Southern Rights: Political Prisoners and the Myth of Confederate Constitutionalism. – Review

Southern Rights: Political Prisoners and the Myth of Confederate Constitutionalism. – Review – book review

Edward Jr. Steers

Southern Rights: Political Prisoners and the Myth of Confederate Constitutionalism. By Mark E. Neely Jr. (Charlottesville: University Press of Virginia, 1999. Pp. 240. $35.00.)

One of the shibboleths that keeps creeping into Civil War discussions is the claim that “Northern” historians have written their own version of the war, to the detriment of the South and Jefferson Davis. According to this school, Yankee historians have softened Abraham Lincoln’s abuse of civil liberties while ignoring Davis’s unwavering support of such liberties even in the face of defeat. Neo-Confederates point out that Lincoln would subvert the constitution rather than lose the war, while Davis would lose the war rather than trample on the civil liberties of his fellow citizens. After reading southern-born historian Mark E. Neely’s latest book, these neo-Confederates may want to stick with Yankee historians for their history.

In Southern Rights, Professor Neely does away with much of the soft history that surrounds Jefferson Davis in his treatment of civil liberties. According to Neely, Davis was not nearly the champion of civil liberties that many students of the war have come to believe. Like Lincoln, Davis faced unique problems brought about by civil war, and like Lincoln, dealt with them in ways unheard of in peacetime.

In 1991, Neely explored Lincoln’s constitutional policies in his Pulitzer Prize-winning book, The Fate of Liberty In Southern Rights, he closes the ring on his study of civil liberties by turning his attention to Jefferson Davis and the Confederacy. Neely approaches his study with a broad brush, examining the problems of administering the law at several levels. These include the individual approach to justice under Gen. Thomas C. Hindman in Arkansas, and North Carolina’s supreme court justice, Richmond M. Pearson–the first a “rogue tyrant,” the second, a strict constitutionalist; the law as practiced in remote areas beyond the reach of Richmond, such as the trans-montane of Virginia (West Virginia); and Jefferson Davis’s handling of arbitrary arrests and the writ of habeas corpus.

Davis faced serious problems with dissent and lawless behavior which ranged from draft dodgers to alcohol-induced pillage to sabotage. While Lincoln used executive orders to suspend the writ of habeas corpus, Davis used the Confederate Congress to authorize his suspending the writ but continued to try to keep offenders in prison during periods when congressional authorization had lapsed. While the Lincoln administration used military commissions to deal with perceived enemies of the state, Davis dealt with them through habeas corpus commissions. Like Lincoln, Davis took those steps he deemed “expedient” to carry on his war policies all the while excoriating Lincoln as a despot for dealing with similar problems in similar ways. For those swept up and thrown into prison, the effect was the same.

While there were many simliarities between the North and the South in administering wartime justice, there were also differences. One procedure used throughout the Confederacy but not in the North was a system of “passports,” which rigidly controlled the movement of all civilians. The requirement that white citizens carry passports was similar to the system used in the antebellum south to regulate the movement of blacks. Odious as this system was, it was generally accepted by most Southerners with a minimum of grumbling.

Both Davis and Lincoln focused attention on the border states of Kentucky, Maryland, and Missouri. These states were crucial in deciding the outcome of the war. Davis’s effort was on drawing these states into the Confederacy, while Lincoln’s effort was on keeping them out. It was here that the bulk of the arbitrary arrests under Lincoln occurred, and for good reason. Neely points out, “Davis became a salesman; Lincoln became a warden or truant officer.” Davis could wear his constitutional robe when addressing the problem, while Lincoln was forced to play a heavy hand. Neely concludes that historians have viewed this difference between Lincoln and Davis in dealing with the border states as reflecting a basic difference between the two presidents in political philosophy. After reading Neely’s explanation, it becomes clear it was not.

While Davis preached a “holier than thou” sermon, he soon succumbed to reality. On February 28, 1862, he suspended the writ of habeas corpus, which only one year earlier he had declared was a right “sacred to freemen.” Imprisonments increased significantly without the pesky writ to get in the way. While the North saw the arrest of approximately thirteen thousand civilians as “political prisoners,” Neely uncovered the records for 4,108 “political prisoners” under Davis’s brand of justice. On a per-capita basis, the two figures are very close. In the end, we learn that civil liberties were a casualty on both sides. Should anyone be surprised?

In Southern Rights, Neely has again produced a book that is both original and informative in a crucial area of the Civil War that has seen more myopia than scholarship. He presents us with a clear and scholarly explanation of this poorly understood aspect of fighting a war and fills a void that has been too long misunderstood. This is an important book, one that should be on any Civil War scholar’s “must read” list.

EDWARD STEERS JR. Berkeley Springs, W.V.

COPYRIGHT 2000 Kent State University Press

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