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  • ✪ "Did Robert E Lee Commit Treason?" by Dr. Allen Guelzo, Gettysburg College
  • ✪ DCB 2018 Kitchen 1
  • ✪ Some Sums by John Dersch
  • ✪ Heraldry


Good afternoon, and welcome to the second day of spring. (cheering) I'm Lucas Morale, professor of politics here at Washington and Lee University. It happens that I also have the opportunity to speak at other college campuses, and when introduced as professor of politics at Washington and Lee University, I always lustily add: yes, I got to bring Lincoln to the land of Lee. That said, I've been teaching here going on 19 years, and to speak of W and L as the land of Lee, I think yes, it deserves scare quotes. It is something of an overstatement. There is no required course on Robert E. Lee, the man who served as president of our boys' college from the end of the Civil War until his death in October of 1870. I don't know that our history department or politics department has ever offered a regular course on Lee. Just as there isn't one on George Washington, the other namesake of our illustrious university. And so this year, as part of the university's efforts to examine, throughout the year, how our history and the ways that we teach, discuss, and represent it, shapes our community. We've undertaken to explore our history as an educational institution. This, of course, includes its leading figure. This brings us to today's speaker. If professor Allen Guelzo is known for anything, it is for his insightful, eloquent, and scholarly work on Abraham Lincoln. Professor Guelzo is the Henry R. Luce Professor of the Civil War Era and Director of Civil War Era Studies, at Gettysburg College. Yes, that's how it's pronounced: Gettysburg. He's currently the James Madison Program Garwood Fellow, and Professor at Princeton University. Professor Guelzo is the only three-time recipient of the prestigious Lincoln Prize, awarded for a biography of Lincoln, called: Redeemer President. A study of the Emancipation Proclamation, which he not-so-mundanely titled, Lincoln's Emancipation Proclamation, and finally, for an examination of the Battle of Gettysburg, which he called: The Last Invasion. Needless to say, that work has more than a little to say about the subject of this afternoon's lecture, Robert E. Lee. So obviously, on a snowy day like today, the only question on your mind is: can a Lincoln scholar give Lee his due? On the most momentous question that follows Lee. Namely: why did Lee decide to fight against his country, when he chose instead to fight for his state, the Commonwealth of Virginia? To put, as our speaker did, a finer point on it: in so doing, did Robert E. Lee commit treason? Here to give us a sneak preview of the biography of Lee, that he is working on right now, please welcome our speaker, Professor Allen Guelzo. (applause) Thank you, Lucas, thank you, also, to the department of politics, to the provost, and the president, and all of you here at Washington and Lee for another opportunity to be on the campus. I spoke here five years ago, and a thumping snowstorm immediately descended on the campus. I'm back again. (laughing) Maybe this is how people from Gettysburg are regularly welcomed here. I mean, I understand that Gettysburg may have some, shall we say, indelicate associations for people from Virginia, but really, don't you think after 155 years, you could let it go? I mean! But I'm here now to talk about, not Gettysburg, or even about Lincoln, but about the man whose personal qualities and whose professional leadership were so bound up with the success and prosperity of this institution, and that is Robert E. Lee. I begin by reading a document. We, the undersigned prisoners of war, belonging to the Army of Northern Virginia, having been this day surrendered by General Robert E. Lee, CSA, commanding said army, to Lieutenant General US Grant, commanding armies of the United States, do hereby give our solemn parole of honor that we will not hereafter serve in the armies of the Confederate States, or in any military capacity, whatsoever, against the United States of America, or render aid to the enemies of the latter, until properly exchanged in such manner as shall be mutually approved by the respective authorities. Done at Appomattox, this ninth day of April, 1865. There are six signatories of this Appomattox Parole, beginning at the top of the list with Robert E. Lee, himself. And including his longtime staff officers, Walter Taylor, Charles Venable, and Charles Marshall. And it was formally countersigned by the federal assistant provost marshal, George H. Sharp, with the comment: the above named officers will not be disturbed by United States authorities, as long as they observe their parole, and the laws in force where they may reside. That promise of non-disturbance was at the core of what Lee wanted at Appomattox Courthouse. However much he and the rest of the Confederacy might have wanted to insist that their break for independence was the constitutionally-justifiable action of sovereign states, Abraham Lincoln and his administration had never regarded the Confederacy, legally, as anything except an insurrection. Nobody needed to tell Robert E. Lee that such an understanding covered him and all of his dwindling