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
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
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.
Fate of Liberty: Abraham Lincoln
and the Civil Liberties. By
Mark E. Neely, Jr. (New York:
Oxford University Press, 1991, Pp. xvii, 278)
few incidents threatened the stability of the nation as much as the Civil War. In trying to meet this threat, Abraham Lincoln took several
actions to preserve the Union, which ultimately threatened the civil liberties
of many Americans. Looking at this
threat, Mark E. Neely investigates the military authority’s civilian arrest
records after the suspension of the writ of habeas corpus, which is a writ
ordering a detained person to be brought in front of a court to decide whether
the detention is lawful. His book, The
Fate of Liberty: Abraham Lincoln and the
Civil Liberties, examines the impact of Lincoln’s policies on American
author begins by discussing the first suspension of habeas corpus in Maryland
and the subsequent arrest of Maryland legislators in the summer of 1861.
Preoccupied with New England and the United States capital, Neely charges
that President Lincoln did not act decisively and allowed military commanders to
infringe on the civil liberties of Missouri citizens.
Neely believes that if history could expunge the actions taken in
Missouri the administration’s record would vastly improve.
The Habeas Corpus Act of March 3, 1863, and Union General Ambrose
Burnside’s arrest of Ohio Democrat Clemet L. Vallandigham punctuated what
Neely considers the low tide of liberty in American history.
Much like the military line and the Southern armies, the suspension of
habeas corpus continued to move deeper into the Confederacy as the war
progressed. While trying to curb
desertion within the Federal Army, the Union resorted to torturing suspected
deserters, which led the British Ambassador to the North, Lord Lyons, to
reprimand the United States for allowing several British subjects to be
tortured. Neely reviews the surviving records, aggregate prison
statistics, and manuscript sources to compute the number of the military’s
civilian arrests and concludes that a precise figure does not exist. Next the author delves into the laws of blockades and guided
blockade-runners. He reasons that,
“American generals and statesmen usually sought to live up to the standards of
international law”(p. 159). Looking
at martial law and the trials by various military commissions the author
realizes that judicial decision of Ex
parte Milligan in which the court ruled that more than a threat of invasion
is necessary to warrant Martial Law “had little effect on history” (p. 184).
Neely believes that Democratic opposition as personified by New York
politician Horatio Seymour kept the Republican Party honest and helped to
preserve wartime America’s civil liberties.
Finally, Neely attempts to evaluate Lincoln’s influence on American
civil liberties by judging his political tendencies and his stances on the
constitutionality of slavery and war.
the beginning of the book when the author tries to establish Lincoln’s views
on justifying the writ of habeas corpus he paints an incongruous image.
At first, the author questions the authorship of Lincoln’s October 14,
1861, proclamation in which the president authorized General Winfield Scott and
anyone under his authority to suspend habeas corpus. Neely concludes that because Lincoln allowed someone else to
write the order the president showed “a sure sign of indifference” (p. 14).
This seems to contradict the image of Lincoln the author portrays in the
end of the chapter. When discussing
Lincoln’s relationship with William H. Seward, the author states that the
president “willingly handed over” the conduct of American foreign policy
“to his able secretary of state” (p. 23).
Here it seems as if Neely approves of the president’s delegation of
authority in matters in which he is deficient as opposed to chiding him for
“indifference” when the president issued the October 14 proclamation.
Lincoln like many people is a complex figure, but the charge of his
“indifference” in the proclamation of October 14 contradicts and belies the
exacting and meticulous man that the rest of the book portrays.
E. Neely’s examination of Lincoln’s policies’ impact on American civil
liberties is lucid and well argued. He
shows the many ramifications due to the administration’s decisions.
Neely historiographical discussion of literature on the Civil War’s
impact on civil liberties will aid future historians who are interested in this
tracing the impact of habeas corpus on wartime. As the first person to examine the military arrest records of
civilians after Lincoln suspended the writ of habeas corpus, Neely’s
contribution to Civil War scholarship cannot be overlooked.
The Fate of Liberty:
Abraham Lincoln and the Civil Liberties provides an excellent study
for Civil War historians and anyone interested in civil liberties.