Mark E. Neely, Jr. The Fate of Liberty: Abraham Lincoln and Civil Liberties. New York: Oxford University Press, 1991. Pp. xvii+278

Abraham Lincoln, perhaps America’s best loved president, has an awkward record of infringement upon civil liberties during his wartime tenure. Much has been made of the precedent behind and principle of his suspension of certain civil rights during the Civil War, however as Mark E. Neely Jr. notes, “The tedious debate over whether or not President Lincoln’s policies were constitutional is a legacy of the brittle party platforms of a bygone era and the constitutional moralizing of sore losers… (p.xi).” Neely’s purpose is not to philosophize over the morality of Lincoln’s civil liberties record, but rather to “examine instead the practical impact on civil liberties of the policies that Lincoln developed to save the Union. (p.xi)” Neely’s effort involves the recording and analysis of common court cases springing from Lincoln’s policies in an effort to write a history of Lincoln’s civil liberties record from the “bottom up,” a rather novel concept as early as 1991. As a testament to Neely’s quality work, The Fate of Liberty was the 1992 Pulitzer Prize for history winner.

Neely’s work includes analyses of Lincoln Administration’s policies on civil liberties in Maryland and Missouri. In the former, the President masterminded a suspension of habeas corpus and arrested key secessionist leaders under suspicion that the Maryland legislature might pass an ordinance of secession. Neely argues that these two measures were key in maintaining Maryland’s membership in the Union, which would have been jeopardized otherwise. In Missouri, Unions troops seem to have persecuted civilians in order to cut down rates of violent activity, yet maltreated both secessionists and Union-sympathizers in the process. Neely harshly criticizes Lincoln essentially allowing these civil liberties violations by inadvertently failing to restrain the actions of local military commanders. Eventually in September 1862, Lincoln suspended the right of habeas corpus nationwide in particular cases, and the move was reinforced through the passage of two similar acts by Congress in March and September 1863. In May 1863, Ohio Copperhead Clement Vallandigham was arrested in violation of Lincoln’s principles restricting free speech and anti-war activity, and was denied a writ of habeas corpus. Neely also details arrests and trials of southern civilians, and northern businessmen and military officers guilty of wartime fraud, and punishments for deserters.

In his analysis of the Lincoln Administration’s wartime policies on civil liberties, Neely’s evidence from the bottom up prove the most noteworthy. He claims that numbers of arrests and detentions traditionally accepted by historians are low, though he states that because most records have been lost the accurate number of arrests under Lincoln’s policies will never be known. He argues that historians have had a tendency to focus on “disproportionately memorable” episodes like the Vallandigham case, while it is the more numerous “arrests of poor refugees and suspected bushwackers that have been lost to history (p.137)” 

Neely’s treatment of the 1866 Supreme Court case Ex parte Milligan is also unique. Traditional analyses of the case assume that it was a landmark victory for civil rights, since the Court attacked the policy of Lincoln Administration and outlawed martial law and military courts wherever a civilian court system was intact. However, Neely argues that “Despite its origins, the Milligan case had little practical effect (p.176),” essentially because the Court’s decision was not wide-reaching or determinative enough to protect civil liberties during the era of the world wars.

Neely’s most groundbreaking contributions in The Fate of Liberty are his use of evidence from the bottom up, and his reinterpretation of the Milligan decision. The work is well-researched, and offers a more comprehensive analysis of the Lincoln Administration’s policies on civil liberties than any other work, and by that notability earns its place in the historiography of the Civil War.

- Jonathan Jones

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The Fate of Liberty: Abraham Lincoln and Civil Liberties. By Mark E. Neely, Jr. (New York: Oxford University Press, c. 1991. Pp. xvii+278).  

