(i. e., the second confiscation act), was sufficiently comprehensive to include those who gave aid and comfort to the enemy through the expression of disloyal sentiments. The occasional grand jury indictments against editors, however, brought no results, as none of the cases reached the point of a judicial conviction. In view of this fact, it is hard to agree that the ordinary resources of the law were adequate to deal with journalistic treason.
There is no "seditious libel" law here as in England for punishing extreme abuse of the government, and there is no normal way for the federal government to take the initiative in a prosecution. So effective has been the provision of the first constitutional amendment against laws to abridge the freedom of the press that Congress has only once ventured to restrict editorial independence, and the sedition law of 1798 raised such a storm of denunciation that it was not generally enforced. Had it not expired in 1801 it would certainly have been repealed. In 1832 the law was denounced as unconstitutional by the House Judiciary Committee, and Congress in 1840 indicated its disapproval of the act by refunding a fine that had been imposed upon the Vermont editor Matthew Lyon.[1]
Considering these limitations upon judicial and legislative action, it became necessary for the Executive to resort to extraordinary constitutional grounds and to the plea of military necessity whenever newspaper abuse reached such a pass as to call for really vigorous action. Though the arrest of editors and the suppression of papers would have been appropriate under a regime of martial law, or in a district under military occupation, yet such action under the actual circumstances was hard to justify, except on the principle that the supremacy of the government was an imperative necessity. The protection under the Indemnity Act of officers who acted under the President's orders amounted to a recognition of the unusual character of these proceedings.
The difficulty of enforcing such measures was well illustrated in the case of the suppression of the New York World in May, 1864. The World had published on May 18, in company with other papers, a bogus proclamation of the President which implied an admission of Union disaster in recent military operations, set a day for fasting, and called for a draft of 400,000 men. General Dix, under orders from Washington, seized the offices of the World and Journal of Commerce, and their publication was suspended for three days. The editors protested against this measure
- ↑ Report of Judiciary Com., House of Representatives, January 20, 1832, House Report No. 218, 22 Cong., i sess. Act approved July 4, 1840, Statutes at Large, VI. 802.
