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Lincoln and the Law

The Fate of Liberty: Abraham Lincoln and Civil Liberties By Mark E. Neely Jr. Oxford University Press 278 pp., $24.95

THE bitter cry of "dictator" first raised against Abraham Lincoln by his political opponents in 1861 has found an echo in every generation since. Most recently two novels, William Safire's "Freedom," and much less knowledgeably Gore Vidal's "Lincoln," raised the specter of the iron-fisted prairie politician who crushed his enemies not only in the South but also in the North. Over the years, historians had largely avoided the subject, Mark Neely suggests, because of their embarrassment at Lincoln's recor d.

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"The Fate of Liberty" is the first scholarly book in more than half a century to take a close look at the subject, especially at the wartime use of military courts in place of civilian ones and at the repeated suspensions of the writ of habeas corpus (the right of the arrested to be brought before a court).

When the subject was touched on by historians in the past, the discussion focused on a "politically symbolic level" or on a few celebrated cases, such as the 1863 arrest of ex-Congressman Clement Vallandingham. In welcome contrast, Neely examines the records of the masses of arrested civilians and so writes, in the parlance of contemporary scholarship, "constitutional history from the bottom up." Many thousands, perhaps tens of thousands, were arrested by the North. The final count is unknown and probab ly unknowable.

But these people tended to be not Lincoln's home-grown political opponents shackled by a lawless government. Rather they were Confederates or from border states, foreigners, blockade-runners, returning Southern sea captains and such. Most of them were not Northerners. The single significant exception occurred in the late summer of 1862 when Secretary of War Edwin Stanton made a determined effort to enforce conscription. In short, the record of the Lincoln government on civil liberties is much better tha n heretofore supposed.

It is also true that these bloody war years brought excesses, even atrocities, and Neely's research unearthed ambiguities as well. Records are incomplete. Who were the civilians and who the military prisoners? What is the meaning of "arbitrary arrest"? No clear answers are available. And yet one wishes the historian generalized more boldly, for his findings suggest that during America's darkest moment liberty fared surprisingly well.

Neely labors a little too hard to keep Lincoln at arm's length, as demanded by academe. Yet history has produced great men and women, however imperfect, and we desperately need to see them and to show them to society. That Neely, too, can give the president his due, in an understated way, is illustrated by the chapter on Lincoln and the Constitution.

It shows a pragmatic young politician who advocated the then constitutionally controversial policy of federal support for building a transportation network by announcing that "no man, who is clear on the question of expediency, needs to feel his conscience much pricked upon this." Lincoln may have put the Constitution on a pedestal, out of the way. It was certainly not the first thing that came to his mind when he faced a problem needing a solution. He was not a "constitutional thinker" and this, Neely contends, set him apart from his era.

To protect black freedom, however, he not only turned to the Constitution but moved to amend it - the very thing he denounced earlier. He knew that the Civil War suspension of some white liberties - the writ of habeas corpus - would be temporary. It is too much to claim that Lincoln's reputation "as a legitimate political leader" depends, "to a great degree," on the question of arbitrary arrests. Yet it is important that Neely sets the record straight. "The Fate of Liberty" couples solid scholarship wit h good common sense, making an original and masterly contribution to our understanding of American history.

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