            Lincoln’s record on protecting civil liberties has always appeared mixed at best, if it appears at all.  Mark Neely’s The Fate of Liberty attempts to address this historiographical gap.  The standard narrative regarding Lincoln’s activities during the war suffered from a lack of sources and the intense partisanship of those few accounts.  Defenses of Lincoln generally came from Republican sources, if they came at all, while Democratic accounts dominated the meager historiography.  These narratives charged Lincoln with restricting the liberties of civilians and ruling dictatorially.  Neely’s Pulitzer-winning work rewrites the story.  Lincoln and the Union army undoubtedly arrested a number of civilians, and acted in several dictatorial ways.  Neely’s work takes up the task of understanding and defending the President’s record on protecting civil liberties.

            Early in the war, Lincoln acted quickly to suspend the writ of habeas corpus in Maryland in order to maintain that state’s position in the Union.  Though initial criticisms surfaced, even Lincoln’s political foes felt the need to remark that the suspension held Maryland in the Union and did not prove wholly unnecessary.  In the same time period, though, Neely cites a number of incidents in Missouri where Union armies roughly treated civilians, including those who may have claimed Union sympathies.  This criticism also reaches Lincoln, as Neely chides the president for his indifference on the issue, allowing the army to act inappropriately, focusing too heavily on more local problems.  Greater attention to Missouri, Neely suggests, would improve administration’s record on civil liberties.  As the war progressed, the government further expanded the suspension of habeas corpus, providing more ammunition to Lincoln critics.  These expansions reached south with the advancing Union armies.  Neely offers the period of late 1862 to mid-1863 as liberty’s low tide. On September 24, 1862, Lincoln extended the suspension to the entire nation in certain cases, legitimized by Congress’ passage of the Habeas Corpus Act in March 1863.  Lincoln and the cabinet issued the Proclamation of September 15, 1863, reiterating the suspension and detailing its application to military affairs.  May 1863 also saw the arrest and imprisonment of Ohio Democrat Clement Vallandigham by General Burnside.  Though they considered Burnside’s action rash, the administration backed its general by stating Vallandigham’s arrest stemmed from activities detrimental to the war effort, and not due to the vocal Democrat’s political positions.

Rather than accept the un-sourced numbers of arrested civilians, Neely’s personal count reveals a much higher number of arrests than even some of the more critical accounts suggested, well over 4,000.  As the number climbed higher, Neely began to focus less on how many than on who.  Some of the more vicious historical criticisms fall away as Neely demonstrates individual arrests as the result of either overzealous authorities or civilians who provided obstacles to normal military activity.  Harsher military law applied to deserters, practitioners of fraud and draft protesters.  These practices occasionally included torture, especially of suspected deserters.  Some of these arrested and tortured civilians were foreigners and diplomats such as Lord Lyons protested.  Neely comments, though, that in spite of its harshness, the Union government’s policy followed the accepted international law in cases where it applied.

            Neely also takes a look at the case most usually cited against Lincoln, Ex parte Milligan.  Decided by the Supreme Court during Reconstruction, the Milligan decision ruled courts martial unconstitutional in places where civilian courts still existed.  Though celebrated by historians and constitutional scholars as a landmark defense of civil liberties and rebuke of Lincoln, the Milligan decision had little lasting effect.  It failed to effectively call into question the military trials of civilians during the war, undertaking after military arrests, and failed to protect civilians against arguably worse restrictions during the two World Wars.  In looking at the various forms of dissent, he also extends credit to Democrats for protecting civil liberties.  Neely singles out New York governor Horatio Seymour in particular, but on the whole the Democratic Party kept Lincoln’s record honest and helped to maintain civil liberties.

            Neely’s account of Lincoln and civil liberties in the North holds an important place in the historiography.  The thoroughness with which Neely researched the issue provides a comprehensive narrative that discredits prior interpretations and establishes a new understanding of the period and its issues.  The greatest crime which the author can charge Lincoln with is indifference, though it is clear that the president struggled with issues of constitutionality and civil liberties.  Both the President’s own desires and outside political influences protected civil liberties, even though the need to successfully prosecute the war came first.  Neely concludes that the Civil War did not represent any great systematic curtailment of individual liberty, or the establishment of any proto-dictatorship.  Though it suffers from occasional dryness, this reinterpretation of an otherwise unexamined issue remains a critical piece of Civil War history.

Texas Christian University                                                                                             Keith Altavilla