Posterity’s Blush: Civil Liberties, Property Rights, and Property Confiscation in the Confederacy

In 1881 Jefferson Davis published The Rise and Fall of the Confederate Government, his contribution to the growing literature of the Lost Cause. As the Confederacy's ex-president, he was in a unique position to write an insider's account of the short-lived Southern nation. His book was more Confederate apologia than Confederate history, however, and it was a weary read. Dry and colorless in its narrative, legalistic and utterly without humor in its style, Rise and Fall was most of all self-righteous. Never once in nearly thirteen hundred pages of text did Davis admit a mistake, either by himself personally or by the Confederacy. ¹

In particular he assumed that he and his cause possessed the moral high ground where civil liberties were concerned. Davis severely criticized Abraham Lincoln's administration, and Northerners in general, for what he viewed as their spotty wartime record on freedom of speech and the press, declarations of martial law, and suspension of the writ of habeas corpus. "No autocrat ever issued an edict more destructive of the natural right to personal liberty," Davis wrote in reference to Lincoln's 1863 suspension of the writ in New York. His judgment of other Union measures for internal security was equally harsh. "The government of the United States . . . presided over the ballot box, held the keys of the prisons, arrested all citizens at its pleasure, suspended or suppressed newspapers, and did whatever it pleased under the declaration that the public welfare required it," Davis wrote. ²

He believed that his nation's record provided a stark contrast to the Lincoln administration's usurpations. Notorious for constructing minute, detailed rationalizations to defend his conduct, Davis largely passed over in silence the more thorny policy initiatives of his own administration—the military draft, impressment of civilian goods, declarations of martial law, and suspensions of the writ of habeas corpus—saying in effect to the reader that his record in these matters was so above reproach as to require no defense. Like many white Southerners, Davis believed that concern for individual rights had always been the hallmark of a Southern people whose "conservative temper" led them to embrace severe limitations on the authority of the national government as a means of preserving individual citizens' autonomy. ³

Chief among these individual liberties was the white South's deep concern for the sanctity of property rights. In Rise and Fall of the Confederate Government, Davis was particularly critical of the North's confiscation laws, which he described as having "violated all the principles of the law of nations." According to Davis, "the armies of the United States were literally authorized to invade the Confederate States [and] to seize all property as plunder . . . . Our posterity, reading that history, will blush that such facts are on record." After decades of waging a spirited defense of property rights in human beings, white Southerners like Davis saw the defense of property in general as the South's special mission, the intellectual and moral center of gravity in a Southern philosophy of individual freedom and liberty. ⁴

One of the last remaining bastions of Lost Cause mythology has been the pervasive idea that the Confederacy really did have a better record than the Union where protection of personal liberties was concerned. Recently, however, Mark Neely's pathbreaking study, Southern Rights: Political Prisoners and the Myth of Confederate Constitutionalism, convincingly called into question this belief. The first book-length, scholarly examination of the Confederate record on civil liberties, Southern Rights chronicled a Confederacy which was no better—and in some cases worse—than the North in this regard. There was, Neely wrote, "a longing for order in the South, released by independence from the North and quite at odds with the region's fabled desire for liberty or 'southern rights.'" The Southern passion for order and the exigencies of war, he argued...