Confederate Music and the Politics of Treason and Disloyalty in the American Civil War

On June 9, 1862, the New Orleans Bee heralded the arrival of "New Music" from local music-publishing firm Messrs. Blackmar & Co. The timing and content of the news item was provocative. After five weeks of Union army occupation under Major General Benjamin F. Butler and just two days after the execution of William B. Mumford for "tearing down the United States flag," the Blackmar brothers alerted readers to the availability of two already well-renowned Confederate songs: "The Bonnie Blue Flag" and "Maryland, My Maryland." The audaciousness of doing so would have been clear to readers at the time, who need only have diverted their attention two columns to the right to find the Bee's report of Mumford's execution.¹ Yet, despite efforts to suppress its use, secessionist music proved to be a stubborn mainstay of resistance to the Federal occupying force. And for many Confederates, the willingness of the United States military to regulate music was confirmation of their belief that the federal government was a threat to their personal liberty and the so-called southern way of life. "Was there ever such nonsense and such a want of pride and dignity," complained diarist Julia Le Grand at the thought of her New Orleans neighbors being put on trial for their singing; "I'm afraid Mrs. Stewart's daughters next door will be arrested some day, for their piano and mingled voices are continually doing duty to [a] contraband ditty."²

Less than three weeks later, the Democratic-leaning St. Louis Daily Missouri Republican announced the "Arrest of Balmer & Weber, Music Dealers" by order of Provost Marshal George E. Leighton and the closing of their establishment due to their involvement in the trade of "rebel music." The arrest occurred two weeks after Leighton had issued Order No. 834, which, in an effort to curb "malicious manifestations of disloyalty," singled out for rebuke "singing secession songs."³ Balmer and Weber, being vendors of secession songs such as "The Southern Confederacy March" and "Southern Rights Polka," were thus accused of circulating "signs of treason." According to a correspondent for the New York Tribune, the arrest of the well-known music publishers caused "whirls of excitement" in town, and though the correspondent could accept that Balmer and Weber "must suffer the consequences" of their actions, many locals in St. Louis were less convinced. The Daily Missouri Republican, incredulous at the harsh measures, declared the military government's handling of the affair "a musical humbug."⁴

Both episodes speak to music's now familiar presence in the political combat of wartime experience. But the phenomenon of Confederate musical arrests also raises questions: What made the sensory impact of Confederate music powerful enough to be considered a crime? Why did Confederates think it was a good idea to sing Confederate songs, even after they were banned by an occupying military government? And how did efforts to regulate Confederate airs bear on debates over the balance between rights and liberties in wartime? To answer these questions, I emphasize that ideas about the power of music before the Civil War muddied the boundaries of acceptable political action during the war, that cultural assumptions about gender, class, and music itself characterized how musical arrests played out on the ground, and that the Union army's attempts to suppress Confederate singing did not amount to an unambiguously effective policy. If anything, music-related arrests most clearly succeeded in providing critics of the Abraham Lincoln administration—both at home and abroad—with headline-grabbing evidence that the Union really was as repressive and unjust as they had feared. In all, Confederate musical arrests, as political reflections of power and its subversion, reveal how Confederate music helped shape the boundaries, experience, and outcome of Union occupation.⁵

That experiences of Union military occupation crystallized fundamental questions about gender roles, the purpose of a standing army, and the limits of American freedom and treason lies at the heart of an already impressive literature.⁶ We know that the actions of enslaved people and Confederate women upended long-held assumptions about their incapacity to participate in political action.⁷ We know that Union soldiers, in response, often chafed at the seemingly pedestrian task of policing noncombatants in garrisoned towns and cities and that they struggled to reconcile the duties of occupation with the ambitions of a citizen-soldier.⁸ And we know that the Union military's overall shift from a "conciliatory" approach to a more punitive "hard war" policy failed to overcome the animosity of Confederate civilians.⁹ At one level, evidence of Union soldiers' responding to incidents involving Confederate music corroborates many of these conclusions. In important ways, the existence of musical protest, particularly from women and children, and the idea that it required suppression exposed the limits of Union military power, challenged the social order, and confounded expectations that Union success on the battlefield would translate into Confederate defeat on the home front. At another level, however, evidence of Union attempts to regulate Confederate musical expression also underlines the extent to which these outcomes were a product of the Union's basic inability to separate the acceptability of Confederate patriotism from its treasonous implications. Music showcased just how difficult it was for the Union to counter the appeal of Confederate cultural symbols without simultaneously giving ammunition to charges of Union tyranny. This history, then, speaks to the deeply emotional terrain on which legal contests over Civil War loyalty played out and attests to the power of those emotions to frame the substance and significance of treason.¹⁰

The consideration of incidents regarding Confederate music in Unioncontrolled areas connects attempts to police loyalty in wartime cities to a growing effort to understand music's role in the conflict more broadly. Scholars have done much to highlight how songs worked as remarkably successful and accessible "cultural tools" that facilitated "overlapping communities" of belonging among combatants and civilians and how music could even help Union soldiers make sense of the southern environment by "render[ing] an alien land and people familiar."¹¹ It is clear, in short, that music mattered to all kinds of Civil War Americans regardless of how varied their experiences might have been. However, when it comes to Union occupation, existing characterizations of Confederate music remain oddly uniform: rarely is it portrayed as anything besides a last-ditch means of wartime resistance. Christian McWhirter, for instance, explains that white southern women used secessionist songs to attack Federal troops because it was "one of the only weapons available to them." E. Lawrence Abel claims that Confederate tunes like "Dixie" and "The Bonnie Blue Flag" constituted a "powerful musical weapon for arousing patriotic and martial feelings." And James A. Davis contends that at moments when military and civilian lives merged (as during periods of occupation), when "the 'old times' were gone," then "the comforting music of the civilian community must become a tool of war."¹² Yet, as much as music was capable of becoming a tool of war for disempowered Confederates, this was not its only purpose.¹³ Confederate music was also patriotic music, and, as a result, Confederate musical arrests were embroiled in contentious debates over the nature of loyalty and sedition, the types of people capable of treason, and the lawful limits of rights and liberties during civil war.

In this sense, an analysis of Confederate music in areas under Union control speaks less to music's inherent ability to enable traditionally less powerful members of society to effect change than it does to the politics of policing disloyalty. To that end, a host of studies on the southern home front have usefully dismantled clear-cut distinctions between combatants and noncombatants and between home fronts and battlefields—even to the point of questioning whether the concepts themselves are appropriate.¹⁴ Yet Americans at the time did often talk and act like these distinctions were meaningful. As Amy Murrell Taylor has put it, Civil War Americans "continually defined and redefined, in explicit language, what was 'private' and what was 'public,' what was 'domestic' and what was 'military' or 'political.'" Moreover, as William A. Blair points out, their decisions "invariably broke down the ideological barriers between public and domestic worlds."¹⁵ But contemporaries of the war did not necessarily understand their actions in these terms. When Julia Le Grand expressed indignation at the threat of neighboring women and children being arrested for singing Confederate songs, she was not concerned about being denied a new avenue of political influence; she was concerned about losing access to a form of expression she and her compatriots already felt entitled to use. Accordingly, Confederate musical arrests point to the extent to which boundaries between public and private, and military and civilian, experience were important—not because they technically existed but because their porousness allowed all kinds of Americans to define and redefine their location.

