A review of With Malice
Toward Some: Treason and Loyalty in the Civil War Era by
William A. Blair (University of North Carolina Press, 2014) and Secession on
Trial: The Treason Prosecution of Jefferson Davis by
Cynthia Nicoletti (Cambridge University Press, 2017).
Was the act of secession in 1860-61
treason? This is one of the more important and lasting questions of the War. If
so, then the lenient treatment of Confederate officers, political figures, and
even the soldiers themselves following the War was a great gesture of
magnanimity by a conquering foe never seen in the annals of Western
Civilization. If not, then the entire War was an illegal and unconstitutional
invasion of a foreign government with the express objective of maintaining a
political community by force, an act that represented the antithesis of the
American belief in self-government regardless of Abraham Lincoln’s professed
admiration for government “of the people, by the people, and for the people.”
Until recently, the modern academy has
not given the topic much scholarly attention. Post war discussions of secession
and treason were best addressed in what is now classified as “Lost Cause
Mythology.” Historians regularly cast aside works by Albert Taylor Bledsoe,
Jefferson Davis, and Alexander H. Stephens as examples of special pleading
written by sore losers determined on refocusing the narrative away from
slavery. Most mainstream historical literature considered it a foregone
conclusion that the War was a “righteous cause” to forge a new union, as many
of the Radical Republicans professed during Reconstruction. The South had been
defeated, its leaders were on the “wrong side of history,” and secession, while
not necessarily classified as “treason,” was forever buried as an illegal and
inexpedient over-reaction to a Lincolnian bogeyman.
But as historians William Blair and
Cynthia Nicoletti illustrate, during the War and its immediate aftermath, these
questions were far from settled. And in 2018, with the charge of treason being
leveled against anything Confederate in popular culture, finding a historical
understanding of the subject has become a pressing need.
Did Northerners consider Confederate
citizens to be traitors? Blair argues that during the War the answer was a
resounding yes, though his confidence waivers when discussing the sentiment of
Northern Democrats, many of whom regarded the War as an unconstitutional
invasion of a separate government and the bastardization of American
principles. Blair documents both the strategy and tactics by the Lincoln
administration and the Northern public at large to combat “treason” in the
North and occupied South. He concludes that Lincoln violated the Constitution,
though he considers the offenses minor and necessary to preserve order, argues
that the United States military went too far on several occasions regarding
treatment of Southern civilians, and does not understand why troops were
deployed to Northern polling places during the War. The abuse of civil
liberties was palpable.
But by 1868, Blair suggests that the
“traitor coin” turned up heads. Northerners discarded their acrimony for
reconciliation, though in the early twentieth century some began dusting off
what can properly be labeled the “righteous cause myth,” my words not Blair’s.
Union veterans and their descendants bristled at the universal acceptance of
Confederate leaders and soldiers as “American” heroes. Were they not sill
traitors? Most of the American public didn’t seem to think so, and with good
reason. They weren’t, at least regarding a legal understanding of treason. It
seemed Bledsoe, Davis, and Stephens had won the legal argument and perhaps even
the “hearts and minds” of the American public. Even Republicans Teddy
Roosevelt, William H. Taft, Warren Harding, and Calvin Coolidge buried the
Party’s longstanding tradition of anti-Confederate sentiment and embraced the
former Confederacy as part of the American tradition.
Nicoletti’s treatment of the potential
Jefferson Davis treason trial underscores Blair’s position on postbellum
Northern sentiment. Nicoletti has written the first comprehensive study on
Davis’s incarceration, the details of his impending trial including fine
profiles of the legal teams both for the defense and the prosecution, and
Northern public reaction to the issue. Some of her arguments buttress long held
assumptions concerning why the trial was never held—most importantly the prosecution
was unsure if they could secure a conviction—while others favor the modern
establishment agreement on secession and the War that followed, i.e. it was all
about slavery and “white supremacy,” and that the Supreme Court finally
“settled” the issue in the 1869 decision of Texas v. White. It
didn’t. This is unfortunate because she missed an outstanding opportunity to
reshape both the public perception of secession and the historical “consensus”
on postbellum American thought.
Nicoletti, in fact, explains why she
feared writing this book and why she went out of her way to “show” she despised
the South and the “Lost Cause:” she wants a job and tenure. That speaks volumes
about the historical profession. Historical inquiry, even on sensitive and
“controversial” topics should produce accolades, not resentment or punishment,
but the gatekeepers of acceptable opinion do not reward independent thinkers
who tackle topics that may point to conclusions they wish to avoid. The Davis
case showcased some of the best elements of Northern society, and Northern
reaction to his release and the resulting silence on the treason question is
one of the more fascinating episodes of American history. How could a section
that just waged four years of bloody war against another people cheer when the
leader of that effort was released from prison? And how could men who denounced
the Confederacy pool money to free one of its most conspicuous symbols? Simple.
The majority of the Northern people considered Davis to be an American, the Confederacy
to be American, and the Confederate cause to be worthy of respect. The same
cannot be said for modern American society, which is why studying Northern
opposition to “Mr. Lincoln’s War” and the postbellum response to secession are
more interesting in many ways than the War itself, both North and South.
Blair argues that for most Northerners
“treason” was always a political rather than legal question, a pejorative used
to rally support for the men in blue and demonize those in butternut. The fact that
Davis never faced trail in open court is a validation of that position, for
once the issue moved from the realm of political to legal, it became unclear if
Americans, both North and South, could hang a man for a “crime” that the
founding generation committed in 1776. That would be un-American and nearly
everyone in America in 1867 could understand that, even if a few “righteous
cause” mythologists grumbled about the result and modern Monday morning
quarterbacks assert that they would have hung every Southern “traitor” from the
highest tree and fearfully punished the Southern people.
What these armchair generals don’t
realize is that the South was fearfully punished, and by blustering about retribution,
they expose how truly un-American the United States has become. But one should
expect no better with a modern education establishment that embraces “righteous
cause mythology.” Magnanimity and reconciliation are now deemed to be
detrimental to the American experience while victimization, reprisal, and
“justice” dominate public opinion. If the trial were held in 2018, Davis would
not make it to the courtroom.
If you enjoyed this piece, you will also
enjoy Dr. McClanahan’s 25 lecture course on “The War for Southern Independence.”
About
Brion McClanahan
Brion McClanahan is the author
or co-author of five books, 9 Presidents Who Screwed Up America and
Four Who Tried to Save Her (Regnery History, 2016), The
Politically Incorrect Guide to the Founding Fathers, (Regnery, 2009), The
Founding Fathers Guide to the Constitution (Regnery History,
2012), Forgotten Conservatives in American History (Pelican,
2012), and The Politically Incorrect Guide to Real American Heroes,
(Regnery, 2012). He received a B.A. in History from Salisbury University in
1997 and an M.A. in History from the University of South Carolina in 1999. He
finished his Ph.D. in History at the University of South Carolina in 2006, and
had the privilege of being Clyde Wilson’s last doctoral student. He lives in
Alabama with his wife and three daughters. More from Brion McClanahan