band of scarecrow Confederates with the odium of treason. Given Ulysses Grant's reputation for demanding surrender without the offer of any mitigating conditions, Lee had every reason to worry that a surrender demand from Grant would be the prelude to a bloody purge, which would make the Jacobins look spineless. Lee had plainly dreaded the possibility that Grant would demand unconditional surrender, and sooner than that, he warned, I am resolved to die. Indeed, we must all determine to die at our posts. And not only Lee. We had felt it as not improbable, wrote a soldier in the Rockbridge Artillery, that after an ordeal of mortifying exposure for the gratification of the military, we would be paraded through northern cities for the benefit of jeering crowds. Great was the relief on all Confederate hands when Grant's terms turned out to be surprisingly mild. The officers and men surrendered to be paroled, and disqualified from taking up arms again, until properly exchanged, and all arms, ammunition and supplies to be delivered up as captured property. There would be no death march to prisoner of war camps. No retribution, and above all, no treason trials. Or that, at least, was how it seemed. Until the night of April 14th, when Abraham Lincoln was assassinated in his box at Ford's Theater. Denunciations of Jefferson Davis and Robert E. Lee as traitors, and fit subjects for treason proceedings thereafter, ascended like shell-bursts. What has General Robert Lee done to deserve mercy, or forbearance from the people and the authorities of the North? The Boston Daily Advertiser shrilly demanded. If any man in the United States, that is, any rebel or traitor, should suffer the severest punishment, Robert E. Lee should be the man. William Lloyd Garrison's The Liberator. Dismiss any maudlin, post-surrender talk about Lee's dignity, refinement, or elegance. These qualities, wasted on a traitor, only made it just the more fit for Robert E. Lee to suffer death as an example to expiate his fearful crimes. Lee was the bloodiest and guiltiest traitor in all the South. And radical Republican George Julian denounced: in the name of God, the outrage of allowing old General Lee to roam up and down the hills and valleys of Virginia, free and un-arrested! "Hang, liberally," was his prescription. And Benjamin Butler, never bashful to express hostility, demanded that Andrew Johnson give concurrence to neither amnesty or pardon to Lee, for crimes which up to that moment, he had never acknowledged that he had committed. Well, chief among those baying for Confederate blood was John Curtiss Underwood. Who would become Robert E. Lee's particular bete noir. Underwood was New York born in 1808, and New York educated at Hamilton College. But he had married a Virginian. In fact, Maria Underwood was a first cousin of Stonewall Jackson. And he set up a law practice in Clark County, sandwiched between the eastern wall of the Shenandoah Valley and Lowden County. His move to Virginia had abated none of his northern suspicions of slavery. To the contrary, he joined the Liberty Party in 1840, the Free Soil Party in 1848, and sat in the first Republican National Convention in 1856 that nominated John C. Fremont. None of this made Underwood particularly popular in Virginia. Even as far north as Clark County. His participation in the Republican Convention guaranteed that: my life, to say the least, would be exceedingly insecure in the event of an outbreak in my vicinity. For it would be as easy in the mad whirlwind of passion and excitement, to implicate me as it was the Salem victims in the charge of witchcraft. And within a few months, Underwood was: exiled from the state for my opinions in favor of human equality. He eventually emerged as a sort of tribune for exiled southern Unionists who'd been victimized for their devotion to the Union and to the Constitution, in defiance of threats and persecution of the slave-holding aristocracy. With Lincoln's election, Underwood was rewarded with a patronage appointment in the treasury department, and then a recess appointment as the federal district judge for the Eastern District of Virginia, which Congress then reorganized in 1864, as the Federal District of Virginia. Technically, Underwood was operating under the boundaries of the so-called restored government of Virginia. Whose governor, Frances Pierpont, presided over a Virginia government in exile, in Alexandria. And Underwood's court had briefly met in Alexandria, where Underwood took up residence. Union control over Norfolk allowed the return of the district court there in 1864. Richmond, the other customary seat of Underwood's district would of course, remain out of federal control until 1865. Charles Sumner might sneer at the Pierpont government as: little more than the common council of Alexandria. But John Underwood took his task as a Unionist avenger with deadly seriousness. We know that we cannot go home in safety while traitors, whose hands are still dripping with the warm blood of our martyred brothers, remain defiant and unpunished. It is folly to give sugarplums to tigers and hyenas. It is more than folly to talk of clemency and mercy to these worse than Catilines. For clemency and mercy to them is cruelty and murder to the innocent to the unborn. If