Sixty cases of Confederates being arrested, punished, or getting away with singing, selling, or publishing rebel songs in Union-controlled border towns or occupied cities underlie this story.¹⁶ Accounts of these incidents are drawn from a combination of newspaper reports, provost marshal records, and diaries hailing from a total of ten different towns between February 1862 and May 1865. Within these parameters, however, there are notable concentrations of evidence from particular times and places. Most of the arrests included took place after May 1862 and before August 1863—during a portion of the conflict wherein the threat (or the promise) of Confederate victory was most widely felt.¹⁷ Confederate music did not stop once chances of battlefield success had dwindled, but the perception of southerners fighting for a lost cause did, ironically, make it less common for Union officials to take the danger of Confederate music seriously.¹⁸ Geographically, two-thirds of the musical incidents in question took place in New Orleans. Towns other than New Orleans, particularly St. Louis and Baltimore, witnessed fewer numbers of the incidents for which evidence is offered, but their significance as measured by the level of national and international debate they attracted was often higher.¹⁹ By including material from across these different locations, the evidence speaks to how longstanding assumptions of who and what could wield political power collided with—and sometimes transcended—local variables and wartime contingencies.

Naturally, the sources underlying these musical incidents pose a range of interpretive challenges. Diarist testimony of musical confrontations can be personal, self-serving, and idiosyncratic, while Union military records, though voluminous, were liable to overlook the importance of documenting music-related incidents in the first place.²⁰ Newspaper reports, meanwhile, despite being highly partisan and sensationalistic, help pick up the slack. Court reports in particular—alongside columns advising readers of the arrival of letters at the post office, passengers on the latest ship, marriages, deaths, and new goods for sale—provided readers not only with political knowledge but also with the kinds of fact-based local knowledge (including gossip) that greased the wheels of day-to-day life. Who was in town? Who was in trouble? Who had the best new stock of shoes or sheet music? These details, often relayed cursorily, are capable of pointing to the existence of confrontations, like music-related arrests, that were not necessarily deemed significant enough to produce recoverable official records. Equally, at a national and an international level, newspapers shed light on how news of these musical arrests, or the musical protests that preceded them, was conveyed to and received by audiences in and outside the United States.

Even given these limitations, it is possible to quantify the evidence at hand to sketch the broad demographic contours of individuals involved in Confederate musical incidents and the results of their cases. First, it was more common for men and adults to be involved in music-related cases than women or children, despite the reputation the latter group has earned for turning to music to express themselves during the war (Figures 1 and 2). In fact, nearly the same proportion of males and females arrested for a musical reason subsequently managed to avoid further punishment. Compared with males, however, women, children, and young offenders were more likely to get away with music-related offenses by not getting arrested in the first place (Figures 3, 4, and 5). Second, the most common outcome of Confederate musical incidents involving Union authorities was for offenders to be both arrested and punished (Figure 6). Yet, when categorized by class, it was more likely for high-class offenders to elude punishment than middling and lower-class persons, who had close to a fifty-fifty chance of being granted leniency (Figure 7). Finally, the scope of punishments levied on musical offenders varied widely. The most popular punishment was thirty days in jail, though sixty days in the workhouse was a possible sentence, as were monetary fines ranging from five to fifty dollars, being paroled or forced to take a loyalty oath, and banishment (Figure 8).²¹ The total number of musical arrests made during the American Civil War is elusive and ultimately less important than the fact that only a handful of high-profile cases were needed to spark controversy and debate. However, if estimated conservatively, music-related arrests during the Civil War had to number at least in the hundreds.²²

What is certain is that military arrests of civilians for ostensibly political reasons, like singing a Confederate song, were not unusual under Union military governments. And neither were such arrests a new phenomenon: examples of judicial proceedings against "Seditious Songs" in British American colonies can be traced at least as far back as 1734, while the antebellum legal landscape was flush with incidences of individuals who had disturbed the peace with noise or "obnoxious songs."²³ But the processes, procedures, and scale of political arrests under martial law during the Civil War remain difficult for historians to recover with accuracy.²⁴ In some cases, military tribunals or commanding officers considered cases where individuals had been charged with patently serious military-related offenses like destroying bridges, engaging in guerrilla warfare, and spying. Other cases brought before the same courts involved seemingly less

Figure 1.

Cases by Gender

Note: n = 60.

Figure 2.

Cases by Age

Note: n = 60.

Figure 3.

Results of Male Cases

Note: n = 32.

Figure 4.

Results of Female Cases

Note: n = 25.

Figure 5.

Results of Youth and Child Cases

Note: n = 13.

Figure 6.

Results of All Cases

Note: n = 60.

Figure 7.

Cases and Punishments by Class

Note: n = 60.

Figure 8.

Scope of Punishments

Note: n = 60.

grievous accusations of treason and disloyalty such as displaying portraits of Confederate generals, giving a hurrah for Jefferson Davis, insulting loyalists because of their loyalty, or being in possession of "'treasonable' correspondence."²⁵ Music-related arrests clearly fell into this second category, but theoretically speaking the seriousness of the crime was always the same—sedition by any means was still sedition and could be punishable as such.

The scope and variety of seditious crimes derived from the fact that treason in the Civil War era encompassed a narrow legal definition as well as a more expansive popular one. As the only crime defined by the United States Constitution, treason technically meant to commit an "overt act" of war against the United States or to give "aid and comfort" to its enemies. But the evidence required to prove the charge was high: only a public confession or the corroboration of two witnesses willing to testify in open court could make a treason charge stick. The framers purposely set the bar this high to prevent charges of treason from being used for political reasons to suppress dissent. The problem, however, was that implied treason—that is, to act or speak in ways deemed detrimental to the republic—remained a popular touchstone for Americans, regardless of what the Constitution might have specifically said. So, when Unionists approached the question of how to identify and punish Confederate traitors, many found themselves attracted to the more broadly conceived definition of implied treason. In wartime, they reasoned, it was important to stamp out treasonous intentions before they morphed into treasonous actions.²⁶ Yet Confederate singing proved problematic because as patriotic music it was considered both an indispensable part of a united and harmonious society and an indispensable weapon of war.

By the Civil War, theories concerning the role and purpose of music in wartime were built on long-standing assumptions that music's martial influence was more than symbolic. In 1814, for example, the Baltimore American contended, "A well written song, to a good popular tune, will do more to excite martial ardour, than the most elaborate essay—There is an old adage, 'set the boys and girls to singing, and you will set the men to fighting.'"²⁷ Similarly, the New York Evening Post explained, "From the earliest days—from the times of Moses down to the present moment—no band of soldiers of any extent has undertaken a march without the enlivening influence of music." By 1854, the Musical World had claimed that "music is wedded to Mars": "In every nation, both in peace and in war, the soldier has sought its influence, and owned its sway." The article, moreover, attested to music's positive influence across every aspect of wartime experience from "peacetime parade[s]" and "country reviews" to the battlefield and the prison cell. "Through its influence," the Musical World concluded, even "the mortification of defeat is mitigated, and men, once hostile, become accordant in the bonds of a common brotherhood."²⁸

