In my articles on the Civil War, I’ve taken care not to defend the particular tactics by which Lincoln or the Union Army prosecuted the war. I think there are serious problems with some of these tactics, of course. The suspension of habeas corpus, for example. The power to suspend habeas is recognized by the Constitution, but, as Chief Justice Roger Taney pointed out, it is in the section of the Constitution that deals with the powers of Congress, which seems a good reason to believe that Congress, and not the President, has the authority to suspend habeas. (But, then again, Congress ratified Lincoln’s suspension of habeas when it came back into session.) But notwithstanding these issues, it would be silly to expect that a Civil War would be carried on without serious violations of civil liberties. The American Revolution also inflicted serious harms on such liberties, and every war always will—this is why war is bad. But the badness does not disprove its necessity, or its ultimate justification in some cases.
Still, I can’t help but wonder why there’s always so much talk about Lincoln’s or the Union’s violations of civil rights during wartime. (Often examples are given which were not done on Lincoln’s orders or even with his permission, but by generals in the field, whose orders were sometimes overruled by Lincoln.) You rarely see an article talking about how the Confederacy violated people’s rights to dissent and so forth. Why is that? Now, perhaps it could be because everyone stipulates that the Confederacy was on the wrong side of the war. If I could be confident of that answer, I would not feel compelled to write further.
The Southern states were marked by extremely serious violations of civil liberties not only during, but before the war. As early as 1795, Virginia prohibited any person who alleged that he was wrongfully held as a slave from being represented by a lawyer of his choice. See Robert McColley, Slavery And Jeffersonian Virginia 160 (1964). The same law made it illegal to even advise a slave on the procedure of challenging the master’s authority. Three years later, Virginia made it illegal for abolitionists to serve on juries. Id. at 161. Later on, laws in southern states infringed on freedom of the press. The State of Georgia offered a price for William Lloyd Garrison’s head. In the 1830s, southerners got President Jackson’s backing for their war against the distribution of abolitionists pamphlets. See William H. Freehling, The Road to Disunion: Secessionists At Bay 291-93 (1990) (“Armed with [Postmaster General Amos] Kendall’s instructions…southern postmasters cleansed the mail in the fall of 1835, unless mobs seized the task.”) Southern Congressmen, with strong Northern support, passed a gag rule which, for almost a decade, prohibited Americans from even sending anti-slavery petitions to their own Congress. I need not even attempt to catalogue what was done to any black person foolish enough to speak out against slavery in the south—or speak out for anything, come to think of it—or even to try to learn to read and write.
I think people overlook these basic violations of the civil liberties of both whites and blacks by the Southern states because such things are part and parcel of slavery. As Kenneth Stampp wrote, nonslaveholding southern whites
joined the mobs which sporadically dealt summary justice to lawless slaves, punished strangers suspected of being abolitionist agents, smashed antislavery presses, dispersed antislavery meetings, and drove into exile native-born Southerners guilty of heresy. As a group the nonslaveholders, urban and rural, were passionate conformists and demanded orthodoxy from their churches, their schools, and their public men. In this chilling atmosphere the southern intellectual with an interest in social theory or moral philosophy played a stultifying role. If he remained in the South, the barriers raised by slavery circumscribed the areas of speculative thought open to him. Behind the barriers he performed the rituals which signified his loyalty to the South…. [B]eyond the barriers [was] the dangerous morass of heterodoxy from which, once entered, there was no return.
Kenneth M. Stampp, The Peculiar Institution 428-29 (Vintage, 1956).
Fine enough. But what about when the war came? Perhaps at that point, the south began to respect the civil liberties of its citizens? Here’s James McPherson:
In his February 22 inaugural address, [Jefferson Davis] had contrasted the Confederacy’s refusal “to impair personal liberty or the freedom of speech, of thought, or of the press” with Lincoln’s imprisonment without trial of “civil officers, peaceful citizens, and gentlewomen” in vile “Bastilles.” Davis overlooked the suppression of civil liberties in parts of the Confederacy, especially east Tennessee, where several hundred civilians languished in southern “Bastilles,” and five had been executed. Only five days after Davis’ inaugural address, Congress authorized him to suspend the writ of habeas corpus and declare martial law in areas that were in “danger of attack by the enemy.” Davis promptly proclaimed martial law in Richmond and other Virginia cities. He did so not only because of Union invasion but also because of rising crime and violence…. General John H. Winder...jailed without trial several “disloyal” citizens including two women and John Minor Botts, a venerable Virginia unionist and former U.S. congressman. The Richmond Whig branded these actions akin to Lincoln’s suppression of civil liberties, whereupon Winder threatened to shut down the newspaper. He never did so, but a Richmond diarist noted in April 1862 that several editors “have confessed a fear of having their offices closed, if they dare speak the sentiments struggling for utterance. It is, indeed, a reign of terror.”
James McPherson, Battle Cry of Freedom 434 (Ballantine Books, 1989).
So am I just making a tu quoque argument? No. Of course just because the south did equally bad things does not make Lincoln’s acts right. But the fact that self-proclaimed “libertarian” writers on this subject insist on emphasizing only the wrongs committed by the Union, and ignore entirely the wrongs committed by the Confederacy—all the while denying that the war was about slavery in the first place—tends, I think, to shift the image in readers’ minds. How often do these Doughface Libertarians repeat the charge that Lincoln instituted a military draft? And how often do they even acknowledge that the Confederacy also drafted its citizens? Readers constantly exposed to this curious bias come, I fear, to imagine that the North was some ravenous machine devouring the lives and liberties of the innocent southerners just wanting their independence. An image closer to the truth would be a Confederacy that was very nearly a police state, basing its political dreams on nauseating theories of racial supremacy and the perpetual enslavement of millions of innocent human beings—demanding their right to enslave others without interference—and finally being brought down by a Union which was itself weakened by racism and other internal fissures.
Let us please have at least some balance. There was a right side in the war—and it was emphatically not the South!
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