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FW: H-South Review: McClurken on Neely, _Southern Rights_

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  • A.J. Wright
    fyi...aj wright // ajwright@uab.edu ... From: H-South Review Editor Ian Binnington [mailto:binningt@uiuc.edu] Sent: Monday, January 22, 2001 6:56 AM To:
    Message 1 of 1 , Jan 22, 2001
      fyi...aj wright // ajwright@...

      -----Original Message-----
      From: H-South Review Editor Ian Binnington [mailto:binningt@...]
      Sent: Monday, January 22, 2001 6:56 AM
      To: H-SOUTH@...
      Subject: H-South Review: McClurken on Neely, _Southern Rights_

      Published by H-South@... (January 2001)

      Mark Neely, Jr. _Southern Rights: Political Prisoners and the Myth of
      Confederate Constitutionalism_. Charlottesville and London: University
      Press of Virginia, 1999. vii + 212 pp. Notes, index of political
      prisoners, and general index. ISBN 0-8139-1894-4.

      Reviewed for H-South by Jeffrey W. McClurken, jeffm@...,
      Department of History, Johns Hopkins University

      Civil Liberties in the Confederacy

      In _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).

      According to Neely, the significance of this work is that Lincoln's
      contemporary and historical reputation on this subject has been that of an
      authoritarian tyrant, while Davis has been portrayed (starting with his own
      history of the Confederacy) as a staunch defender of civil liberties and
      constitutionalism, even by those critical of his presidency like Paul
      Escott. [1]

      With _Southern Rights_, Neely proves that despite the public attacks of
      Davis and the Confederacy on the Union and Lincoln for their restrictions
      of individual rights, "[t]he two societies were more alike than unlike in
      the way they handled civil liberties" (p. 172). Using newly discovered
      records of over 4,000 civilians' arrest and detention, Neely demonstrates
      that the Confederacy restricted the rights of its civilians as much as the

      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, most Southerners,
      like Northerners, accepted the passport system, martial law and the
      suspension of the writ of habeas corpus as temporary, necessary measures to
      ensure stability and to help win the war.

      The book itself is split into four parts, with the chapters in each part
      introduced by a brief historiographical essay. Part One, "Liberty and
      Order," examines early restrictions on civil liberty in the wartime
      South. Chapter One, "The Rogue Tyrant and the Premodern State," explores
      the implementation of martial law in Arkansas by General Thomas Hindman in
      1862, as he organized wartime industries and military forces in an attempt
      to 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 Two, "The Confederate Bench and Bar," explores the wartime actions of
      Southern lawyers, judges, and the War Department on the issue of civil
      liberties. Looking mostly at War Department sources, Chapter Three,
      "Liberty and the Bar of the Confederacy," argues that Southern lawyers
      could have been much more zealous and vocal in their lawsuits, disrupting a
      Confederate government ill equipped to respond to such legal
      challenges. Because they do not, Neely suggests that the lawyers were
      "largely complicit with Confederate government power" (p. 63).

      Chapter Four, "The Peculiar Jurisprudence of Richmond M. Pearson," sets up
      the Chief Justice of the North Carolina Supreme Court as the exception in
      the Confederate judiciary, an active defender of civil liberties who
      challenged the constitutionality of conscription. Here, too, Neely points
      to the relative lack of challenge to Confederate restrictions of individual
      liberty. He acknowledges that restrictions of civil liberties brought on
      some complaints, but he suggests that most of them grew out of antebellum
      political divisions. [2]

      In Chapter Five, "Ghosts of the Dead Habeas Corpus," Neely explores the
      creators of over 4,000 records of Confederate political prisoners, a
      shadowy semi-official group of civilians working for the War Department
      known as the habeas corpus commissioners. With virtually no supervision or
      guidelines, these lawyers reviewed the cases of the civilian prisoners in
      Confederate military prisons, deciding whether to release them, send them
      to a civilian court for trial, or make no decision (leaving the prisoner in
      jail indefinitely). Neely concludes that, effectively, many of these
      commissioners served as "mobilization officer[s]," putting disloyal
      civilians in military service if possible and otherwise keeping them out of
      the way (p. 93). The commissioners' reports remained hidden "in plain
      sight" for many years as ordinary letters to the Secretary of War with no
      reference to their contents (p. 82). They serve as Neely's main sources
      for the second half of the book.

      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 anti-secessionists (p. 132). Chapter Eight, "A
      Provincial Society at War," builds on Carl Degler's _The Other South_ to
      examine civil liberties among the marginalized peoples of the South
      (including African Americans, pacifists, and Northern-born "alien
      enemies"), arguing that "by the end of the war the[ir] civil liberties ...
      were definitely deteriorating" (p. 150).

      In Part Four, "Jefferson Davis and History," Neely rejects the
      characterization of Davis as a defender of civil liberties that he claims
      historians have largely accepted, pointing out that despite his attacks on
      Lincoln's tyrannical behavior, Confederate military prisons had civilian
      inmates from the start of the war. In Chapter Nine, "Jefferson Davis and
      History," Neely convincingly argues that Lincoln and Davis both set their
      initial policy on civil liberties based on their attempt to win over the
      border states. Lincoln embraced restrictions on individual liberty to hold
      on to what the Union already controlled, while Davis spoke of sacred civil
      liberties in order to persuade the border states to secede as well. As the
      North invaded, however, Davis sacrificed individual rights to hold on to
      what remained of the Confederacy. Neely sees both men as willing to do
      anything to preserve their nation, even set aside their respective

      The book has a couple of problems. First, given the importance of the
      records of the habeas corpus commissioners, a set of tables or an appendix
      laying out the location of arrests, reasons for arrests, and prisoners'
      background would be helpful. Second, and perhaps more significant, Neely's
      problems with other historians' interpretations of Davis's stance on civil
      liberties may have more to do with the prevailing historiography on Lincoln
      before Neely's own _The Fate of Liberty_ came out, than with their views of
      Davis. Neely criticizes Escott and Richard Bensel for seeing a "sharp
      contrast" between the Lincoln and Davis administrations on civil liberties,
      yet both authors had published before Neely's own _The Fate of Liberty_ so
      skillfully reinterpreted Lincoln's actions in this area (p. 9). As a
      result, in _Southern Rights_, Neely seems to overstate the extent to which
      historians today characterize Davis as being better on civil liberties. [3]

      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.


      [1] Paul Escott, _After Secession: Jefferson Davis and the Failure of
      Confederate Nationalism_, 1978.

      [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

      [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_.

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