The U.S. Constitution defines treason as levying war against the government and aiding and abetting its enemies. By that definition, every Confederate soldier in the Civil War—as well as every political leader —was a traitor, according to William A. Blair, Liberal Arts Research Professor of History at Penn State. Yet no one was executed for treason, and Confederate President Jefferson Davis was not even tried for the crime.
In his new book, With Malice Toward Some: Treason and Loyalty in the Civil War Era (University of North Carolina Press), Blair examines how the Northern states reconciled what appeared to be a heartfelt hatred of the rebels with a demonstrable record of leniency toward them.
"The literature of the Civil War era is massive, but a study of how Northerners conceived of, and acted upon, treason was missing," Blair said, noting that treason occurred as a topic in public discourse—pamphlets, newspapers, public gatherings and the like—as often as commentary on the progress of the war and the concern for soldiers.
Popular notions of treason, as opposed to court decisions, drove policymaking and caused members of the public sometimes to take matters into their own hands, such as storming a newspaper office or punishing an outspoken minister.
A lack of government bureaucracy and the extreme threat to the nation enhanced the sense of emergency that could sometimes lead to egregious actions, Blair noted. There was no Department of Homeland Security or FBI or any other federal agency to identify treasonous or disloyal acts. It was not clear what level of government—federal, state, or local—could make an arrest, or who should decide what acts were disloyal.
And it was unclear at the time what constituted the boundaries of loyalty and disloyalty.
"Spying, running guns, committing sabotage, and similarly blatant acts were obviously treasonous," Blair said. "But what about criticizing President Lincoln and his administration's prosecution of the war? What about selling food to people in one of the states in rebellion? Was that giving aid and comfort to the enemy?"
There were numerous and often confusing attempts in the North to deal with the issue. A joint Congressional committee, for example, investigated a series of Union generals who were accused of being soft on rebels and who had to defend themselves from suspicion of treason.
In other cases, military commanders determined treasonous acts. Civilians were liable to arrest and imprisonment by military commissions for speaking out against the war or Lincoln, or expressing sympathy for the Southern cause. "It is not a stretch to say that speech, whether written or spoken, was central to determining disloyalty in the minds of Unionists," Blair said.
President Lincoln himself in 1863 identified a list of top Confederate generals that included such iconic figures as Robert E. Lee and Joseph E. Johnston who deserved to be imprisoned for treason.
Hundreds of citizens in the Northern states were arrested by the military and local authorities for supposedly disloyal acts ranging from cheering for Jefferson Davis to aiding Union army deserters. Blair includes three lengthy appendices that suggest the nature and outcome of these proceedings.
Yet as passionate as many Northerners were in prosecuting traitors, their passion failed to overcome leniency. Thus while many cases of alleged disloyalty among civilians resulted in punishment, none ended with execution. Confederate soldiers of all ranks were generally paroled and faced no formal charges of treason.
Northerners took a pragmatic approach to the war's end. They realized the impracticality of trying thousands of Southerners for disloyalty in states where juries were unlikely to deliver guilty verdicts, and that continued cries of treason would interfere with the more important task of nation-building.
Ironically, the lenient approach allowed Robert E. Lee and other Confederate leaders to become heroic figures to later generations of Americans of all sections, said Blair, citing words written by Union Gen. George Thomas in 1868: "The crime of treason might be covered with a counterfeit varnish of patriotism, so that the precipitators of the rebellion might go down in history hand-in-hand with the defenders of the (U.S.) Government."
William Blair also serves as director of the Richards Civil War Era Center at Penn State. With Malice Toward Some is a volume in the Littlefield History of the Civil War Era and was supported by the Littlefield Fund for Southern History, University of Texas Libraries.
Explore further: America's deadliest war also is most memorialized, professor says