Download Civil Liberties in the Confederacy - H-Net

Mark E. Neely, Jr. Southern Rights: Political Prisoners and the Myth of Confederate Constitutionalism. Charlottesville: University Press of Virginia, 1999. vii + 212 pp. $35.00 (cloth), ISBN
978-0-8139-1894-5.
Reviewed by Jeffrey W. McClurken (Department of History, Johns Hopkins University)
Published on H-South (January, 2001)
Civil Liberties in the Confederacy
stricted the rights of its civilians as much as the Union.
Civil Liberties in the Confederacy
The book begins with an account of a Florida newspaper correspondent arrested and held without trial by
Confederate authorities the same day Fort Sumter was
fired upon. “There would never be a day during the
Civil War when Confederate military prisons did not
contain political prisoners” (p. 1). Continuing his Introduction, Neely discusses the reaction of Southerners (or
lack thereof) to restrictions of civil liberty, an important
theme of this book. He describes the Confederate passport system imposed on Southern whites that resembled
the antebellum system of restricting black movement and
Southern civilians’ apparent acceptance of these restrictions on their liberties as stemming from a desire for order, despite the historiographic characterization of them
as ardent supporters of individual rights above all else.
According to Neely, the significance of this work is According to Neely, most Southerners, like Northerners,
that Lincoln’s contemporary and historical reputation accepted the passport system, martial law and the suson this subject has been that of an authoritarian tyrant, pension of the writ of habeas corpus as temporary, necwhile Davis has been portrayed (starting with his own
essary measures to ensure stability and to help win the
history of the Confederacy) as a staunch defender of civil
war.
liberties and constitutionalism, even by those critical of
The book itself is split into four parts, with the chaphis presidency like Paul Escott. [1]
ters in each part introduced by a brief historiographical
With Southern Rights, Neely proves that despite the essay. Part One, “Liberty and Order,” examines early republic attacks of Davis and the Confederacy on the Union strictions on civil liberty in the wartime South. Chapand Lincoln for their restrictions of individual rights, ter One, “The Rogue Tyrant and the Premodern State,”
“[t]he two societies were more alike than unlike in the
explores the implementation of martial law in Arkansas
way they handled civil liberties” (p. 172). Using newly
by General Thomas Hindman in 1862, as he organized
discovered records of over 4,000 civilians’ arrest and dewartime industries and military forces in an attempt to
tention, Neely demonstrates that the Confederacy reIn Southern Rights: Political Prisoners and the Myth
of Confederate Constitutionalism, Mark Neely effectively
challenges the strength of the Confederacy’s (and specifically Jefferson Davis’s) defense of civil liberties and adherence to a strict constitutionalism. Neely’s first book
on civil liberties during the Civil War (The Fate of Liberty,
1991) won him the Pulitzer Prize and skillfully defended
Abraham Lincoln’s use of military courts and his suspension of the writ of habeas corpus as part of an attempt
to more successfully prosecute the Union war effort. In
Southern Rights, Neely argues that Jefferson Davis and
the Confederacy also acted “as modern democratic nations did in war”: they placed restrictions on individual
liberties out of perceived military necessity (p. 173).
1
H-Net Reviews
keep the state in the Confederacy. Neely argues that although Jefferson Davis removed Hindman for his restrictions of civil liberties, the President later came to accept
Hindman’s methods for mobilizing the Southern economy and population. Chapter Two, “Alcohol and Martial
Law,” uses petitions, editorials, and letters to demonstrate
that problems with drunk Confederate soldiers prompted
citizens in Southern towns to ask the Davis administration to impose martial law, “a sign of a deep longing for
order” from Southern civilians (p. 42).
Part Three, “Dissent,” reinterprets Southern opposition to the Confederacy in light of the commissioners’
records. In Chapter Six on East Tennessee, Neely rejects
previous explanations of upland resistance as stemming
from economic hardship and resistance to conscription,
pointing out that such opposition began in 1861, before
either became an issue. Chapter Seven on Western Virginia and North Carolina argues that the records of the
Confederate government and the habeas corpus commissioners show “evidence of political repression” of antisecessionists (p. 132). Chapter Eight, “A Provincial SoPart Two, “The Confederate Bench and Bar,” explores ciety at War,” builds on Carl Degler’s The Other South to
the wartime actions of Southern lawyers, judges, and the
examine civil liberties among the marginalized peoples
War Department on the issue of civil liberties. Looking
of the South (including African Americans, pacifists, and
mostly at War Department sources, Chapter Three, “Lib- Northern-born “alien enemies”), arguing that “by the end
erty and the Bar of the Confederacy,” argues that South- of the war the[ir] civil liberties … were definitely deteriern lawyers could have been much more zealous and vo- orating” (p. 150).
cal in their lawsuits, disrupting a Confederate government ill equipped to respond to such legal challenges. BeIn Part Four, “Jefferson Davis and History,” Neely recause they do not, Neely suggests that the lawyers were jects the characterization of Davis as a defender of civil
“largely complicit with Confederate government power” liberties that he claims historians have largely accepted,
(p. 63).