The tangible contribution of music in war was predicated not just on assertion but also on a deeper sense that the effects of music—however irrational, subliminal, or emotional—could be harnessed and deployed in calculated and rational ways. As Rebeccah Bechtold has shown, in the Revolutionary era it had been the science of sound, more so than music's artistic qualities, that helped Americans explain its power. And a similar distinction held true during the Civil War. Just as "An Essay on the Nature and Properties of Sound," included in William Billings's The New-England Psalm-Singer (published in 1770), suggested that music wielded power over listeners by vibrating the "auditory Nerve," so too did Louis Moreau Gottschalk, a famed New Orleans pianist, observe in 1865 that music "produces a pleasant momentary irritation of the nervous system" inside humans that "quickens the pulse, incites perspiration," and awakens "reminiscences, souvenirs, [and] associations." Notably, Gottschalk also argued that music was a "complex agent," by which he meant that, in the same way a serpent may be charmed into action by a flute, music possessed the power to have "a physiological action on the instinct, the organism, [and] the forces, of man."²⁹ Music, in other words, produced physical sensations that could influence human feelings and behavior in predictable ways. Accordingly, in 1860, Robert E. Lee encouraged his daughter not only to learn to "play well" on her piano but also to "take pleasure … in the Science [of music] itself," which, he added, is what "impart[s] true pleasure to those who hear you."³⁰

Importantly, this scientific focus on the involuntary bodily sensations aroused by music had long helped imbue music with democratic potential. For if music were just a set of audible vibrations, then it held that anyone capable of hearing was capable of being moved by it, regardless of one's wealth, status, talent, or taste. To that end, throughout the antebellum period an abundance of articles relating homespun tales about the effects of music on animals, stories of animals with supposedly miraculous talents for playing music, missionary reports of indigenous and exotic music, and testaments to the medicinal benefits of music on humans suffused the corners and columns of newspapers and music journals alike.³¹ For some, like John Adams's son-in-law William Stephens Smith, the accessibility of music made "hymns of Union" an attractive tool, as historian Kirsten E. Wood has written, "for captivating the mob."³² Others, however, viewed the utility of music's power less cynically (if no less politically in practice), believing that its sonorous tones could be deployed as part of a broader reformist agenda for national improvement and religious uplift. As Bartholomew Brown, editor of the Boston Musical Gazette, put it in 1838, "[Music] will not literally soften the rocks, or bend the hardy oak; but it will soften the soul;—it will harmonize the affectations, and change the purpose of one, who may be bent on some design most foul and disastrous!" For individuals, as with the nation at large, definitions of right and wrong lay in the eye of the beholder. But the idea of a harmonious nation heralded the prospect that the United States could resolve its differences by enabling its various and conflicting parts to unite in service of the whole.³³

On occasion, this connection between musical harmony and political harmony was articulated even more explicitly, particularly as sectional divisions hardened over the course of the 1850s. In May 1853, for instance, when the New York Musical World celebrated the growth of the American piano-making business, it did so not just on financial grounds but also in anticipation of the agreeable influence over public life that the spread of music was bound to have. The journal expected that "the Pianoforte crop of the North will [soon] exceed the Cotton crop of the South. Then, political economists will have a less discordant subject upon which to expend their learning and eloquence, and perhaps our national counsels will present the pleasing spectacle of 'honorable gentlemen,' from all parts of the country, engaged in acoustical, melodic and harmonious discussions and experiments." "When these tuneful days shall arrive," the Musical World predicted, "it is to be hoped that many of, if not all the discords which now rack the public tympanum, will be so 'prepared' and 'resolved' that they will no longer mar the harmony of our Federal organization, and sectional strifes be superseded by national concord." As idealistic as it sounds, it was at least theoretically possible because musical harmony was so widely thought capable of resolving dissonance in scientifically verifiable ways.³⁴

The power and presence of music during the Civil War were also informed by the fact that musical expressions of patriotism were considered deeply respectable activities. As one New York music journal proposed in its first issue in 1849: "The conservative and ennobling influence of Music upon a people" meant that all efforts to support music in the United States "should be looked upon not as a scientific undertaking merely, but as a philanthropic, nay more, a patriotic enterprise." Similarly, in 1861, Richard Grant White claimed not only that "[m]usic is the universal language of emotion," but also that it was the one expressive form that, "with rare exceptions, … can give vent to excitement, that without it must be repressed." At a time when "Party barriers fell as if by magic; and we all found ourselves side by side with one feeling, one purpose," White explained, there was no nobler "fire" than patriotism and no better means of expressing it than music.³⁵ The Virginia-based Southern Music Advocate and Singer's Friend would have agreed: "patriotism has ever burned the brighter when music fanned the flame, and the human breast has ever throbbed with a holier devotion when the soul of song was stirring at the heart-strings." Indeed, in the South, sufficiently strong patriotic associations could even redeem an otherwise average piece of music. In an 1857 review of a newly released collection of Revolutionary-era songs, Charleston, South Carolina's Russell's Magazine judged, "This volume impresses us with a profound respect for the patriotic fervor of our ancestors—not at all diminished by the quality of their verses, which, to say the truth, are 'curiously bad.'" In this way, the cultivation of patriotism was considered equally alongside morality and religion as a primary benefit derived from the cultivation of music.³⁶

Significantly, pre–Civil War associations among music, patriotism, and moral uplift were not limited to individuals (like composers or music teachers) or publications (like music journals) with a commercial incentive to broadcast them. By 1835, the nation's foremost institutional proponent of these ideas, the Boston Academy of Music, could be found corresponding with smaller-scale imitators across the entire country: from Georgia, South Carolina, and Virginia to Illinois, Missouri, Tennessee, and Ohio.³⁷ Meanwhile, another Boston musical organization, the Handel and Haydn Society, had by 1858 sold up to fifty thousand copies of its signature collection of church music, turning the first substantial profit in the nation from a musical endeavor.³⁸ Though now closely associated with the Northeast, Lowell Mason, the editor of the Handel and Haydn Society's Collection of Church Music, was a resident of Savannah, Georgia, throughout the period of the anthology's creation and publication. In Savannah, Mason worked at a bank and dry goods store, led singing schools, served as organist at the Independent Presbyterian Church, and kept up with musical trends through subscriptions to music periodicals like John Rowe Parker's Boston-based Euterpeiad.³⁹ So, despite the fact that a minority of northern cultural elites tended to be the ones articulating in print these positive understandings of music's power, by the start of the Civil War their message had sunk deep roots in communities throughout the country. In fact, by the 1850s music journals took particular pride in emphasizing the extent to which their subscription base transcended sectional divides. In 1856, for example, New York's Musical Pioneer and Chorister's Budget editor I. B. Woodbury celebrated that his publication "is now read in every State in the Union" and declared his belief that its circulation would help guide the country back "to the realms of peace."⁴⁰

This idea that music constituted an appropriate and unifying means of patriotic expression could not be easily dismantled, even by the exigencies of civil war and military occupation. And in it lies the basis for explaining not only why Confederates sang but also why Union punishments for singing and selling Confederate music varied in seemingly inconsistent ways. Since patriotic music was considered an inherently respectable activity, it represented—especially, but not only, for Confederate women—an appropriate and accessible medium through which to defy Union control. In contrast, for Union officials the continuation of Confederate music contributed not just to what Andrew F. Lang has termed a "gender identity crisis" but also to questions over where, when, and how the sheer expression of Confederate ideals posed a treasonous threat to the Union.⁴¹

Take the Union army's occupation of New Orleans. In September 1861, when seventeen-year-old Clara Solomon enthused to her diary, "I do love the 'Bonnie Blue Flag,'" few would have judged her sentiments remarkable, given how closely they echoed the collective judgment of her New Orleans peers. On news of the first performances of "The Bonnie Blue Flag" in the spring and summer of 1861, the local press lauded its British author Harry Macarthy as a "true son of genius" and a "remarkable man," whose "concerts are now all the rage." And the tune itself—written as an ode to the unofficial Confederate flag of the same name—had quickly attained a prominent place in New Orleans's civic life as a "feature" at concerts for the benefit of Confederate soldiers and as a favored selection for use in children's singing lessons.⁴² Lyrically, its verses celebrated the name of every state that had seceded from the Union to join the Confederacy, and its chorus refrain was a literal "Hurrah!" for the cause of "Southern Rights." Consequently, the lyrical directness of "The Bonnie Blue Flag," despite its previous civic associations, had a tendency to get its admirers into trouble once Union occupation began.⁴³

