Southern Rights

Southern Rights: Political Prisoners and the Myth of Confederate Constitutionalism. By Mark E. Neely Jr. A Nation Divided: New Studies in Civil War History. (Charlottesville VA: University Press of Virginia, 1999. Pp. 1-173.)

After the Civil War, as the Lost Cause took hold, the South raised the banner of constitutionalism and began to identify itself as strictly protecting constitutional liberties. In Southern Rights: Political Prisoners and the Myth of Confederate Constitutionalism, Mark Neely challenges this image. Despite antebellum paeans to liberty, the Confederacy repeatedly restricted civil liberties and imprisoned problematic citizens. Neely argues that the South restricted individual liberties in the same ways modern democracies often do in wartime, and that most Southerners readily accepted impositions on civil liberty in the name of winning the war. Historians have overlooked this reality partly because Confederates deliberately retooled their image after the war, but also because the records of Confederate political prisoners did not appear with other prison records. The evidence exists in letters to Confederate secretaries of war, simply filed alphabetically as normal letters. For this study, Neely located names of 4108 prisoners, but evidence suggests many more political prisoners endured Southern prisons.

Several early examples demonstrate both the desire of Confederate authorities to impose order and the willingness of Southern people to accept many such measures. Neely opens with a discussion of the War Department’s domestic passport system. Guards searched train passengers and manned checkpoints at crossroads. Southern citizens needed papers to travel in much of the Confederacy – a requirement resembling the travel passes issued to slaves. Few Southerners protested the system and some actually called for stricter domestic security measures. Neely cites General Thomas Hindman’s efforts to maintain order in Arkansas, while so extreme that they stirred some protests, as a microcosm of problems the Confederacy at large faced. Hindman clamped down on civil liberties in order to mobilize resources, modernize the state, and promote needed war industries. Prohibition, implemented sporadically by state legislation or martial law throughout much of the Confederacy, represented another element of modernizing social controls. Some people even petitioned for martial law to implement prohibition, hinting at popular desire for the government to enforce order that run counter to the Lost Cause’s exaggerated devotion to individual liberty.

Neely also examines key figures in the Confederate legal system and how they related to civil liberties. There were a few troublemaking lawyers, but legal defenses of libertarian ideals were neither frequent nor notable in the South. Southern judges, like the rest of their society, were not so obsessed with liberty as their rhetoric made out, and they valued order in time of war. Neely argues that one purported defender of civil liberties, North Carolina Supreme Court Chief Justice Richmond Pearson, represented an anomaly in Confederate jurisprudence. Pearson stood alone among the thirty-seven Confederate state supreme court justices (the highest judicial authorities in the South), the exception that proves the rule. The South also established habeas corpus commissioners, men who had broad powers to evaluate prisoners and decide their fates. There were no trials; commissioners simply examined prisoners and made decisions. Habeas corpus commissioners showed a marked tendency to target those who expressed political dissent.

Political prisoners tended to come from border states or areas near military fronts, and while many were conscripts or deserters, a sizeable portion faced arrest mainly for their dissenting political views. Central authorities doubted the loyalty of people on the geographic and social fringes of the South and tended to target men who had any record of favoring Union or opposing secession. In eastern Tennessee, a region with strong pro-Union sentiments, the Confederate government showcased its willingness to set aside liberty in the name of internal security. Conscription especially stirred resistance from the region’s residents. In contested regions like North Carolina and western Virginia, the Confederate government also readily imprisoned people for suspected Union sympathies. The Alien Enemies Act of 1861 permitted the government to arrest foreigners, which in practice meant anyone categorized as a Northerner. True foreigners such as Europeans sometimes faced efforts to force them into the army.

North and South were more alike than different in how they handled civil liberties during the war. A final chapter examines how, though Jefferson Davis preened himself for respecting liberty more highly than Abraham Lincoln, in fact the Confederate president chafed under constitutional restrictions on his power at least as much as his Northern opponent. Neely presents a striking abandonment of civil liberties themes from Davis’s rhetoric and policies as the war progressed. Davis used civil liberties rhetoric to try to attract the border states early in the war, but over time showed complete willingness to suspend the writ of habeas corpus and impose martial law. While the topical nature of the book occasionally leaves it feeling disjointed, this incisive study warrants scholarly attention for the challenge it offers to previous interpretations of the Confederacy.