the guilty leaders of this rebellion shall be properly punished, our children's children will not be compelled to look upon another like it, for generations. Of course, there was the matter of the Appomattox paroles. But on April 26th, the Attorney General, James Speed, gave the Appomattox paroles a very different twist than Lee and his soldiers might have at first thought. "We must consider in what capacity General Grant was speaking," Speed wrote in reply to a query from Secretary of War, Edwin Stanton. It must be presumed that he had no authority from the President, except such as the Commander in Chief could give to a military officer. Presidents, only, grant pardons. Hence Grant's paroles could not have drawn a blanket of immunity over the rebel surrender. That was all the encouragement John Underwood needed. If there was any question whether the terms of parole agreed upon with General Lee were any protection to those taking the parole, the answer is: that was a mere military arrangement, and can have no influence upon civil rights, or the status of the persons interested. As the sole functioning federal district judge, operating in Virginia, bringing the penalties of treason down on the head of Robert E. Lee would belong to Underwood's jurisdiction. And Underwood was determined to prove that Lee had committed exactly what the Constitution described as treason in article three, section three. Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. On Friday, June second, 1865, Underwood empaneled and charged a grand jury in Norfolk. Which returned an indictment of Lee for treason, along with 36 other, high-ranking Confederates who read like a Who's Who of Virginia's Confederate leadership. Richard Yule, Chuebel Early, Wade Hampton, William Mahone, adjutant general Samuel Cooper, James Sedin, William "Extra Billy" Smith, and Henry A. Wise, the latter both former governors of Virginia. And not only Robert E. Lee, but his two sons, Custis and Rooney Lee, and his nephew, Fitzhugh Lee. Solemnly, the indictments stated: not having the fear of God before their eyes, nor weighing the duty of allegiance, but being moved and seduced by the instigation of the devil, did maliciously and traitorously ordain and carry on war against the United States of America, against the Constitution, government, peace and dignity, against the form and statute in such case made and provided. Lee may have had some suspicion from the first that Grant's generosity at Appomattox would be challenged. He had determined to keep as low a political profile as he could, and: procure some humble home for my family, until I can devise some means of providing it with subsistence. To no avail. The news of the indictment reached the 58 year old Lee when he returned to his borrowed quarters in Richmond, from a family visit to his cousin, Thomas Carter, and he squared off at once to fight back. On June 13th, he wrote directly to Grant. Demanding to know on what grounds he could be indicted for treason by the grand jury at Norfolk. Politely, but firmly, he reminded Grant that: the officers and men of the Army of Northern Virginia were, by the terms of their surrender, protected by the United States government from molestation, so long as they conform to its condition. Grant had actually heard of the indictments before Lee's letter reached him, and he immediately forwarded Lee's letter to Secretary of War Stanton with his own endorsement, confirming that: in my opinion, the officers and men paroled at Appomattox Courthouse cannot be tried for treason, so long as they observe the terms of their parole. For Grant, this was as much a personal as a legal issue. Good faith, as well as true policy, dictates that we should observe the conditions of that convention. But neither Stanton nor President Johnson were moved. And so Grant confronted Johnson directly, in a cabinet meeting. Mr. Johnson spoke of Lee, and wanted to know why any military commander had a right to protect an arch traitor from the laws. Grant, who was angry at this, heatedly explained to Johnson that he, as president: might do as he pleased about civil rights, confiscation of property and so on, but a general commanding troops has certain responsibilities and duties and power which are supreme. That included a parole, carrying immunity from prosecution. Besides, if he had not given such a parole, Lee would never have surrendered, and: we should have lost many lives in destroying him. And then came the stinger. I should have resigned the command of the Army, rather than have carried out any order directing me to arrest Lee or any of his commanders who obeyed the laws. Still, Lee, who was never an instinctive optimist, was not an optimist now. He told Walter Taylor that he had: made up my mind to let the authorities take their course. I have no wish to avoid any trial the government may order. He was showered with suggestions, indirect and direct, that he should save himself by flight, either to Mexico, with other Confederate exiles, where entering the military service of the French-backed Mexican Emperor, Maximilian, was a possibility. Or to England, where rumors in New York hinted that: a member of the English Parliament has offered General Lee a splendid residence in London, and a sum of money, the