Confederate women in New Orleans, not caring for the Union's military intrusion into their private lives, met the occupation of their city in open protest of their occupiers. Women emptied chamber pots on the heads of Union soldiers, pointedly lifted their dresses, obviously displayed Confederate iconography and flags, threw jeers and taunts as soldiers passed, and blatantly sang rebel songs. Benjamin F. Butler, who was in charge of the Union army's occupying forces, initially responded to these provocations by issuing his infamous Women's Order, which stated that Union soldiers were to treat any woman who "insult[ed] or show[ed] contempt for any officer or soldier of the United States" as a "woman of the town plying her avocation." Whereas women might have previously assumed they could rely on their gender to exempt them from punishment, Butler's Women's Order raised the stakes by taking their defiance seriously and instructing Union officers to engage with Confederate women not as women, exactly, but as hostile adversaries. From an officer's perspective, however, having the authority to arrest civilians purely on account of their self-expression was not a straightforward power to wield. It meant having to decide, over and over again, whether exercising that power could be reconciled with their identities as men, their ideals as citizen-soldiers, and their conceptions of how best to spread the cause of freedom and liberty.⁴⁴

Given these considerations, regulating even the most overtly proConfederate songs like "The Bonnie Blue Flag" was no easy task. And one of the most potent examples of this challenge comes from the experience of Claiborne Massey, who appeared in the New Orleans provost court on April 28, 1863, arraigned on the charge of playing "The Bonnie Blue Flag" on the piano inside her parents' house on Bacchne Street. A policeman on the beat had made the arrest and was present in the court as prosecutor. But whereas most provost court defendants had no legal aid whatsoever, Massey's family had the means to procure an unusually high-powered defense from Michael Hahn—a Louisiana lawyer who had just returned from a short stint in the United States Congress. Without denying the charge per se, Hahn proceeded to make five claims in support of Massey's acquittal: first, she had "inadvertently" played the tune "without any intention"; second, she "did not sing the words"; third, the loyalty of her family had never before been questioned; fourth, "gossip of the neighborhood" had led to the arrest, "out of spite"; and fifth, the music itself was not treasonous because "the tune of 'The Bonnie Blue Flag' did not rightfully belong to the song of that name … [since] the air was an old one, and by itself was not disloyal." In other words, Hahn argued, the crime of playing this socalled Confederate tune should not really be considered a crime at all.⁴⁵

Both the prosecuting officer and witnesses for the defense confirmed that Massey was not singing at the time of her arrest, and that in their opinion she had most likely fallen into playing "The Bonnie Blue Flag" without meaning to do so. The corroboration of this evidence, combined with there being no history of seditious behavior in Massey's family, the assertion that gossip had sensationalized the episode, and ingeniously, the claim that "The Bonnie Blue Flag" when played without any lyrics reverted back into the old Hibernian air on which it was based, was all to suggest that martial law had overstepped its prerogative, and that the melody, in and of itself, occupied a space somewhere beyond its political associations. The question, at least according to the Bee's court reporter, became less about whether Massey had performed the melody she was accused of than about whether her performance of it constituted a trivial form of entertainment and a legitimate means of self-expression, or whether the tune itself was powerful enough to pose a threat to the maintenance of public order—thereby making any rendition of it worthy of suppression.⁴⁶

The judge who heard Massey's case, August DeB. Hughes, was already experienced in weighing whether to punish or to protect members of southern society previously considered harmless.⁴⁷ And, in this case, Hughes was not persuaded by Hahn's argument that a girl's music was beyond the law. Instead, the Bee reported, the court issued Massey a fifteen-dollar fine, with the opinion "that what might be justifiable in one spot was not in another, and as that tune had become obnoxious, the use of it in any house demanded some punishment." Other newspaper reports of the judgment added that Hughes had taken "the high character of the able gentleman who defended the lady" into consideration and had therefore decided to "be as lenient as the strict requirements of his duties would permit."⁴⁸ This assertion was not entirely true. Fines imposed for music-related offenses in New Orleans during Union occupation varied anywhere from five to fifty dollars, and acquittal without punishment was nearly as likely as receiving a fine or a sentence of thirty days in jail.⁴⁹ Nonetheless, Hughes ruled that the performance of this melody was inherently seditious and that the performer must be punished as a result.

Still, the language reportedly used by Hughes in Massey's sentencing is revealing. In fact, many sentences for seditious music were justified precisely on the grounds that a judge felt obliged to dispense at least "some punishment," as Hughes was said to have put it.⁵⁰ Another such case in New Orleans was the trial of Mrs. Bensadon, "an elderly lady in spectacles," who was sent to jail for thirty days in May 1863 for "exhibiting and expressing secession proclivities," including the keeping of a house "where the Bonnie Blue Flag and shouts for Jeff Davis and [General P. G. T.] Beauregard are often heard." The prosecution's central argument, however, was that Bensadon must be imprisoned not because martial law required it but because the court needed "to give a proper impression." By comparison, many judges, when given the opportunity, were disposed to dismiss altogether charges of singing Confederate music. Just one day after Bensadon was sentenced, five boys who had been arrested for singing a song "with the chorus—'We will fight for Jeff Davis, etc.'" were discharged after the arresting officer, a Lieutenant Duane, pleaded for them not to be sent to prison.⁵¹

Contributing to the variability of these outcomes was the fact that the legal-military apparatus charged with policing treason and disloyalty in Federal-controlled areas was intimidatingly large and diffuse. In states that had seceded, United States civilian courts could not technically operate, which resulted in the local military commander becoming the source of legal authority, or martial law. The commanding general could then choose to delegate his authority to a provost officer to run the military courts. Within loyal states, the Constitution guaranteed the right of every citizen to a free trial (the "privilege of the writ of habeas corpus") "unless when in cases of rebellion or invasion the public safety may require it." In April 1861, President Lincoln took the step of suspending the writ of habeas corpus in Maryland after secessionist riots broke out in Baltimore. And a month later, in Ex parte Merryman, Supreme Court Chief Justice Roger B. Taney ruled that only Congress, not the president, had the authority to suspend habeas corpus—a ruling Lincoln defied until March 1863, when the technicalities of the issue were rendered moot by the passage of the Habeas Corpus Suspension Act.⁵² But once war had broken out, northern jurists like Anna Ella Carroll were making the case that loyalty or disloyalty was a product less of state action than of personal choice: "no man should be implicated in the guilt of an insurrection," Carroll maintained, "unless he actually rebels."⁵³

Meanwhile, a loose and often overlapping network of Union provost marshals undertook the grassroots work of identifying and charging citizens with treason and disloyalty in both the North and the Unionoccupied areas of the South. There were at least three different types of Union provost marshals in any given location: a military provost marshal, responsible for enforcing the discipline of the army corps, division, or brigade with whom he was attached; a civil provost marshal (appointed by military officers), who was responsible for policing disloyalty among the population of a particular geographic area; and a departmental provost marshal, who operated in an oversight capacity over the other two. In practice, distinctions between all three tended to blur, and local members of the community, including the police, were routinely recruited to serve as informants and enforcers. The structure of this provost marshal system meant that centralized policies crafted in Washington, D.C., were carried out by individuals at a far remove from the administration, which in turn made room for a large degree of variability. Overzealous policemen could easily overreach, and some provost marshals operating without much federal oversight exercised their powers corruptly. Definitions of loyalty, disloyalty, and treason were thus negotiated through interactions between citizens and functionaries of the Union government rather than imposed by the president, the Constitution, or any clearly definable set of rules.⁵⁴

