He applied the “Page 99 Test” to his latest book, With Malice toward Some: Treason and Loyalty in the Civil War Era, and reported the following:
In the case of With Malice Toward Some, the Page 99 rule does not quite hold true. This part of the book marks the end of Chapter 3 where I try to tease out Abraham Lincoln’s use of international law to support various executive measures taken during the Civil War. The president was pragmatic in his thinking, borrowing from a wide range of sources. It is doubtful that he consciously sought international law to fortify his determination of “military necessity.” Yet he applied international principles—because it made sense and helped to justify policies such as military emancipation.Learn more about With Malice toward Some at The University of North Carolina Press website.
But this represents only a small slice of the book which deals with the broader issue of how northern “popular” notions of treason allowed for hard measures against not only the Confederate traitors but also those people suspected of disloyalty in the Union. By popular, I mean rationale formed by the public outside of civil courts but also in tracts, legislative halls, executive chambers, and actions by mobs in the streets. Much like this country closed ranks after the terrorist attack on 9/11, the Civil War public adopted ideas about punishing traitors that allowed soldiers to arrest Confederate women who taunted them; caused thousands of arrests by the military in the loyal states for something called “treasonable behavior”; and allowed authorities to suppress newspapers, arrest editors, and deny access to the ballot. Treason also assumed a partisan dimension as a means of winning elections by branding the opposition as disloyal. But there was a good side to this mentality. It helped save the nation. And it allowed for the seizing of slaves from Confederates, contributing to greater freedom in this country. So the public’s notion of treason also served a greater good. That kind of paradox runs throughout the book.
Ultimately, the book includes more than the Civil War. It covers the way treason was deployed during the sectional crisis over fugitive slaves, Kansas, and John Brown’s Raid on Harpers Ferry. And it takes the analysis into Reconstruction to understand why no rebel was hanged for treason. Even though no one was executed, the rebels did receive punishment through loss of property and some of the rights of citizenship—at least for a time.