interest of which would support himself and family for life. But Lee's wife, Mary Custis Lee, was disabled by rheumatoid arthritis, and he could not countenance leaving two of his sons to face any music he would have avoided. To his brother, Charles Carter Lee, he wrote resignedly all about the indictments on June 21st. The papers are arguing the subject, pro and con, and I presume the government will decide in favor of the stronger party. I am here to answer any accusations against me. And cannot flee. And yet whether General Lee and Judge Underwood realized it, there were serious constitutional, legal, and practical obstacles in the path of such a conviction. Or even a trial, for treason of the Confederacy's most famous soldier. First of all, the Constitution's definition of treason is a very narrow one, and is based on English treason laws dating back to the 1350s, which limited treason to: attacks on the king's person or household, levying war against the king, or giving the king's enemies aid and comfort. If anything, the Constitutional provision, and it's statutory companion, The Treason Act of 1790, made it nearly impossible to obtain convictions for treason. Something which was dramatically exposed in the celebrated trial of Aaron Burr in 1807. By the time of the Civil War, only five convictions for treason had ever emerged from the federal courts. And all of those had occurred in the administrations of Washington and John Adams. Both of whom then pardoned the convicted. Was there really enough civilian legal traction to convict Robert E. Lee? Second, Lee would have to be tried in the jurisdiction where the treason occurred. The Constitution prefaces the section on treason with a section requiring that: the trial of all crimes, except in cases of impeachment, shall be by jury, and such trial should be held in the state where said crime shall have been committed. And the sixth amendment adds that: such a trial would have to take place in the district wherein the crime shall have been committed. That meant at the least that any trial of Lee would have to take place in Virginia. And while it might not have been difficult to create a cooperative grand jury in Norfolk, which had been under Union occupation since May of 1862, the wording of the sixth amendment seemed to require that a trial take place in Richmond, just as it had done in the Burr case. It would be a much more monumental task to find a civilian petit jury in Virginia which would vote to convict Robert E. Lee. Judge Underwood certainly understood that this would be one of his most formidable obstacles. Unless it is what might be called a "packed jury", 10 or 11 out of the 12 on any jury, I think would say that Lee was almost equal to Washington, and was the noblest man in the state. And then thirdly: the chief justice of the Supreme Court, Salmon P. Chase, would not cooperate. Abraham Lincoln had installed Salmon Chase as chief justice after the death of Roger Tawny, partly to kick the ambitious Chase upstairs, and remove him as a rival for the presidency, and partly to ensure that the administration's emancipation policies during the war would get a friendly hearing from a devout, anti-slavery man like Chase, if challenges erupted after the war ended. Chase, however, had agendas of his own. If he could not usurp Lincoln as president, he would certainly magnify his office as chief justice. Ever since Roger Tawny's unavailing effort to bind Lincoln's war policies with civil wraiths in Ex-parte Merryman, the Supreme Court, and the federal judiciary as a whole, had played a muted role in the conduct of the war. But as soon as the shooting was stopped, Chase and the high court, once again, moved to reassert themselves over against the executive and legislative branches of the government. And the most dramatic example of that would come in the case of Ex-parte Milligan, which struck down the legitimacy of military tribunals. Not that this persuaded Andrew Johnson or Congress to suspend the use of military tribunals. But it meant that Chase would refuse to participate in his auxiliary role as a federal circuit judge, so long as military tribunals were operating anywhere within a given district. While military authority was supreme in the South, Chase explained, no justice of the Supreme Court could properly hold court there. And by tradition, Chase's circuit responsibilities as chief justice embraced Virginia and North Carolina. Without Chase's participation in a capital case, Judge Underwood would have to try Lee's treason case by himself, and that would produce a verdict of, at best, dubious legality. As it was, Chase did not have a particularly high opinion of Underwood's competence as a judge. The anxious man, Chase remarked dryly, can have a trial before Judge Underwood, any time he wants. But the court will be a quasi-military court. And Chase would have nothing to do with it. And then thirdly, there is the matter of Lee's own self-defense. Two weeks after Judge Underwood's grand jury indicted him, Lee shrugged off his pessimism and began asserting a more defiant tone. To his cousin, Martha "Marky" Williams, Lee declared that he: was aware of having done nothing wrong. That sense of "nothing wrong" grew out of a theory of citizenship which, in turn, was