Within this system, deciphering and enforcing the legal status of patriotic music were never straightforward. For example, in April 1863 Unionists' calls for an airing of "Hail Columbia" disrupted a performance at the Varieties Theater in New Orleans. The theater's manager, Lewis Baker, insisted that he was unable to comply with the request because the license the military authorities had issued the theater specifically forbade the recitation of "political airs." A near riot ensued when a representative of the military government confirmed the validity of Baker's statement: loyalists immediately denounced both men as liars and vehemently disputed the designation of "Hail Columbia" as a political song. As one incredulous audience member put it, "Do you mean to say that the military authorities will not allow the national airs to be played in this theatre?" In response Baker insisted that "'there are, undoubtedly, Confederate as well as Union gentlemen present, and therefore these Union national airs are very unpleasant'"—a disingenuous ploy, thought Unionists, who had long complained of Baker's reputed tendency to substitute "some secesh melody" in place of "national airs." Ultimately, the threat of violence emptied the theater of most patrons before instructions were finally given for the tune to be played. For one commentator, however, the Varieties Theater episode was indicative of the military administration's habitual incapacity to dispense wartime justice appropriately. "Sedition is protected by every quibble of the law," protested a correspondent to the New York Times, "and gross outrages which the laws never contemplated … go unpunished because the Judge, with no limit to his power, can find no law." According to disgruntled Unionists, the idea that Baker's company had literally been licensed to refuse requests to play national airs was "a blistering shame upon the military authorities of the city."⁵⁵

In reality, Baker's attempts to prohibit the presence of loyal airs in his theater were not entirely predicated on the constraints of military law—the orders under which Baker's theatrical license operated emphasized quite plainly that loyalist sentiments were permissible, if not to be encouraged.⁵⁶ Moreover, it is also true that the majority of male offenders who appeared in the New Orleans provost court on musicrelated charges were convicted and punished, even in cases that lacked clear-cut evidence of their guilt. One man arraigned for preventing a child from singing "The Star Spangled Banner" was fined thirty dollars because the testimony of the young black witness, whom he owned, was upheld over his explanation that he simply had sought to quiet a "great noise" being made next to him. In another case, two men were charged fifty dollars each for singing "The Bonnie Blue Flag" in a cab, despite denying the accusation and stating that they had actually been singing "The Star Spangled Banner" and "Erin Go Bragh." A close inspection of New Orleans newspapers between 1861 and 1864 shows that of a total of nineteen known cases in which adult males were tried in the provost court for seditious singing, thirteen were convicted and punished, as opposed to only six whose cases were dismissed.⁵⁷ So, while leniency was often practiced, provost court judges did in many day-to-day cases proffer a firmer style of justice than Unionist complaints, particularly those from far-off New York, might have made it seem.⁵⁸

Of course, the ease with which Confederate sympathizers could be arrested for singing or publishing Confederate songs reflected the fact that open criticism of the United States government or open support of its enemies inevitably invited suspicion. "It took a perfect dunderhead not to notice," as William Blair memorably puts it, "that hurrahing for Jeff Davis or wishing for the success of the Confederacy brought the provost marshal to one's door." But the question of what should happen next weighed heavily on Union officers, who resented being tasked with what appeared to them as trivial civic assignments, of which the requirement to regulate music sung by women and children seemed particularly demeaning. A military hospital attendant in 1864 contemplated that if his unit were sent to New Orleans, "We shall only have to do the ignoble duty of petty policemen—pick up the little boys who will sing 'The bonnie blue flag' in the streets, and the naughty ladies who stick out their tongues at the soldiers. We shall have to go home ignominiously, without honor, without having struck a blow."⁵⁹

Union attempts to police the loyalty of the divided population of St. Louis, Missouri, thrust Confederate music into a similarly contested space. Unlike in New Orleans, adjusting to invasion and occupation was not the lot of St. Louisans, and the Union's firm control of eastern Missouri ensured that the threat of a destructive military assault was never especially high. But St. Louis was nonetheless inhabited by a combustive constituency of Confederate sympathizers, conservative Unionists, Radical Republicans, and representatives of a spectrum of opinion in between. City leaders sought to keep the peace by enforcing a "flexible neutrality" that might give the appearance of uniform loyalty while in practice offering enough leeway to Confederate sympathizers to secure their support. The linchpin of the approach lay in the provost marshal's office, which oversaw a complex network of local informants, investigated rumors, surveilled the contents of mail and newspapers, extracted oaths of allegiance, and levied a range of punishments from fines to confiscations and arrests.⁶⁰ Yet, since its goal was always less about imposing loyalty across the board than about facilitating political and social stability, the task of assessing and responding effectively to traditionally harmless actions like singing or selling Confederate music required a deft hand. Loyalty, in the end, was rarely easy to measure, despite the fact that adjudicating its presence or absence became a necessary, if sometimes futile, part of making treason charges stick.

Technically, the U.S. military government in St. Louis issued no orders pertaining expressly to seditious music: there was no outline of the punishments that its recitation or distribution were to attract, and there was no clear articulation of the exact law such activities contravened. However, the St. Louis provost marshal, George E. Leighton, did provide a de facto prohibition of Confederate music. In Order No. 834, which was promulgated, as the Daily Missouri Republican reported, "with a view to preserving the peace of the neighborhood," Leighton ruled that three local women had proved themselves to be "disloyal to the Government of the United States" on account of the fact "that they frequently manifest such disloyalty publicly … by displaying secession flags, by singing secession songs, [and] by repeatedly insulting loyal persons because of their loyalty." As a result, the women were ordered to vacate their home within forty-eight hours or face arrest and confinement in a military prison.⁶¹ In this example Confederate music, instead of being banned outright, was grouped with an assortment of other activities that combined to form a picture of seditious proclivities, the expression of which was outlawed because of the threat it posed to the maintenance of public order. There was nothing in the language of the law to suggest that a single act of singing secessionist music necessarily amounted to a punishable offense. But music could supplement other evidence in cases where disloyalty seemed obvious but where a singular piece of definitive proof was lacking.

In 1864, however, one of Leighton's successors, Colonel John P. Sanderson, was compelled to reflect more closely on the link between music and disloyalty in response to a music publisher's request to sell a song called "'Stonewall' Jackson's Prayer" in St. Louis. Sheet music for the tune featured a prominent portrait of the Confederate general Thomas J. "Stonewall" Jackson on its cover, and the lyrics were ostensibly a sentimental ode about Jackson writing to his wife and infant on the night before his last battle. The publisher, Blelock & Co., was based in New York City and boasted commercial ties to many of the most popular and patriotic music publishing firms in the United States, including Root and Cady of Chicago, which was responsible for "The Battle Cry of Freedom." Conveniently downplayed was the fact that Blelock & Co. had only recently moved to New York after fleeing New Orleans once it had fallen to the Union. Nevertheless, Blelock & Co. argued that "'Stonewall' Jackson's Prayer" should be permitted in St. Louis, not just because "the words are very touching and the melody very pretty," but because "it is not political in any sense whatever." In support of this claim, Blelock & Co. argued that the emotions of a man writing to his family before battle were universal and therefore not applicable to just one side of the conflict. "It might just as well have been called The Battle Prayer," the company reasoned, "or any other appropriate name." And the company maintained, not inaccurately, that if the lyrics were inspected on their own it would be impossible to tell whether the song was written from the perspective of the Confederacy or the Union.⁶²

