William A. Blair - With Malice Toward Some: Treason and Loyalty in the Civil War Era

With Malice toward Some

The Littlefield History of the Civil War Era

Gary W. Gallagher and T. Michael Parrish, editors

Supported by the Littlefield Fund for Southern History, University of Texas Libraries

2014 The University of North Carolina Press
All rights reserved
Set in Miller by codeMantra
Manufactured in the United States of America

The paper in this book meets the guidelines for permanence and durability of the Committee on Production Guidelines for Book Longevity of the Council on Library Resources. The University of North Carolina Press has been a member of the Green Press Initiative since 2003.

Library of Congress Cataloging-in-Publication Data
Blair, William Alan.
With malice toward some : treason and loyalty in the Civil War era / William A. Blair.
pages cm.(The Littlefield history of the Civil War era)
Includes bibliographical references and index.
ISBN 978-1-4696-1405-2 (hardback)ISBN 978-1-4696-1406-9 (ebook)
1. United StatesHistoryCivil War, 18611865Collaborationists. 2. TraitorsUnited StatesHistory19th century. 3. TreasonUnited StatesHistory19th century. I. Title.
E458.8.B83 2014
973.7dc23
2013046758

18 17 16 15 14 5 4 3 2 1

To George Richards, who encouraged us to dream big dreams

With Malice toward Some

Roughly twenty years ago, a graduate seminar planted the seed for this book. The professor raised the intriguing notion that perhaps the history of the U.S. South would have turned out more favorably for African Americans had Union authorities lined planters against a wall and executed them. The statement contained just enough seriousness to make it provocative. Students chuckled at the outlandish thought. Such a thing could not happen, could it? But the idea of a different outcome to the war intrigued. Additional reading yielded ample examples of those who sought revenge, not only northerners railing against Confederates but also Republicans condemning Democrats who opposed the Lincoln administration. Further investigation found letters from citizens housed in the National Archives that asked authorities to hang Confederate leaders higher than biblical proportions so that Jefferson Davis could replace Haman as the new standard for the height of a symbolic noose. But in the real world, no one beyond the Lincoln conspirators and the commandant of Andersonville faced execution, although plenty of former Confederates were indicted for treason. How can one reconcile what appeared to be a heartfelt hatred of the rebels, and expressions of vengeance, with the demonstrable record of leniency?

Finding the answer prompted a journey into understanding how Civil War era northerners conceived of, and acted upon, treason. The first revelation came in the extent to which ideas about treason proliferated as a primary means of constructing policy during the conflictespecially in guiding the military in defining the contours of loyalty on the northern and Confederate home fronts. Treason pervaded public discourse. It represents a challenge for a researcher to find a northern newspaper or periodical during any day of the war in which the words traitor and treason do not appear as a characterization of the rebels, of political opponents, or of the people suspected of holding divided loyalties in the United States. Popular conceptions of treasonor opinions formed outside of civil courts but in tracts, legislative halls, and executive chambers, and through actions in the streetsjustified confiscation of rebel property, including slaves, ships, and other contraband; allowed soldiers to arrest women who taunted them; enabled a Union general in New Orleans to hang a man for tearing down a U.S. flag; caused thousands of arrests by the military in the loyal states for something called treasonable behavior; encouraged as patriotic acts informing on neighbors with little or no evidence; enabled soldiers to prevent people from voting; allowed authorities to suppress newspapers and arrest editors who criticized the Lincoln administration; allowed them also to arrest political figures and judges; and motivated soldiers in their efforts to remove a clergyman in Virginia in the midst of an Episcopalian worship service because he refused to administer the prayer for the president. Numerous examples indicate an excessive use of force against so-called treasonous behavior, yet supporters of the administration shrugged such things off as necessary actions to save the nation and as the just deserts for traitorous behavior, imperfectly defined.

This realization raised another contradiction to resolve. The popular interpretation of treason, one that most served the interests of the United States during the war, often failed to meet the test for the highest crime against the nation-state, at least in peacetime. Treason is the only crime specified in the Constitution, put there deliberately to make it hard to prosecute. As chapter 1 discusses, it had been a political and personal crime under the British. Declare that you wished for the demise of the king, and you could swing from the gallows or suffer a death by torture. The framers tried to eliminate this British interpretation known as constructive treason, which allowed the king to punish people who had committed no actual crime beyond expressing disloyalty. Treason in the British system even allowed members of a traitors family to be executed or prevented from inheriting the property of the convicted. Corruption of blood or forfeiture, it was called. In the United States, one has to earn a treason conviction, first by levying actual war against the nation or aiding its enemies and, second, by having two witnesses, not one, swear you had done so. That mandate makes for a careful guarding of liberty, consistent with a desire to protect freedom of speech. This check on abuse of power, however, did not stop people either in the antebellum era or especially during the war from doing their level best to stifle speech that was determined to be offensive to the health of the national state. Yet during the Civil War, as detailed in chapter 2, thousands of northerners supported that the expression of treason, on the basis of popular conceptions of this crime rather than legal decisions, informed a range of policies against the suspected traitors at home.

As troubling as this sounds, northerners did not check their respect for legal traditions at the door when it came time either to kill the enemy or to imprison each other. In fact, the contrary case can be made. As much

What is missing from the literature of the war is the extent to which the courts, Congress, and the executive branch employed transnational currents of thought in order to create this plausibility. The Constitution assigns the president the power to defend the country from invasion or insurrection, but it does not say how. Are there limits to this power? What kinds of punishment can be visited upon an enemy or an insurrectionist according to the rules of war? Chapter 3 reveals that legislators, politicians, judges, and even public intellectuals borrowed from international law and the practices of warfare in the Atlantic world to determine how the country should treat the rebel traitorshow they could act as if the rebellion were a public war between foreign nations without losing the ability to prosecute Confederates as traitorous citizens. Particularly influential were two works, an eighteenth-century compilation called The Law of Nations by Emmerich de Vattel and an antebellum-era tome titled Elements of International Law by Henry Wheaton.

But this book does not focus on constitutional theory. It is far more concerned with practice, or the social and political consequences of ideology. Those who wish to learn about legal cases, lawyers, and judges will certainly be disappointed. Nowhere in these pages appears a discussion of original intent or of judicial review. In fact, much of the attention must be elsewhere than civil courts because the restrictive nature of treason law chased authorities toward using executive power to combat disloyalty. Plus, Lincoln and many of his advisers were not concerned with splitting