Justice in Blue and Gray: A Legal History of the Civil War

July 8, 2010

It is said that you can't judge a book by its cover, and for many who pick up Stephen Neff's Justice in Blue and Gray, that axiom will be challenged. With its blue-gray metallic background and its barely visible engraving of persons in 18th-century American dress, not to mention its ordinary font, this cover presages what for many will be equally, maybe surpassingly, drab content. It is a good bet that there will never be a movie version of "The Civil War's Greatest Legal Battles". Avatar is safe.

But for a few, me included, and for what I would argue should be more, Neff acquaints us with some of the complex and, yes, interesting issues that were wrapped in and through the peculiar event of states disassociating with other states with which they had previously voluntarily united.

More than that, he shows us how the legal events of that conflict resulted in the formation of legal principles that today influence American and international legal systems. He brings its history into the 21st century with analyses of terms such as "combatants, military tribunals, detention of persons without due process, unlimited incarceration and habeas corpus". I frequently had to remind myself that I was reading about the war between the states - not the War on Terror.

My legal background and my interest in the American Civil War attracted me to this work. I eagerly read its 360 pages in two sittings. Nevertheless, it was a slog - and it would be for anyone. This is an arduous read (and equally tough to research and write, I would imagine). The legal history of a 150-year-old war is not enrapturing, despite the fact that Neff has done an excellent job selecting interesting topics from this complex subject. To make the reader's job easier, he thoughtfully provides a helpful glossary of legal terms, list of abbreviations, chapter notes and an index that, together with a friendly writing style, assist in understanding the subject and enduring this difficult journey.

He begins with the foundationally seismic issue that pervades the totality of the war's legal framework: the nature of the armed conflict itself. Although most would consider it to have been a "war" in a more or less traditional sense, Neff points out that in the North it was seen as a rebellion - Southerners were considered criminals or rebels, without the rights of "belligerents". This meant that the Southern forces would not be treated as "enemy forces", who may be defeated and would then be subject to terms of surrender, but instead as "rebels" or even "traitors", subject to prosecution in the national courts of the victorious state.

But seeing irresolvable issues if the conflict were treated purely as a criminal insurrection, the North looked the other way. In practical terms, it would have been impossible to try thousands or even millions of Confederates for treason, and that process could have been replicated by the South in retaliation against its Union prisoners. Therefore, the North treated its Confederate prisoners as belligerents rather than criminals as a matter of largesse, not as a true legal status or entitlement.

The work is full of interesting twists on issues that, frankly, had not previously occurred to me. The redress of property owners for the various ways their property rights were affected, the differences and consequences among pillage, confiscation, requisition and "military necessity", and even the exact date of the ending of the War (Congress, by statute, designated 20 August 1866 as the official end), are just a sample of the myriad interesting issues that Neff covers, a surprising number of which have significance today.

Neff also tells us much about the bizarre prosecution of President Jefferson Davis of the Confederacy, although he omits a thorough discussion of the problems encountered by General Robert E. Lee and the other primary Confederate military leaders. He does tell us about the strange history of Lee's pardon, but not about the attempts to prosecute him for the conditions at Andersonville prison, for example.

Nevertheless, Neff has included so much in this impressive and useful work that I cannot fault him for light treatment of what may be interesting only to me. What he has done for legal scholarship in showing the modern relevance of meaningful legal history is deserving of high praise, and of an enthusiastic recommendation for it to be read, especially in governmental houses of justice.

Justice in Blue and Gray: A Legal History of the Civil War

By Stephen C. Neff
Harvard University Press 360pp, £33.95
ISBN 9780674036024
Published 26 February 2010

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