Sanderson was unmoved by the music publisher's logic. "I see no objection to the circulation of the song itself," Sanderson advised Major General William S. Rosecrans, but "why Jackson's likeness should appear on the cover, and the song be called by his name, I am at a loss to know, unless with the view of securing rebel patronage." Inferring that the request was "an attempt to evade your orders," Sanderson concluded, "I am not disposed to give its circulation any official sanction." The melody of "'Stonewall' Jackson's Prayer" was not itself disloyal, according to Sanderson, and neither were its lyrics. But the associations given to these otherwise neutral expressions by the tune's title and packaging constituted more than enough reason for him to suspect treasonous intent.⁶³ In 1862, an almost identical thought process had also justified the initial arrest of music publishers Balmer and Weber for selling Confederate music. In that instance, a "reliable party" had included Balmer's and Weber's names on a list of disloyal persons, which had been furnished to the provost marshal's office, with the explanation that the "secession music" they had for sale—including titles like "Southern Cross," "Confederacy March," and "State Rights [March]"—"with flags, emblems, and likenesses of Davis, [General Sterling] Price, &c. on them" was enough to conclude that the duo merely "pretend to be Union."⁶⁴

Yet the alleged link between music and disloyalty broke down as soon as news of Balmer's and Weber's arrest was made public. The Daily Missouri Republican, which defended the pair, pointed out that the pieces of music in question were merely "old pieces 'under the shadow of new names.'" "'The Confederacy March,'" the paper claimed, "was formerly published in Utica, New York, under the title of 'The Cayuga March,' and was not then an original publication, having been published years before in Germany." Even "The Southern Marseilles" was "notoriously the old French 'Marseilles Hymn.'" Others were "republished with new vignettes and title pages, vaunting the rebel flag as a lure to secession musicians."⁶⁵ A few days after the arrest, the newspaper issued a corrective, stating that its reporting should not have been taken to imply in any way that Balmer and Weber "were publishers of part of the contraband." Instead, the paper clarified, all the music under investigation had been published in Baltimore, save for one piece that had arrived from Louisville. All that Balmer and Weber had done was purchase the sheet music "long ago as part of their general varied stock in trade" and, actually, "for some time have had none of them on sale." The editorial went as far as to claim that Balmer and Weber "have never published any music of that character." No evidence survives to indicate the exact argument that Balmer and Weber used in their defense. However, the military authorities in St. Louis quickly proved agreeable and released the pair without punishment just a day after their arrest.⁶⁶

Performers of Confederate music in St. Louis were treated similarly to its publishers. When J. J. Kendrick, a local man originally from New York, was arrested and imprisoned "for singing a disloyal song on board a Steam Boat," family friend William M. Robinson, captain of the Twenty-sixth Missouri Volunteer Infantry, petitioned Provost Marshal General Franklin A. Dick for Kendrick's release. "I have known [Kendrick] from boyhood," Robinson wrote. "He is a harmless man" who "regrets" his actions, Robinson explained; "As an officer of the U[nited] States I would not urge the release of any one who could be dangerous to the Government."⁶⁷ In another case, Miss Maria Dee, who had made a habit of "singing secession songs" while Union soldiers passed by her house, was eventually turned in by a neighbor who was presumably annoyed that the intended targets of Dee's songs had not considered the slight significant enough to warrant taking action themselves.⁶⁸ Local newspapers, meanwhile, delighted in reporting that a group of "notorious rebel sympathizers" who had made a "custom" of offending loyal people by singing "secession songs and ditties" were finally "suppressed" by a crowd of small boys who surprised them with a hail of "bologna sausage and bad eggs."⁶⁹ Secession-associated music, then, may have been a cause for excitement and agitation, but to the participants involved at the time it did not necessarily constitute a serious threat to public peace, at least not when it came from supposedly harmless men, women, and children.

A seemingly less ambiguous set of rules regarding music censorship prevailed in Baltimore. In March 1863 military provost marshal William S. Fish issued a ban on selling Confederate music under the authority of Major General Robert C. Schenck, then the commanding officer of the Middle Department. The Baltimore Sun printed the order, which was addressed to the music publishers and dealers of Baltimore: "The publication or sale of secession music is considered by the commanding general and the Department at Washington an evil, incendiary, and not for the public good. You are therefore hereby ordered to discontinue such sales until further orders. Also to send to this office any such music you may have on hand at present." In this formulation, the basis for banning Confederate music was presented as a moral necessity as well as an essential wartime political measure. And, indeed, the existence of the order and the morality of its language were in part a reflection of Schenck's strong support for a Union emancipation policy, which contributed to his adoption of measures aimed at impressing on Maryland's contingent of vacillating Unionists that there could be "'no middleground'" when it came to their loyalty.⁷⁰ Certainly, the emergence of emancipation as a necessary component of Union victory heightened the stakes of loyalty on the ground. However, Schenck's order did not represent a significant practical change to Union policy in Baltimore, which had effectively banned Confederate music since at least September 1861, if not before. In a dispatch that month to Major General George B. McClellan, General John A. Dix reported that his soldiers "have been instructed to arrest any person who makes a public demonstration by word or deed in favor of the Confederate Government and I have prohibited the exhibition in shop windows of rebel envelopes and music." Indeed, back in May 1861, Benjamin F. Butler had formulated the initial scope of martial law in Baltimore in conspicuously expansive terms: "No flag, banner, ensign, or device of the socalled Confederate States … will be permitted to be raised or shown in this department"; any use "of them by evil-disposed persons will be deemed and taken to be evidence of a design to afford aid and comfort to the enemies of the country." Safe to say, in July 1862 there was no need for a music-specific provision of martial law to facilitate the arrest and imprisonment of Henry McCaffrey, a well-known Baltimore music dealer and publisher, on account of treason for publishing rebel songs.⁷¹ Schenck's music order codified a law that was, for all intents and purposes, already in operation.

Even so, one might anticipate that Schenck's more explicit prohibition of selling rebel-associated music in Baltimore might have succeeded in, if not eradicating, perhaps substantially altering the place of Confederate music in Baltimore thereafter. But despite provoking some fairly indignant reactions, Confederate music bans in Baltimore met with little effect. In the wake of the order, verses protesting the oppressiveness of Schenck's measures circulated in secret. Men like John Pendleton Kennedy complained that Schenck "even forbids the birds to sing 'My Maryland,' a tyranny which has turned all the crotchets into demi-semi-quavers."⁷² Yet in 1864, in spite of such complaints, one could still hear, according to a London Times correspondent, "the melancholy chant of 'Maryland, my Maryland,'… the livelier strain of the 'Bonnie Blue Flag,' or to the English ears the nobler melody of 'God Save the South,'" all sung publicly "in defiance of the lazy, but perhaps not altogether unsympathizing, policeman." The Times had predicted this outcome at the time of Schenck's prohibition of Confederate music, claiming that women, in the absence of printed music, would simply circulate Confederate tunes in manuscript form. "General Schenck must be unwise and inexperienced in the ways of the world," concluded the English paper's Baltimore correspondent, "if he thinks he can circumvent the plans, stop the singing, or set bounds to the ingenuity of the ladies" merely by declaring the printed distribution of their favorite tunes to be against the law.⁷³

And to be fair, Baltimore's music order was specifically in reference to selling secession music, not performing it. However, the order did not even succeed in achieving this much. Instead, the regulation of Confederate music publishers that occurred under its auspices devolved into complete confusion. Initially, the ban had gone smoothly: most major music publishers in Baltimore stopped selling the Confederate music they had and turned over their remaining stock to military authorities. However, a week after the music ban had been disseminated, Baltimore's provost marshal, William Fish, summoned a trio of the city's best-known music publishers—Mr. C. W. Miller of the firm Miller and Beacham (who originally published "Maryland, My Maryland" in Baltimore), Henry McCaffrey (who had already been arrested and imprisoned for charges relating to seditious music the year before), and George Willig—to inform them that in order to comply with the music order, Schenck now demanded they surrender not only the Confederate sheet music they had on hand but also the printing plates that could be used to create more copies of prohibited material. Plus, the publishers were ordered to agree to a parole, or oath, that attested to their future intention not to publish or sell seditious music of any kind.⁷⁴ It is debatable whether the music prohibition order actually required these steps to be taken, but the music publishers consented anyway.