based in a fundamental ambiguity in the federal Constitution. Nowhere in the Constitution as it was written in 1787 is the concept of citizenship actually defined. In the five places where the Constitution refers to citizenship, it speaks of citizens of the states, and citizens of the United States, but the Constitution makes no effort to sort out the relationship between the two, leaving the strange sense that Americans possessed a kind of dual citizenship, in their native state, as Lee called it, and in the Union. This played directly into the larger, pre-war argument that the Constitution had neatly divided sovereignty between the states and the federal union. Lee had no trouble arguing that Virginia and the other rebel states were merely using the reserved right of state sovereignty when they seceded. And, in my view, Lee reasoned, that meant that the action of the state, in withdrawing itself from the government of the United States, required its citizens to act with it. The act of Virginia, in withdrawing herself from the United States, carried me along as a citizen of Virginia. Because her laws and her acts were binding on me. In the event, of course, the Civil War had exploded that theory by sheer force, the war, Lee explained to his nephew, Edward Child, originated from a doubtful question of construction to the Constitution, about which our forefathers differed at the time of framing it. And it had now been settled by the arbitrament of arms. But, neither Lee nor any other individual Confederate could be called a traitor for having done so. The state was responsible for the act, he explained. Not the individual. Lee's citizenship argument was an ingenious one. And it would become a standard opening for other high Confederate officers. But there was a little-known flaw in the application of this reasoning to Robert E. Lee. And that flaw ran back to his resignation from the US Army at the opening of the war, on April 20th, 1861. Few people knew in 1865 that after the attack on Fort Sumter, Lee had been personally approached by Francis Preston Blair Senior, acting as an emissary from Lincoln, with the proposal that Lee assume command of the Union Armies. Lee refused, and instead submitted his resignation. An act which he believed released him from his personal oath as a soldier, and returned him to the simple status of a civilian. Two days later, on April 22nd, he was in Richmond. The next day, April 23rd, he assumed command of all of the military forces of Virginia. So it came as an unwelcome surprise to learn, through his son, Custis, that the war department's acceptance of his resignation had not taken place until April 25th. By which time, he was already in active command of the Virginia forces. I resigned on the 20th, and wished it to take effect on that day, Lee fumed. I cannot consent to its running on further. Because that put him in the position of taking up arms against the United States, while still technically an officer of its armies. If that did not make him a traitor, it certainly made him a mutineer. And either way, the penalty was liable to be stark. The secret of the meeting Lee had had with Francis Preston Blair did not remain a secret for long. It was, in fact, spilled in passing in a letter written to the National Intelligencer on August ninth, 1866, by Montgomery Blair, who alluded briefly to how: my father sounded Lee, at the request of President Lincoln, about taking command of our army against the rebellion. The spill widened in February of 1868 when, during a rancorous debate on the floor of the Senate, Simon Cameron, who had been Lincoln's Secretary of War, in April 1861, insisted that Lee had, himself, called on a gentleman who had my entire confidence, meaning Francis Preston Blair, and intimated that he would like to have command of the army. Cameron authorized General in Chief Winfield Scott to make the author, and it was accepted by him, verbally, with the promise that he would go into Virginia and settle his business, and then come back to take command. This was, Cameron added, false pretenses. For Lee then deserted. From that description, Lee had not only not been released from his status as a US soldier, but had used his resignation as a means of dodging responsibility for suppressing the rebellion, which he was actually in the process of joining. Lee indignantly wrote to Reverdy Johnson, with whom Cameron had been contending, to insist that he had never intimated to anyone that: I desired the command of the United States Army. That he had frankly told Francis Preston Blair that: I could take no part in an invasion of the southern states. And afterwards, forwarded my resignation to General Scott. By that point, however, other factors had intervened to render Lee's treason indictment a nearly dead letter. For one thing, Grant's threat to resign if the Appomattox paroles were set aside was nothing for Andrew Johnson to trifle with. Andy Johnson would soon need all the friends he could get. And on June 12th, 1865, Judge Underwood was called to Washington for consultations with Attorney General Speed, which effectively sent the Lee indictment to the back-burner. For another thing, Underwood and Johnson had a bigger fish to fry in the person of Jefferson Davis. Who had been imprisoned