Tuesday, December 06, 2005

"The past is never dead. It's not even past."

—From Requiem for a Nun by William Faulkner

For Confederate fortunes on August 25, 1864, there was a fleeting moment of success, and one tiny setback. On the upside, forces led by Henry Heth defeated and pushed back Union II Corps troops at Reams Station on the Weldon Railroad below Petersburg. On the not so memorable downside, J. F. Dolan was brought up on charges in California for "belching treason."

The next day, in a regular dispatch for the San Francisco Daily Morning Call, Mark Twain covered the proceedings:


"When wine is in, wit is out." So remarked Judge Shepheard yesterday morning, when J. F. Dolan offered intoxication as an excuse for belching treason - and by the way, speaking of Judge Shepheard, it is every day becoming more and more apparent that in his incumbency, the people have got the right man in the right place. The Judge further observed that when a man is under the influence of liquor, being too bold and independent for caution, he is very likely to let out his real sentiments, and that although this Dolan pretends to be a loyal man when sober, he had no confidence in the profession of loyalty in a man who, when intoxicated, would heap curses on every thing pertaining to the Union cause, declare himself a strong Jeff. Davis man, wish for the destruction of the Union army, and that he was in the Southern army with a musket on his shoulder, as did Dolan. Mr. Riley, in whose saloon Dolan began his disloyal manifestation, and who is evidently a thorough-going Union man, created a sensation in the Court room while testifying, very decidedly in his favor, by giving forcible expression to his feelings on the subject. Dolan had gone up to his counter and called for a Jeff. Davis drink: he wanted none other than a Jeff. Davis drink. Mr. R. told him he'd be d--d if any body could get a Jeff. Davis drink in his house, and incontinently turned him out, telling him at the same time that but for the fact of his being drunk, he would give him a d--d thrashing. Dolan, notwithstanding his good loyalty when sober, was held in the sum of one thousand dollars to appear at the County Court. A little loyal when sober, and intensely disloyal when the tongue strings are loosened by liquor - and such are Copperheads.

One thing that strikes me about this news report is the casual way Twain dismisses the traitorous malefactor. As an author who was famously disdainful of established authority, and censorship, and as one who felt peer pressure to ever-so-briefly join the Confederate cause, I would have expected him to put in a word for free speech. I attribute it to the fact that it was wartime, and tensions were high even on the far side of the Sierra Nevada. Which leads me to some thoughts about "the fate of liberty" during wartime...

What is Past is Prologue

On the Pennsylvania Avenue side of the National Archives building in Washington D.C., rests the limestone statue entitled “The Future.” It depicts a woman looking up from a book to see what’s coming down the pike, or what lies ahead. The designer adorned the base of the monument with a quote from Shakespeare, “What is past is prologue.”

Truer words are seldom spoken, and rarely so poetically. To those of us who habitually find ourselves looking back as much as forward, mesmerized by the sheer depth and weight of all that has gone before, recent events in our own day and age naturally cause us to reflect on historic parallels. Not necessarily with a sense that history is repeating, but with the sense that some things sound awfully familiar. As in, where have we heard (read about) that before?”

Precise circumstances are very different, of course. Today's "war on terror," starting with attacks on U.S. soil and resulting in the creation of a cabinet level department to defend the homeland -- and the suggestion that the enemy is lurking, or hidden among us in sleeper cells -- has produced spirited debate about security versus civil liberties. How does a free nation prevent attacks while preserving fundamental constitutional rights?

Controversial issues surrounding the provisions of the Patriot Acts -- how far the government can or should go in curtailing civil rights in order to preserve "liberty," questions surrounding the open-ended detention of noncombatants or suspected terrorists, and the underlying implication in some quarters that dissent is the nascent expression of treason (as belched in the Twain passage above) -- all of this rings a familiar bell for those who've read much about the Civil War era. Maybe there really is nothing new under the sun. It's fascinating to look back at that earlier period of crisis, and to see how the chief executives of the warring sections responded to the constitutional balancing act within the context of their particular challenges.