On further reflection, Schenck resolved that he was still not satisfied these measures achieved the purpose of the law and later that day sent word that the music publishers were to sign another oath, this time also attesting to their loyalty as a "law-abiding citizen of the United States" and their commitment to "neither doing myself [nor] aiding, abetting, or countenancing, any act prejudicial to the good of these United States and its civil and military laws, or speak[ing] insultingly or contemptuously of the same." This went beyond the standard loyalty oath used in St. Louis and proved too much for the music publishers, who refused to sign the oath until it was revised to avoid any suggestion that they had willingly agreed to relinquish their freedom of speech. As the London Times put it, "the doughty music publishers" were "willing to be loyal" but "were by no means willing to resign the cherished right of all who use the English language to speak contemptuously of the Government."⁷⁵ It is possible that corruption was the underlying cause of all these back-and-forths. Within a year of the episode, William Fish was arrested, imprisoned, fined, and dishonorably discharged from his provost marshal duties for having solicited bribes, or fees, from his defendants in exchange for their acquittal in the provost court (among various other transgressions).⁷⁶ It is telling that a corrupt official would be involved in one of the war's most vigorous pursuits of music-related offenders in a city that, conveniently for him, boasted the nation's most stringent codification of laws concerning the dissemination of Confederate music.

Regardless of corruption, news of Union military regimes cracking down on Confederate music regularly opened attempts to police disloyalty to criticism. In Schenck's case, when he and Fish shut down the Baltimore Republican newspaper and banished its editors for publishing disloyal material, including a Confederate song called "The Southern Cross," Copperheads in the United States were quick to pounce on the story as evidence that the Lincoln administration's repression of civil liberties had gone too far. "Schenck is a hero," the Philadelphia Daily Age mocked; "No one in the pay of the central despotism at Washington has accomplished so many valorous deeds against unarmed editors and defenceless women and children as this valiant individual." And they predicted that Schenck's decision to single out a Confederate song would backfire: "It may have been very treasonable and wicked for the Republican to publish 'The Southern Cross'—a piece of disloyal poetry, set to music," the Age posited, "but [h]undreds will now seek for it that never heard of it before. They will read it, in spite of Schenck." Moreover, the Copperhead editors complained, if disloyal songs really were such a problem, then why were similarly disloyal abolitionist songs not treated the same way? The Age claimed that any fair-minded comparison of pro-Confederate and pro-abolitionist lyrics would prove that "an equality of punishment should be meted out in both cases." For the administration's critics, Schenck's "exuberant 'loyalty'" was impossible to justify.⁷⁷ Indeed, Confederate papers reporting on Schenck's music order rarely felt the need to add to the critical tone of northern accounts, which they passed on word for word, and without comment, to their southern readers.⁷⁸

Elsewhere, reports that the Union government was using its military powers to punish Confederates for their music were especially prone to attract negative reaction from European observers, whose support was vital to either side's success. European attention to music-related arrests in the United States arose initially in conjunction with the international fallout from Benjamin Butler's Women's Order as well as in response to Butler's consistent disregard for diplomatic niceties during his dealings with foreign nationals. Suspicious of links between foreign consuls and the Confederacy, Butler had used the powers of martial law to confiscate $800,000 in deposits from the Dutch consulate and to require all foreigners resident in New Orleans to swear an oath of allegiance to the United States.⁷⁹ Once news of Butler's actions reached Europe—with help from Henry Hotze's Londonbased Confederate propaganda machine—reports of music-related arrests from any part of the United States began to be published by way of showing that such habitual abuses of martial law as occurred in New Orleans were indicative of the country's negative trajectory in the estimation of the world.⁸⁰

One of the cases concerning Confederate music that was most heavily reported on overseas involved a young woman from New Orleans, Isabel M. Brinsmade, who was arrested in Washington, D.C., having been observed singing secessionist songs while visiting relatives in New York. On the suspicion that she was a rebel spy, the New York superintendent of police, John A. Kennedy, ordered an officer to "pipe," or monitor, her journey to visit more relatives in Washington. Upon her arrival in Washington, Kennedy sanctioned his officer to arrest Brinsmade without a warrant and transport her back to New York, where she was imprisoned for over a month, denied a trial, and deprived of access to friends and family.⁸¹ The manner of the arrest provoked condemnation throughout much of the northern press as well as in the South; but it was perhaps most remarkable for the ferocious reaction it elicited abroad, even in relatively obscure British newspapers: "A Shameful Case of Oppression," exclaimed the headline in the Hereford Times. Notably, the fact that the arrest had been based purely on "singing a song" made the treatment that followed seem all the more reprehensible to foreign observers. As the Louth and North Lincolnshire Advertiser described it, "Mrs. Brinsmade had sung a song in private company, the burden of which was sympathy with the Southern cause," meaning that she had been arrested merely because "she was a Southern lady with Southern feelings and the natural openness of youth." The Glasgow Herald went the furthest, detailing the Brinsmade case as evidence that "the Americans are receding in their civilisation much more rapidly than they advanced."⁸²

Sections of the northern press in the United States were similarly outraged. "This case, as presented, is one which concerns not only her [Brinsmade's] liberty, but the liberty and security of every man's wife and daughters," exclaimed the antiwar Philadelphia Public Ledger. The Democratic New York Express agreed: "Certainly a more cruel and indefensible outrage was never before committed upon the rights of the citizen than this." Even Republican papers defending the "bitter assault" on Kennedy's character felt obliged to concede a certain "over-zealous discharge of duty" might have taken place. The Brinsmade case fit perfectly into the narratives of Republican Party adversaries who opposed the suspension of habeas corpus. As the Concord New Hampshire Patriot and State Gazette put it—"No other nation under Heaven would tolerate for a day a Government by which such infamous outrages are perpetrated and permitted. Yet hundreds of like character have been committed by the insolent agents of our Government."⁸³ The use of martial law to regulate seditious singing thus caught international attention and inflamed larger domestic debates across the Union over the rights of citizens in wartime.⁸⁴

To be sure, the attention-grabbing appeal of secessionist music and the provocative nature of its delivery also led to disagreement among those charged with policing its presence. In July 1863, for example, a woman named Mary Fitzgerald was arrested in St. Louis on evidence that she had been heard singing "Dixie" as well as a number of other rebel songs while at work at a store making wagon covers. Testimonials gathered from her colleagues all painted the picture of an enthusiastically strong-minded and conscientious rebel. Mary Reed testified, "I saw Mary Fitzgerald who said 'that she was a Rebel and that she would live and die a Rebel'" and "said that should she hear anyone say that a Rebel was not as good as a Dog, she would give them to understand that a Rebel Dog could bite."⁸⁵ However, Provost Marshal General James O. Broadhead rejected his subordinate's recommendation that Fitzgerald "be confined for a time" for her seditious singing, choosing instead to release her after she took an oath of allegiance. The investigation had determined Fitzgerald was a "Rebel," her workmates had testified that Fitzgerald's singing was intentionally inflammatory, and yet these Union officials in St. Louis were still at loggerheads over how best to respond.⁸⁶