in Fortress Monroe, since May of 1865, and whom Underwood's grand jury indicted for treason on May eighth, 1866. But Davis's prosecution went aground repeatedly, on Chief Justice Chase's refusal to participate until the grip of military rule in the defeated Confederacy had been released. A trial date was set for November, 1867, but postponed again, and again, as both the chief justice and the president became embroiled in Andrew Johnson's impeachment trial. Johnson barely survived his impeachment, and in a gesture of contempt for the radical Republicans who had nearly destroyed him, Johnson issued a full pardon and amnesty for the offense of treason, to all and to every person, who directly or indirectly participated in the late insurrection or rebellion. On Christmas Day, 1868. The sword dangling over the heads of Davis, Lee, and the others, was now withdrawn. Nevertheless, Underwood's indictment had remained only nearly dead for three years, and Lee anxiously eyed any moment when it seemed it might bark back into life. I am considered such a reprobate, he half-joked, that I hesitate to darken the doors of those whom I regard, lest I should bring upon them some disaster. He kept close tabs on the progress of Jefferson Davis's indictment, and rejoiced in March of 1867, when Davis was released on bail. One great and impending evil has lately been relieved. The prosecution of Mr. Davis. Lee wrote to former South Carolina Senator, James Chestnut: and I have not words to tell the load that it has lifted from my heart, or to express my gratitude to the giver of all good, for this manifestation of his kindness. But he was jolted back into anxiety when the November, 1867 trial date was set, and he received a subpoena from the US District Court in Richmond, to appear before it as a witness in the case of Mr. Davis. He could never entirely breathe freely, until Johnson's Christmas Amnesty guaranteed the quashing of all prosecution against Mr. Davis, and others against whom proceedings had been institutive, and the restoration of those who had been obliged to leave the country. But none of this quite answers the original question. Did Robert E. Lee commit treason? For years after his death, unreconciled northerners continued to denounce Lee as the arch traitor of the rebellion. I think it's safe to say, declared Vermont Senator George F. Edmunds, that no one has committed the crime of treason against more light, against better opportunities of knowing he was committing it, than Robert E. Lee. Nor did the denunciations end there. In 1866 the Soldiers and Sailors Union League, a forerunner of the Grand Army of the Republic, angrily lamented: in the name of the defenseless heroes who perished at Andersonville, Belle Isle, and Libbey, that Robert E. Lee has been placed by the liberality of our government, beyond the jurisdiction of the military tribunals of the land, before which he could have been summoned to answer to the charge of treason, and received the reward of a traitor. Half a century after Appomattox, Union veterans were still denouncing Lee: for his dishonorable desertion to the enemies of his country, and his hatred for everything pertaining to the Union, hatred for its flag, hatred for its Constitution, and its civilization. And when Virginia proposed placing a bronze statue of Lee in the capital, unreconciled northern veterans demanded: how long would Congress tolerate a statue of Benedict Arnold in that hall? Not a single day. And yet far better Benedict Arnold than Robert E. Lee. But in the end, everything dangled on Lee's own carefully-honed distinction, until the Civil War settled matters once and for all, there was a plausible vagueness in the Constitution about the loyalty owed by citizens of states and the Union. And so long as it could be argued that Lee was simply functioning within the latitude of that vagueness by following his Virginia citizenship, it would be extraordinarily difficult to persuade a civilian jury that he had knowingly committed treason. There was also the problem of scale. Treason, in Anglo-American jurisprudence, knows no accessories. Where war has been levied, George Edmunds admitted, all who aid in its prosecution by performing any part in furtherance of the common object, however minute, or however remote from the scene of action, everyone who is involved in treason is a principle. And that would have compelled the federal courts to conduct treason trials in whole-scale fashion. Not to say, politically repugnant numbers. This forced Wendell Philips to acknowledge: we cannot hang men in regiments, nor cover the continent with gibbets. We cannot sicken the 19th century with such a sight. The best that Wendell Philips could hope for was to banish Lee with the rest. In the end, one has to say, purely on the merits, that Lee did, indeed, commit treason, as defined by the Constitution. But the plausibility of his defense, introduces hesitations and mitigations which no jury in 1865, even Underwood's packed jury, could brush by easily. That, combined with the reluctance of Ulysses Grant and Salmon Chase to countenance a treason trial for Lee makes it extremely unlikely that a guilty verdict would ever have been reached. The jury, which might have tried him, was never called into being. And