I’m in the middle of reading James McPherson’s magisterial Battle Cry of Freedom. It’s an exceptional book, and it’s reminding me of the legal grey area in which the South resided: was it a separate nation, or was it essentially a criminal enterprise violating the laws of the United States? The Northern blockade of Southern ports made this problem particularly clear: if the South were just rebels, then whom were we blockading? Were we blockading ourselves?

Likewise with the confiscation of Southern rebels’ slaves. Under one theory, seizing rebels’ slaves and then freeing them was legitimate during wartime, though this would then validate the South’s claim that this was a war against a separate nation. Under another theory, seizing slaves was merely punishment for the crime of treason, though McPherson doesn’t elaborate on whether the North ever attempted to try Southerners for the literal crime of reason. And when I glance at the Constitution, here’s the entirety of what it says about treason (in Article 3, Section 3):

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

On this quick glance, it doesn’t sound like fighting in the rebellion could be treason, if ‘Enemies’ refers only to external enemies; if it can refer to internal enemies, I’d like to know how those are defined.

Two responses to all of this:

  1. I’ve always found it kind of fascinating that governments insist on maintaining legal formalism even when they’re doing things that are pretty clearly extra-legal. That’s something of a testament to the staying power of the rule of law. Even though the North strained the bounds of credulity, I wonder if we can point to legal violations that the North was blocked from carrying out. And the North still felt it necessary to go through this legal exercise, which shows that the government’s power was not wholly unchecked.

    I see something of analogy here between legal formalism and Karl Popper’s doctrine of falsifiability. The basic premise of falsifiability is that a theory is considered scientific only if it’s possible, somehow, to think of an experiment that could prove it false. Plenty of people have raised objections to falsifiability over the years, but to my mind it remains useful as a necessary but not sufficient epistemological tool: plenty of falsifiable theories are unscientific, but it’s hard to imagine a scientific theory being unfalsifiable. Similarly, maybe legal formalism rules out government exercises of power that couldn’t be read into the bounds of the law no matter how generously we read.

    And I wonder if anyone was fooled by all the elaborate contortions that the North went through to have its rebellion cake and eat its war too.

  2. I’m not a lawyer, so don’t really listen to me on any of the above. McPherson cites Constitutional Problems Under Lincoln, which seems like it may be a canonical work on this topic. It goes on the list.