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
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. 
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 Union.
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. 
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 constitutions.
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. 
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.
 Paul Escott, After Secession: Jefferson Davis and the Failure of Confederate Nationalism, 1978.
 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.
 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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Jeffrey W. McClurken. Review of Neely, Mark E., Jr., Southern Rights: Political Prisoners and the Myth of Confederate Constitutionalism.
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