without a trial by a jury of his peers, not even the most acute of historical observers is really free to pass judgment on the crimes or the innocence of Robert Edward Lee. Thank you very much. (applause) Lucas, I imagine there are questions. And if there aren't on this subject, then... (laughing) Let's begin here, yes. Two questions, one on a possible treason trial. It would have to take place in an area where the treason, that is to say, waging war against the United States took place. Correct. Like, why not Adams County, Pennsylvania? Obviously, he waged war there. Well, the question then would have been: is the mic picking up here, or did I walk away from it? I want to make sure the people hear what I'm saying. There actually was an indictment issued by a federal district grand jury in Pennsylvania on exactly those grounds, of Jefferson Davis. There was also one issued in Maryland. Same grounds, against Jefferson Davis. Lee, however, they do not pursue. And this is largely because Lee, as a military officer, is taking his orders from a civilian superior, the Confederate President, Jefferson Davis. So the assumption is that Lee is really headquartered, so to speak, in Richmond. That is why when the trial of Jefferson Davis does finally take place, or at least it begins, it takes place in Richmond. Because that is, so to speak, the locus of the crime. It would have been likewise for Robert E. Lee. The trial, in all likelihood, would have had to have taken place in Richmond. And finding a jury in Richmond that would have convicted Robert E. Lee of treason would really have been stretching things to an extraordinary degree. And one more question. Sure. I'll stand up so these people can hear the question: the Constitution defines treason as waging war against the United States, but the Constitution applies to US citizens. Correct. So, for example, the British who fought against the US in 1812 were not committing treason, the Italians in World War II and everything. Which brings us to the whole, another lecture, and many others about the right of secession. Correct. Which I would maintain was a Constitutional right, and if the states, Virginia and whatever, had the right to leave the Union, they are no longer part of the Union, so they are a free and independent country, just as the British were in 1812, the Mexicans in the 1840s, and so on, there. So how, let us, and you'll probably wanna argue a point, but let us assume for the sake of this, that if secession was legal, he is now no longer a citizen, he has nothing to do with the US, in addition to his Virginia citizenship, so where would the treason be there in fighting against the United States, if you are not a United States citizen? Did everyone hear me? (muttering) Well, of course, secession is a legal and Constitutional impossibility. Therefore, the entity describing itself as the Confederate States of America never had any legal existence, and for that reason, Abraham Lincoln will never once, in all of his documents, ever refer to the Confederate States of America. He will talk about those states in which the authority of the laws is not currently operative. It wasn't because he was a lawyer who was getting paid a dime extra for every word. It was because he is trying to avoid, at any point, even so much as the slightest concession that what the Confederacy claims to have done was in any way legal. My argument about secession, of course, is a long one. I will condense it and simply say that: secession is a practice which is very strange if it's Constitutional, since the Constitution never mentions it. You would think that, something as serious as secession from the Union would, in fact, be incorporated into the Constitution, but it's not there. There's no reversion clause in the Constitution, and if there's no reversion clause, and it's very funny to assume, at least to me, that an action that the Constitution nowhere describes and provides no mechanism for, is therefore perfectly legal. So I think there is a long argument that way, which you will lose, but let me be more specific. Because Lee did not actually make that argument. Lee's argument was strictly limited to the question of citizenship, and on that point, here is a real problem. And that is, as I described, until the 14th amendment, and we're talking at this point post Civil War, until the 14th amendment, there is no authoritative definition of what constitutes citizenship. This is why Roger Tawny in Dred Scott Versus Sanford, attempts to supply, arbitrarily, a definition of citizenship based on race, but there was no such definition in the Constitution. Now, from that, Lee will draw the argument that, alright, he is a citizen of the United States, but he's also a citizen of Virginia. Virginia has declared that it is doing thus and such. Well, he may not agree with the thus and such, but as a citizen of Virginia, he is obliged to do it. So he wasn't touching the secession question. What he was touching upon was the vagueness about citizenship, and simply observing that, well, given that vagueness, you have to understand that my first obligation, then, would have been to go with Virginia. But of course, the 10th amendment says that any powers not specifically granted to the central government-- No, no, it