There's no better place to start than with the work of Mark Neely, Jr. His book, The Fate of Liberty: Abraham Lincoln and Civil Liberties (Oxford University Press, 1991), is a trenchant exposition that all Americans would do well to read. Neely's study, which won the Pulitizer Prize for History in 1992, as well as the National Historical Society's Bell I. Wiley Book Award, details the kinds of actions that have made Lincoln, to many, an icon of constitutional abuse, especially widespread arrests, the suspension of habeas corpus, and the trial of civilians by military bodies. Though 14 years old, and dealing with the 16th president rather than the 43rd, Neely's analysis of Lincoln's wartime curtailment of civil liberties could not be timelier.

According to Neely's math (spelled out here in the Journal of the Abraham Lincoln Association), 1 in 1,500 people in the North were arrested during the course of the war (though if I'm reading it right, the ratio is skewed by including the arrests of those who were citizens of seceded states, or 26.3% of the total). Neely, in this same article, goes on to say:

Thus the primitive state apparatus of Lincoln's day turned in a fabulously successful and efficient internal security system. Even the 2.9 percent success record beats that of the twentieth-century security apparatus of Woodrow Wilson's progressive state. Despite arrests during World War I of 6,300 enemy aliens (2,300 interned), 2,168 trials under the Espionage and Sedition Acts, and 40,000 men detained by the American Protective League's notorious "slacker raids," not one bona fide spy or saboteur was convicted by the Wilson administration. Franklin D. Roosevelt removed 120,000 Japanese-Americans from the West Coast in World War II, but there was not one single act of espionage, sabotage, or fifth-column activity by any Japanese-American on the West Coast in World War II.

For eight years, neo-Confederates and other devoted Lost Cause apologists could relish Neely's book (even though, ultimately, it concludes that Lincoln's internal security network fell short of calculated constitutional abuse). Here was a Pulitzer Prize-winning work which highlighted the controversies over Lincoln's exercise of wartime powers, extra-constitutional and otherwise, with an indisputable erosion of civil liberties. To many latter day Lincoln detractors, Lincoln's actions were hard and fast validation of why the seceded states wished to distance themselves from perfidious Yankees in the first place. By contrast, Southern dedication to constitutionalism would preserve the Confederacy as an oasis for the true expression of America's founding ideals.

Then came Neely's companion treatment on the Confederacy: Southern Rights: Political Prisoners and the Myth of Confederate Constitutionalism (Virginia, 1999). Ouch. Suffice it to say, this book failed to make the bibliography of The South Was Right, by the Kennedy twins (dot.com). After the 74 citations in the "Yankee Atrocities" chapter, pp. 119-146, there may not have been much room left for Neely. One is put in mind of another Mark Twain passage, this one from Following the Equator: "the very ink with which all history is written is merely fluid prejuidice."

In the scheme of things, the States Righters may have been even more oppressive of civil liberties, to the point of regulating the movement of free citizens. Neely examines the cases of over 4,100 political prisoners in the South, the implementation of martial law in the Confederacy, and the seemingly extra-constitutional actions of the habeas corpus commissioners. His treatise on Southern rights during wartime erodes the blindly popular notion that the Confederacy, in throwing off the bonds of an overbearing central government, exemplified the spirit of personal liberty and state rights.

In reality, the dictates of war led to the same kind of centralized authority that secessionist rhetoric had railed against. Neely fairly obliterates fictions about Confederate constitutionalism. He does so with the same definitive force that Charles B. Dew's Apostles of Disunion: Southern Secession Commissioners and the Causes of the Civil War wielded, when, in one fell swoop, it became impossible for rational people to argue with a straight face that the perceived threat to slavery was not a front-and-center consideration in the secession debates.

Neely's books are the closest things we have to definitive studies on the subject of the political and practical considerations for Homeland Security in the Union and the Confederacy. Now, according to a History and Religious Studies Department web page at Penn State, Neely has finished a book called Terror and War in North America, 1864-1865. I look forward to that one.

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