How Not to Be a Confederate Soldier: Civil War Writs of Habeas Corpus from Richmond City and Petersburg

Why didn’t men fight in the Civil War? It’s not the most popular question that gets brought up during discussions of America’s bloodiest war, but it is a significant one. After all, if there was one common force that united men across the battlefield, it was how badly many of them did not want to be there.

Military deserters were a major problem for both the Confederacy and the Union—in Virginia alone, the desertion rate ranged anywhere from ten to fifteen percent—but it was especially challenging for the Confederate army, which had a much smaller population to pull from. Desperate to fill out their forces, the Confederate Congress passed the Confederate Conscription Act of April 1862. It was the first draft enacted in American history. The deeply unpopular act mandated military service for every man in the Confederate States between the ages of eighteen and thirty-five who did not fall within a limited set of exemptions. Failure to comply could potentially be met with anything from physical punishment to death by firing squad.¹

Even men who did qualify for exemptions could be arrested and conscripted anyway. They were then left with little option but to petition their local and state courts from the battlefield. At the Library of Virginia, the Petersburg (Va.) Writs of Habeas Corpus, 1842-1865 and the Richmond (Va.) Ended Causes, 1843-1866 (bulk 1860-1866) include many such petitions for writs of habeas corpus created throughout the Civil War. Both collections offer a glimpse into the many methods men used to attempt to leave the Confederate Army, and the many reasons why they were (or were not) successfully able to avoid the fighting.

Writs of habeas corpus are a kind of legal protection guaranteed by Article I, Section 9 of the U.S. Constitution. When a person is being held in official custody, a writ forces the official or group holding them to allow them to appear in a court of law and prove whether or not their detainment is justified. In military matters this can include both military prisoners challenging their arrest and soldiers challenging their continued service.²

Military writs of habeas corpus are typically filed in military courts, but they can make their way into local courts during periods when localities have had to create their own regiments or militias. For example, the city of Petersburg created a local infantry to fight in the Mexican American War. Many records from the Petersburg (Va.) Writs of Habeas Corpus, 1842-1865 during this period are petitions from the families of the reluctant “volunteers” fighting in Mexico, seeking to have their family members removed from the company and returned to Virginia. Claims ranged from the young men having been too young to enlist, to them being non-residents of the city, to (most commonly) them having been plied with alcohol and tricked into enlistment by recruiters.

Sharp eyed readers might wonder—what does a protection from the U. S. Constitution have to do with the Confederate army? As it turns out, Article I, Section 9 of the Confederate Constitution is almost identical to that of the United States, aside from the inclusion of certain protections originally granted through the Bill of Rights and the addition of a clause preventing the government from abolishing slavery. That said, both the Union and the Confederacy would suspend the writ of habeas corpus at various points and in various places over the course of the Civil War.³

When Confederate soldiers could exercise their constitutional right to habeas corpus, they did so fairly frequently. Virginians who believed that they fell in the legal loopholes that exempted them from fighting submitted petitions for writs of habeas corpus to either local courts like Petersburg or to the Hustings Court and Judge’s Court (also referred to as Mayor’s Court) held in the city of Richmond.

Age – The original official cut-off for conscription was thirty-five to forty-five, depending on the type of service and time of enlistment. But records in these collections show men as old as seventy-five who had to produce proof of their age to avoid conscription.

On the opposite end of the spectrum, boys as young as fifteen were able to enlist early if their parents provided written letters of consent. Many young teenagers would forge parental consent letters, and their parents had to file writs of habeas corpus to challenge these letters if they hoped to bring their sons back home. Their success was mixed, especially in later years. One Petersburg boy, John B. Scurry, was only thirteen when he enlisted. His father petitioned for the court to end his son’s service after John sustained a major eye injury during the Battle of Williamsburg. His request was denied.