Jonathan T. Engel

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Southern Rights: Political Prisoners and the Myth of Confederate Constitutionalism. By Mark E. Neely Jr. A Nation Divided: New Studies in Civil War History. (Charlottesville: University Press of Virginia, 1999. Pp. viii, 212.)

Mark E. Neely, Jr. believes that existing Civil War scholarship has misinterpreted Confederate constitutionalism. His book, Southern Rights, explains that civil liberties were severely restricted in the Confederacy during the war and that southerners were generally willing to sacrifice their liberty for the sake of security. Neely uses the records of over four thousand southern political prisoners to analyze the Confederate judicial system. He claims that the existence of so many civilians in military prisons “reverses our basic understanding of the Confederate cause” (1). Rather than protecting the rights of citizens, Confederate officials were quick to curtail civil liberties and imprison troublesome critics of the government. Most scholars concur that Lincoln’s actions restricted civil liberties in the North to a greater degree than Davis did in the South, but Neely argues that liberty was more repressed for longer periods and in more places in the Confederacy than previously understood.

Neely arranges his book into four topical sections. Part I examines the implementation of martial law in Confederate states. Neely situates his discussion of martial law in the historiographical debates over modernization in the South. He claims that modernization went “hand in hand with proscription of civil liberty” (10). This “modern” interpretation suggests that the creation of a strictly regulated system of law and order during the war transformed the South from a confederation into a modern, centralized state. Neely uses the example of General Thomas C. Hindman’s “reign of terror” in Arkansas to show that his departure from the path of southern rights “blazed the trail for Confederate policy” (28). In Part II, Neely turns to an investigation of the Confederate bench and bar, subjects he believes are underdeveloped in existing scholarship. He finds great varieties of legal experiences in the South, asserting that the behavior of the Confederacy’s lawyers in dealing with war questions “ran the gamut of possibilities” (62). Some judges and lawyers protected citizens’ liberties and others defended the state. Although the South’s legal system remained adequately intact during the war to ensure protection of civil liberty, Neely concludes that defenses of individual rights “seem none too numerous or prominent” in the Confederacy because “the bar was largely complicit with Confederate government power” (63). North Carolina was a noteworthy exception, Neely observes, because its chief justice was sympathetic to citizens on questions of civil liberty. In his analysis of habeas corpus commissioners, Neely shows that commissioners successfully freed the innocent but also worked within a military framework and caused many prisoners to be held indefinitely. He asserts that the commissioner system acted as “a personnel office for the War department” by disciplining people and rehabilitating them for service to the state (97).

Part III studies the process of quieting dissent among antigovernment and anti-Confederacy southerners in east Tennessee and in west Virginia. This section also discusses the deteriorating individual liberty of people on the margins of southern society, including Indians, blacks, the poor, immigrants, and the insane. Neely concludes that the “blackout of civil liberty” that occurred in these areas compared to the drastic measures Lincoln employed to deal with dissent in the North. The last section of the book continues the comparison between northern and southern policies by analyzing Jefferson Davis and the writ of habeas corpus. In attempting to contrast himself to Lincoln, Davis boasted of citizens’ liberties in the South. Neely argues that in reality the two presidents took similar stances on individual liberty during war. Because they were both obsessed with winning the war, they both showed “little sincere interest in constitutional restrictions on government authority in wartime” (167).

Strengths of Neely’s book include his discussion of historiography and his identification of misinterpretations and gaps in scholarship—there appear to be many in the subject of southern political rights. For example, he identifies the need for a basic study of the southern bar and the lack of an adequate history of the southern legal system in comparison to the national system (43). Neely views his study as an initial step towards filling in and correcting existing histories of southern constitutionalism. He recognizes that the subject is a difficult one because of obscured sources and the entrenched image of the South as a unified region dedicated to constitutional protection of southern rights (an idea promoted by Lost Cause mythology). Although more thorough analysis is needed on the subject, Neely reveals that traditional perceptions of southern constitutionalism are false. He successfully shows that, although southerners valued both liberty and order, war tipped the political scales toward order. Many citizens were willing to go along with the system that emphasized order, as did most lawyers and judges. The Confederacy, like the Union, restricted civil liberties and subverted constitutionalism in order to survive.

Jensen Branscombe Texas Christian University

Southern Rights: Political Prisoners and the Myth of Confederate Constitutionalism. By Mark E. Neely, Jr. Charlottesville (VA): University Press of Virginia, 1999.

