With Malice toward Some: Treason and Loyalty in the Civil War Era by William A. Blair (review)

One could be forgiven for thinking that there is nothing new to write about when it comes to the Civil War. But William Blair’s new book, With Malice toward Some, belies such an impulse. Blair’s book is an excellent example of new and exciting work in the field. With Malice toward Some is a work of popular constitutionalism, exploring conceptions of treason on the ground during and after the war. Blair takes us beyond the usual myopic focus on Lincoln, Lincoln in his cabinet, or Lincoln and Congress to show us how Americans thought about and experienced the law of treason in the 1860s. Legal history has traditionally been a top-heavy field, and with respect to the legal history of the Civil War, the focus on those in power—the makers of formal law—has been even more pronounced.

Blair rejects this approach, showing his reader how the law of treason touched the lives of ordinary people during the Civil War. As he demonstrates quite convincingly, the law and its implementation were chaotic. Federal and state and local authority overlapped, sometimes with duplicative effect and sometimes in tension with one another. The same was true with respect to civil and military power, which was often deployed in unpredictable ways that only increased the burdens on Americans accused of treason. Individuals whose loyalty came under suspicion would have found themselves the target of a multiplicity of legal regimes whose boundaries were only vaguely defined and haphazardly policed. From the vantage point of the ordinary citizen, the law of treason must have seemed a dizzying mess.

And treason itself was an elastic concept. Although the Constitution defined treason narrowly and with specificity so as to avoid the abuses of English “constructive” treason prosecutions, in which a person could be beheaded for speaking (or thinking) ill of the monarch, Union officials stretched the definition of treason to encompass all manner of disloyal activities, including those that we think of as protected by the First Amendment. Blair details the variety of applications to which the law of treason was put in the Civil War era, showing us how treason became entwined with free expression, eligibility for the franchise, election monitoring, and postwar punishment of Confederates for rebelling against the United States.

Blair is engaged with a number of historiographies. With Malice toward Some speaks to the literature on Lincoln as tyrant, arguing against Mark Neely’s characterization of Lincoln’s civil liberties violations as relatively minor. Blair’s assessment of Lincoln’s record is slightly more critical, pointing out that civil arrests by federal authorities do not reflect the full picture of wartime suppression of civil liberties because military officials and state and local authorities performed similar functions. He also takes Union officials to task for targeting high-profile individuals who spoke against the war in the hopes that their fate would deter such behavior more generally, but Blair halfheartedly lets Lincoln off the hook because “the greater context [of wartime perils] must factor into any critique of the administration” (12).

Additionally, the book speaks to the literature on the nineteenth-century American state, noting that the collaboration and conflict between government officials at the local, state, and national levels arose because “the federal government did not have enough manpower on the ground” (126). The state in Blair’s account was powerful despite its lack of organization; the paucity of centralized authority left room for other levels of government to act on the citizen in negative ways. Drawing on John Witt’s recent work on the Lieber’s Code, Blair also injects “an Atlantic-world flavor” into Civil War history by demonstrating how American theorists borrowed from the larger intellectual tradition of international law as it had developed from the sixteenth century onward (66). Civil War–era legal thinkers read the ideas of international legal...