In other cases, singing Confederate music under Union martial law clearly offered Confederate sympathizers a way to double down on their even more radical actions. In October 1864, when three women from Missouri—Jane Vestle and two of her daughters, Sarah Childs and Martha Williams—were arrested for having conspired to engage in deadly acts of guerrilla warfare, they reportedly "sung rebel songs all the way from their house to Yates, some four or five miles." Testimonials claimed that Vestle and Childs were both married to guerrilla fighters known to have killed Union soldiers in the past, and that their home was a notorious "rendezvous of Guerrillas and Bushwhackers." Reportedly, Vestle had also recently boasted of a new plot to capture a Union officer and his family and have them turned over to the rebels. While it is possible the charges were exaggerated, these were not women who lacked options for expressing devotion to the Confederate cause. And the timing of their singing in the aftermath of their arrest suggests how Confederate songs may have worked to reaffirm their opposition to Union rule even at a moment of vulnerability—though all three were in fact soon released without punishment.⁸⁷ In similar fashion, when Belle Boyd, a well-known Confederate spy, was captured and imprisoned at Old Capitol prison in Washington, D.C., fellow prisoners claimed that her performances of "Maryland, My Maryland" were so "'stirring'" that they affected even the guards and those with "'sensibilities which did not sympathize with the cause which inspired the song.'"⁸⁸ Patriotic melodies in these cases retained a measure of their respectability and redemptive power, even when sung in support of a hostile nation and even when sung from the lips of women known to have directly aided and abetted the rebellion.

Women, of course, were not the only recipients of Union clemency—an outcome that tried to downplay the salience of their actions while offering tacit recognition of their political capacity and importance (Figure 9).⁸⁹ Union officers routinely turned a blind eye to children they observed

Figure 9.

Female Cases and Punishments by Class

Note: n = 25.

singing secessionist songs as well.⁹⁰ Even adult defendants facing musicrelated accusations similarly convinced provost court judges to dismiss their charges with surprising regularity (Figure 10).⁹¹ But reports of such leniency toward Confederates did bother Unionists further afield, for whom the presence of Confederate music became a barometer of rebel spirit. Elements of the northern press bemoaned the fact that crowds of men in New Orleans could get away with singing "The Bonnie Blue Flag" right in front of the U.S. military's headquarters and that young ladies could get away with letting Yankees into their parlors on the condition that "the stale old Scotch song, set to new words," be played "for the thousandth time." For some, the sheer ubiquity of secessionist songs and the impunity with which they were sung under Union occupation were nothing short of remarkable: "In an evening's ramble" through New Orleans, noted the New York Times, "not only is the ear greeted by disloyal songs from private houses, in every direction, but people even dare to parade the streets, singing

Figure 10.

Results of Adult Cases

Note: n = 40.

their treason openly." If such was the result of a hard-fought Union victory, another correspondent figured, "then let us abandon the contest at once."⁹²

Under military rule, then, the limits of political action were drawn with only enough consistency to ensure that Confederate music could be treasonous, not that it would always be treated as such. This ambiguity, however, lay at the core of its allure: the patriotism that enabled Confederate music to seem attractive and effective to Confederates and their foreign sympathizers is precisely what also made it seem threatening and treasonous to their adversaries. Legally speaking, there was no obvious way to judge at what point innocuous expressions of Confederate patriotism spilled over into incendiary acts of sedition. And as a result, although popular-based "implied" definitions of treason helped local Union officials cast musical dissent as treasonous disloyalty, the contests that emerged over such decisions reverberated far beyond the boundaries of the military occupation under which they occurred. On one hand, Lincoln's critics in the North and pro-southern propagandists overseas joined with disgruntled Confederates in seizing on news of Confederate musical arrests as irrefutable evidence of Union overreach. On the other, Unionists—typically those located at a safe remove from the Confederacy—charged that military victories meant little if the enemy's songs remained free to inculcate sedition and inhibit attempts to maintain law and order in conquered populations of divided loyalties.

A few basic trends are observable: able-bodied men of military age along with individuals of higher social standing or with access to economic resources were generally punished more theatrically, if not always more severely, for musical offenses than were lower-class women and children or the elderly. Yet even these conclusions speak to the difficulties of categorization. Men may have been punished more harshly than women on the whole, but a rich young woman could receive less leniency than a poor old man. Meanwhile, it is also true that many Confederates—including young women—often found it far easier than they might have imagined to get away with brazenly public renditions of Confederate songs. Uniting all such cases, however, was an underlying clash between the desire to preserve preexisting cultural values, political ideals, and social conventions with what turned out to be a competing desire to showcase the justness of the Union's cause and the comprehensiveness of Confederate defeat.

In the process, Confederate musical arrests under Union martial law show how the regulation of Confederate music helped participants on both sides of the conflict define their boundaries of war and occupation. To an extent, the arrests of men, women, and children for singing seditious songs clearly amplified one of the ways traditional distinctions between civilians and soldiers broke down on the Confederate home front. Ironically, however, the justifications and debates over Confederate musical arrests (and non-arrests) also point to the extent that these same distinctions, messy as they were, nonetheless mattered to Americans and foreign observers at the time. Over and over again, arguments about the impropriety or injustice of musical arrests centered not on Confederate music itself but on competing interpretations of whose political expressions actually carried the weight of political consequence. The politics of musical sedition, then, pivoted on the purported moral need to uphold distinctions between public and private, home fronts and battlefields, and civilians and soldiers in the face of wartime conditions that continually muddled them together. In turn, contests over the legality of Confederate songs and secessionist singing were proxies for engaging in more abstract disputes over how to adjust to, and take advantage of, an expanding scope for political action. And they emphasize how critical those attempts to define the boundaries of war were to the experience of their destruction.

Looking forward, wartime debates over Confederate music continued to have important repercussions. The legal difficulties of determining treasonous intent in cases of Confederate singing—and the domestic and international blowback elicited from doing so—accurately foreshadowed the risks and complications that shaped subsequent attempts to prosecute Confederates for treason after the war.⁹³ Meanwhile, Unionist complaints about Confederate singing in the South continued to be published long into the postwar period, usually as evidence that reconciliationist reconstruction policies were allowing the spirit of rebellion to survive military defeat.⁹⁴ However, the notion that patriotic songs—even Confederate ones—naturally worked to facilitate national harmony also remained influential, and its persistence blurred the treasonable status of Confederate music far beyond the existence of the Confederate state. Indeed, Lincoln's oft-quoted call for the Union to reclaim "Dixie" in the wake of the Confederate surrender at Appomattox was but an early postwar reflection of the prewar notion that patriotic songs reflected the extent to which Americans had always been united, despite their differences, by a common patriotic impulse.⁹⁵ In this way, the ongoing appeal of Confederate symbols, the belief that expressing an allegiance to the Confederacy is a matter of free speech and civil liberties (not treason or disloyalty), and the enduring cultural power of the Lost Cause itself all have roots in the inability of Union military regimes to combat Confederate cultural expressions without being obliged to extend them a measure of legitimacy at the same time.