According to Lost Cause mythology, Abraham Lincoln’s suspension of habeas corpus proved conclusively that the Union cared little for individual rights; the Confederacy, by inverse correlation, fought the war exclusively for the protection of such rights. Indeed, Southern politicians articulated similar claims during the sectional crises leading to the Civil War, and recalcitrant Redeemers preached the same gospel during the era of Reconstruction. Unfortunately for the durability of this mythology, Mark E. Neely, Jr. notes that the Confederate army began arresting civilians for their political views – making them political prisoners – on 14 April 1861, before Lincoln’s first call for troops. This presages the conclusion of Neely’s research into some 4,000 Confederate political prisoners: During the war, southerners actually became more like slaves in the antebellum south, as they “almost daily…faced the test of their willingness to sacrifice [individual] liberty” (2) to the Confederate cause.

Neely offers several disparate examples that all speak to this same general assessment of “southern constitutionalism.” In Arkansas, General Thomas Hindman purposely sacrificed civil liberties to forcibly turn the state into a modern economy capable of producing war materiel. Among other policies, this included the establishment of martial law and the forced burning of virtually all of the state’s cotton crops. While Albert Pike complained that Hindman’s actions established a “reign of terror” (quoted, 22), Neely asserts that Hindman was not an outlier but rather that he “blazed the trail for Confederate policy” (28). Indeed, martial law followed in many other Confederate states, driven in many cases by opportunistic prohibitionists. Private citizens as well as military officers believed prohibition the best course for the Confederacy, as it conserved grain and preserved the fighting efficiency of their men in uniform. Prohibitionists found that “state legislature[s]…would respond…but the quickest results came from the imposition of martial law” (37) and thus, necessarily, the suspension of the constitutional rule of law. Virginia statesman Robert Collier and even Confederate Vice President Alexander H. Stephens obliquely attacked martial law and defended civil liberties, yet Neely accurately and insightfully argues that “the willingness to embrace such a means in a people allegedly wed to constitutional form is surely a sign of a deep longing for order” (42).

Indeed, Neely’s examination of the Confederate legal system indicates a similar understanding of “order.” While the bar and bench should have been natural progenitors of vocal defenses of civil liberties, such were the exception rather than the rule. For instance, Richmond M. Pearson, a justice on the NC State Supreme Court, stands as a singular example of civil libertarianism on the Confederate benches; otherwise, the Confederate legal system “by omission or commission, upheld order” (78) at the expense of individual freedoms. Jabez L.M. Curry offers Neely an example of this dichotomy. Curry served during the war as a “habeas corpus commissioner,” whose powers to conduct ad hoc trials mirrored the much-criticized (by the South) Union practice of military tribunals. In his post-bellum opus, Civil History of the Government of the Confederate States, Curry blasts such Union policy while conveniently omitting his participation in a fundamentally similar system.

In examining the records of some 4,000 civilian prisoners – most of whom were held near Richmond, and had their cases covered by the newspapers frequently read by Confederate politicians – Neely concludes that the Confederacy blatantly suppressed civil liberties and in the process took “political prisoners.” Authorities in east Tennessee routinely jailed Union sympathizers, paroling them only into the ranks of the Confederate army. Habeas corpus commissioners acted similarly in western Virginia and parts of North Carolina, routinely gauging a prisoner’s fitness for parole against his political beliefs. “Enforcers” in the countryside routinely entrapped locals by posing as Federal cavalrymen demanding food; if the civilians – at gunpoint – cooperated, these “Rangers” imprisoned them as Unionists.

A final and decidedly convincing example of Neely’s thesis comes in the examination of Jefferson Davis. The Confederate president spoke of civil liberties only during the first phase of the war, as he actively recruited the vital border states to the Confederate side. By 1863 this was itself a lost cause, and thus “civil liberties were increasingly in the way of the policies Davis felt necessary to save what was left of the Confederacy” (165). While “historians subsequently adorned the whole southern people with the mantel of Davis’s [alleged and self-proclaimed] constitutionalism,” (168) the Confederate record of martial law and political imprisonment exposes the fallacy of this lionization.

Neely admits that many of these policies were necessary for the war effort. The important contribution of this work is that these attitudes and policies clearly conflict with the Lost Cause mythology too often tacitly accepted by historians in assessing southern constitutionalism.