john merriman, the famous case which has inspired no less than two books in the last month. and, you know, whatever tony ruled about producing the writ for merriman, he stayed in prison. merriman wanted to blow up bridges to prevent troops from crossing. if the maryland legislature had been allowed to sit, they would have voted for secession. so lincoln prevented the legislature from convening. >> so the question -- kwrth question i have goes back a little bit to what we were discussing earlier.

my understanding is that there was this meeting in albany that you described, and there was something called the albany resolves, which were presented to lincoln and lincoln reacted to that publicly and tried to delineate between the kind of conduct that warranted suppression and the kind that didn't warrant suppression. i think a similar thing happened after the chicago times incident as well. and in each case, he let -- eventually, i mean, blandingham was not kept in jail. he was banished to the south. and the chicago times situation was resolved, and the chicago times favored by lincoln fairly quickly. but my understanding is that he did make some kind of statements about what he was doing and why he was doing it at that time. >> do you think that's too compound a question in form? >> well, i'm trying to lead into whether there were standards or whether he -- >> he's creating them as they go along. and belated response to ms. kay's question, he had no idea. and we have no idea, whether it has an impact.

he didn't suppress newspapers because he didn't come from -- he liked debating in the press and engaging crowds. he was petrified that the country itself would fall apart, disloyalty. >> i was going to ask you to comment for a or too on themilliue he did come from tonight, because what we have heard tonight isn't consistent with the great country lawyer. >>eat b as an adult or one of his first real jobs wases a post master in the town of new salem. and people got their newspapers from the big city like springfield by post. and they soon began wondering why their newspapers came instead of in their usual crisp together looking like they had been read. well, the answer is, they had been read. the post master was reading the

he was -- he was introduced to the world beyond his mill town by the newspapers that covered springfield and chicago and even washington. it awakened the world in him, but awakened it in a way that was extremely partisan. he read democratic and republican papers, playing away at other each. in that world, he developed greater ambitions. i think they were fueled in large part by what he read was possible from the newspapers. of course, excuse me, judge, and of course educated himself in the law just as he educated himself in the bible, geometry, shakespea shakespeare, and all of the other things. >> much of that was conducted in the first instance by the military who thought this was necessary for the war effort in one way or another, guided or

misguided as it might have been. but was that because lincoln had created an atmosphere that said, go ahead and do it, or was it because they were going to go ahead and do it, and then he would react to it and perhaps allow it or perhaps not allow it and be more passive? >> lincoln is known -- i'm going to answer this eliptically. but lincoln is known as a great pardoner when it came to deserters who had death sentences imposed on them. by the same token, he was probably the biggest executioner in the history of the military. because a lot of people who are accused of -- convicted of desertion were executed. they were shot. lincoln was always walking a fine line between adherrence to his view of the law and morale building. so in letting generals have their way, he was recognizing that they were on the ground. he didn't have instant access to the conditions on the ground. and until they proved themselves