pointing out that despite his attacks on Lincoln’s tyrannical behavior, Confederate military prisons had civilChapter Four, “The Peculiar Jurisprudence of Rich- ian inmates from the start of the war. In Chapter Nine,
mond M. Pearson,” sets up the Chief Justice of the North “Jefferson Davis and History,” Neely convincingly argues
Carolina Supreme Court as the exception in the Confed- that Lincoln and Davis both set their initial policy on
erate judiciary, an active defender of civil liberties who
civil liberties based on their attempt to win over the borchallenged the constitutionality of conscription. Here,
der states. Lincoln embraced restrictions on individual
too, Neely points to the relative lack of challenge to Con- liberty to hold on to what the Union already controlled,
federate restrictions of individual liberty. He acknowl- while Davis spoke of sacred civil liberties in order to peredges that restrictions of civil liberties brought on some suade the border states to secede as well. As the North
complaints, but he suggests that most of them grew out invaded, however, Davis sacrificed individual rights to
of antebellum political divisions. [2]
hold on to what remained of the Confederacy. Neely sees
In Chapter Five, “Ghosts of the Dead Habeas Cor- both men as willing to do anything to preserve their napus,” Neely explores the creators of over 4,000 records of tion, even set aside their respective constitutions.
Confederate political prisoners, a shadowy semi-official
The book has a couple of problems. First, given the
group of civilians working for the War Department importance of the records of the habeas corpus commisknown as the habeas corpus commissioners. With virtu- sioners, a set of tables or an appendix laying out the loally no supervision or guidelines, these lawyers reviewed cation of arrests, reasons for arrests, and prisoners’ backthe cases of the civilian prisoners in Confederate military
ground would be helpful. Second, and perhaps more sigprisons, deciding whether to release them, send them to
nificant, Neely’s problems with other historians’ intera civilian court for trial, or make no decision (leaving the pretations of Davis’s stance on civil liberties may have
prisoner in jail indefinitely). Neely concludes that, ef- more to do with the prevailing historiography on Linfectively, many of these commissioners served as “mo- coln before Neely’s own The Fate of Liberty came out,
bilization officer[s],” putting disloyal civilians in military than with their views of Davis. Neely criticizes Escott
service if possible and otherwise keeping them out of the
and Richard Bensel for seeing a “sharp contrast” between
way (p. 93). The commissioners’ reports remained hidthe Lincoln and Davis administrations on civil liberties,
den “in plain sight” for many years as ordinary letters to yet both authors had published before Neely’s own The
the Secretary of War with no reference to their contents Fate of Liberty so skillfully reinterpreted Lincoln’s actions
(p. 82). They serve as Neely’s main sources for the second in this area (p. 9). As a result, in Southern Rights, Neely
half of the book.
seems to overstate the extent to which historians today
2
H-Net Reviews
characterize Davis as being better on civil liberties. [3]
the Failure of Confederate Nationalism, 1978.
Still, with this book Neely has not only clarified our
perception of civil liberties in the Confederacy, but also
deepened our understanding of Jefferson Davis as a president devoted foremost to the survival of his country and
of a Southern society not nearly as “obsessive about liberty” as previously thought (p. 79). This excellent book
may be too hard for undergraduates, but for more advanced scholars of legal, Southern, and Civil War history,
it is a must-read, although you may find yourself pulling
The Fate of Liberty off the shelf for another look after you
do.
[2] For example, Neely posits that part of Chief Justice
Pearson’s anomalous wartime opposition to Confederate
restrictions on civil liberties grew out of his antebellum
Whiggish opposition to Democrats like Jefferson Davis.
[3] Richard Bensel, Yankee Leviathan: The Origins of
Central State Authority in America, 1990). In fact, almost
all of the histories of the Confederacy Neely cites came
out before The Fate of Liberty.
Copyright (c) 2001 by H-Net, all rights reserved. This
work may be copied for non-profit educational use if
proper credit is given to the author and the list. For other
permission, please contact [email protected].
Notes
[1] Paul Escott, After Secession: Jefferson Davis and
If there is additional discussion of this review, you may access it through the network, at:
https://networks.h-net.org/h-south
Citation: Jeffrey W. McClurken. Review of Neely, Mark E., Jr., Southern Rights: Political Prisoners and the Myth of
Confederate Constitutionalism. H-South, H-Net Reviews. January, 2001.
URL: http://www.h-net.org/reviews/showrev.php?id=4807
Copyright © 2001 by H-Net, all rights reserved. H-Net permits the redistribution and reprinting of this work for
nonprofit, educational purposes, with full and accurate attribution to the author, web location, date of publication,
originating list, and H-Net: Humanities & Social Sciences Online. For any other proposed use, contact the Reviews
editorial staff at [email protected].
3