Uncivil Warriors: The Lawyers’ Civil War by Peter Charles Hoffer (review)

Peter Charles Hoffer is a prolific and highly accomplished legal historian. Much of his work has focused on colonial America and the early republic, but he has authored or coauthored books on a wide array of topics, including the landmark Supreme Court case Roe v. Wade (1973). In Uncivil Warriors he delves into the ways that lawyers shaped the progress and outcome of the Civil War. This is a topic that merits attention, as lawyers made up an important class in nineteenth-century America. Indeed, some of the most famous names of the era were lawyers—all the way up to the Union’s commander in chief, Abraham Lincoln.

Many biographies have been written about individual lawyers, and studies of landmark cases during the Civil War era abound. But until now no scholar has synthesized this literature to present a study of the legal profession. Hoffer aims to show how lawyers and the law shaped the war, and how it shaped them. Unfortunately, he breaks very little new ground, covering subjects that will generally be familiar to legal scholars and Civil War historians—the secession crisis, the three most famous arrests of civilians (John Merryman, Clement L. Vallandigham, and Lambdin P. Milligan), the Prize Cases (1863), Confederate privateers who were tried for piracy in 1861, the Emancipation Proclamation, the Thirteenth Amendment, and other legal issues. At pains to emphasize the role that lawyers played in shaping the outcome of the war, Hoffer at times simply rattles off names of lawyers involved in an activity or group (see, for example, his discussion of the Confederate Congress on pages 65–66). He also depicts Lincoln’s cabinet officers as “virtual law partners” and the president as a “manager of a law firm” (50, 52). The success of Lincoln’s presidency, in Hoffer’s view, was rooted less in his team of rivals than in his team of lawyers. “Lincoln’s experience in the law helped make the firm of A. Lincoln and partners perform well. Not so with [Jefferson] Davis and his cabinet” (64).

The book contains a number of factual errors. Some involve simple misdating. South Carolina’s ordinance of secession was adopted on December 20, 1860, not December 10 (25). Fort Sumter fell on April 13, 1861, not April 16 (70). Lincoln first informed his cabinet of his plans regarding emancipation on July 22, 1862, not August 3, although the subject did come up at a cabinet meeting on that later date (126–27). Clement Vallandigham was arrested on May 5, 1863, not May 7 (84). Other mistakes involve names: Lincoln’s first secretary of the treasury was Salmon P. Chase, not “Samuel Chase” (89); Philadelphia attorney George M. Wharton, not “George S. Wharton” (91); Secretary of the Navy Gideon Welles, not “Wells” (100); Joseph Holt was judge advocate general of the Union army, not “the advocate general” (121). And Fort Monroe is not “across the Hampton Roads from Newport News, Virginia” (126). These are a sample. As individual mistakes they are fairly minor, but taken together they reveal either a lack of familiarity with the Civil War era or a serious inattention to detail.

Even worse, Hoffer’s discussion of the landmark case Ex parte Merryman (1861) is so riddled with factual errors that it may actually get more wrong than right. In a chapter erroneously titled “In Re Merryman and Its Progeny,” Hoffer gets nearly every basic fact about this case wrong. Ex parte Merryman involved the arrest of a Baltimore County farmer named John Merryman, not a “planter” from Baltimore named “James Merryman.” Merryman’s crime, according to Hoffer, was “working hard to convince his fellow Marylanders to join the Confederacy” (70). In fact, Merryman had burned railroad bridges north of Baltimore to prevent Union soldiers from reaching Washington. Because Hoffer gets the details behind Merryman’s arrest wrong, he subsequently mischaracterizes the issues at stake, erroneously writing, “The question was whether promoting rebellion...