Residency – There were a surprisingly high number of non-residents of Virginia who found themselves serving in Virginia’s armed forces, even beyond the dubiously reliable substitutes—men from other Confederate states, from border states in the Union like Maryland, and even from European countries like Great Britain and Prussia.

Oftentimes these men had originally joined up willingly. William Behl, a Prussian expatriate turned Confederate soldier, proudly described enlisting in a Virginia militia company specially known as the “Foreign Legion” or the “German Home Guard.” But this initial enthusiasm eventually faded for Behl and many other foreign soldiers. In these cases, their best option was to present their non-residency to the courts as evidence, hoping it would justify their leaving Confederate service before the end of their official enlistment period.

Other non-Virginian petitioners just had the bad luck of existing in the state as men between the ages of eighteen and thirty-five. One South Carolina mail contractor named Robert W. Sutherland was arrested and conscripted two separate times when his duties brought him through Virginia.

Money – A few men were able to purchase exemptions. The Civil War was, after all, a rich man’s war and a poor man’s fight. Occasionally this involved men paying the government directly as a way to buy out their service.

A member of the Nazarene religious sect named Armistead Neale was one of the few who paid a then-hefty sum of $500 for a religious exemption. He was later arrested anyway and held at Castle Thunder, the infamous Confederate military prison in Richmond, until he could provide the court with proof of payment.

It was much more common for wealthy men to hire substitutes to enlist in their place. However, these substitutes—who were themselves exempt for reasons like age or non-residency in the state—had an unfortunate habit of taking the payment and then failing to appear for muster. The men who paid them were then forced to serve in their absence, and sometimes had to remain even when they could prove in their petitions that substitutes had been hired.

Occupation – Mail contractors like Sutherland were exempted from military service across all states in the Confederacy. Their profession was one of a handful that the Confederate government had deemed too important to either the military or civilian infrastructure to lose.

Other exempted professions included factory workers, wagon makers, steamboat operators, physicians, and elected officials. But, like Sutherland, a large number of these men faced conscription anyway.

Their petitions are full of evidence of their occupations, from election records to official correspondence. One petitioner, John Petross, was one of the only practicing physicians operating in Henry and Pittsylvania Counties at the time. Citizens across both counties signed petitions requesting his discharge from the Confederate Army. They argued that his services were too much of a necessity to the local community for them to lose him.

“Twenty-Slave Law” – In October of 1862, the Confederate Congress added a new exemption in the form of the “Twenty-Slave Law”. This law exempted from service any man who oversaw twenty or more enslaved people on a plantation. As fears of enslaved uprisings increased as the war progressed, this exemption was intended to provide supervision of and control over large groups of enslaved workers. At the same time, it also aggravated class and social tensions. Poorer farmers in particular noticed that it allowed many of the men who benefitted most from the war to avoid fighting in it.⁴ These tensions are reflected in the evidence and tone of the petitions for men requesting this exemption, which increased as the war progressed.

Beyond showcasing the arguments of Confederate soldiers seeking to return to civilian life, the records in these collections also shed light into the ways the lives of average civilians were affected by the Confederate army. The materials reveal instances where court cases were put on hold because the fighting was too close or because witnesses had been conscripted. Men were accused of being Northern sympathizers as evidence against them, and civilians were held on martial charges. The latter was especially common in Petersburg, which had martial law declared in 1862. Those martial charges ranged anywhere from selling alcohol to soldiers to helping enslaved people and military deserters cross Confederate lines.

For researchers interested in delving deeper into the experiences of Virginia’s reluctant Confederate conscripts and the communities they hoped to return to over the course of the Civil War, the Petersburg (Va.) Writs of Habeas Corpus, 1842-1865 and the Richmond (Va.) Ended Causes, 1843-1866 (bulk 1860-1866) are processed and open for research at the Library of Virginia.

For additional information on these records, please consult Petersburg (Va.) Writs of Habeas Corpus, 1842-1865 and Richmond (Va.) Ended Causes, 1843-1866 (bulk 1860-1866).