says those powers are about the states and the people of the United States. The 10th amendment nowhere mentions secession. It nowhere justifies it. Exactly. And secession is mentioned nowhere in the Constitution. Quite true. And it says: any powers not specifically granted to the central government, nor specifically denied to the state, are reserved for the state. Nothing is mentioned, so it's not, so, so that would be read to say that if-- There's also nothing about building a capitol. There's nothing about the national bank. We're gonna do Hamilton and Jefferson again, you see? And it seems to me that the whole question did finally achieve a settlement, you know, a long time ago. And the appeal to heaven that was made by the southern states was turned down. That should tell us something. (laughing) But I want to leave aside the question of secession, because we can argue about that indefinitely, and to no purpose. But I think the question for Lee, because Lee does not invoke the question of secession. What Lee invokes is the question of citizenship. And on that point, I don't think it was the strongest case in the world, but the question then becomes: could you have gotten a jury in 1865 or 1866 to have convicted him on that basis, given that vagueness? I mean, we do not, and this is also in the Constitution, we do not judge people on the basis of ex post facto considerations. We don't pass the 14th amendment and then look back and say: ah-hah, you didn't, you might not have known that there was gonna be a 14th amendment, but we're gonna hold you to it. Well, we don't do that, we can't do that. And Lee is basically pleading that. He's saying: at the time, no one had specifically defined for me what the boundary between Virginia citizenship was and United States citizenship was. Therefore, whatever Virginia did, right or wrong, I'm obliged to do what Virginia is telling me to do. That's his rationale. And as I say, in a court of law in 1865 or '66, that would, that might not have been the most potent argument possible, but you don't have to have the most potent argument. All you have to do is have an argument that creates a reasonable doubt. So, now, another question. Yes, sir? So, did Lee agree to unconditional surrender or what, that Grant devised-- No, no he's not agreeing to unconditional surrender, because the paroles themselves are a condition. There were some other conditions that Grant allowed. One was about being able to take home horses and mules. One was about being able to use the paroles to get free transportation on the railroads. There were a number of things. Grant could very easily have said: unconditional surrender. He did that at Fort Donaldson, that was what made him famous. What does unconditional surrender mean? Unconditional surrender literally means you put yourself at the mercy of the person you're surrendering to. You have no defense, no claims, nothing. That person can take the opposition and put them up against a barn door and shoot them. That's unconditional surrender. That is what Lee is afraid, that Grant is going to demand. Because that's Grant's reputation. And if Grant had, I mean, this is part of what Lee is doing with the correspondence that goes back and forth between himself and Grant in the days before Appomattox Courthouse, Lee's trying to feel out Grant and get a sense that, you know, what is Grant liable to demand here? And if Grant's gonna demand unconditional surrender, then we're gonna fight it out to the last cartridge. Because there's no point. Instead, Grant sends up all the signs like, no, no, no, it's not gonna be like that. Partly that was a practical consideration on Grant's part. What Lee did not know was that Grant had so far outrun his supply lines that Grant admitted afterwards, if Lee had kept pushing on for another day, he would have had to have given up the pursuit. He was so strung out on those roads back to Petersburg and Richmond. Also, he and Lincoln had had long conversations at Petersburg, and Lincoln had lamented to Grant how the country was getting very close to bankruptcy. Because of the war, and any opportunity Grant might find to bring the war to a conclusion as quickly as possible would be all to the good, and would have the president's sanction. So Grant has this in mind, and Grant's trying to work with that. Lee doesn't realize that Grant has those restraints, and Grant's not giving it away. So Grant gets to appear generous. I, he's not so much generous as he is being very practical. But generosity was the result of it, and that was what Lee wanted. No unconditional surrender. We get conditions, we get terms, and above all, we get the paroles. Yes? Did any of the participants in this drama point out the irony that using such rigid definition of treason, our founding fathers would have been guilty and tarred with the same brush, had they been on the losing end versus the victorious end? (overlapping interjections) Lee did make a comment at one point, talking about how, and this is in a letter that he wrote to Lord Acton, that if Washington had failed in his effort, then he would have been branded a traitor to the crown, and would have been punished accordingly. Now, the difference, and Lee does not enter into this, and there's a very, very good reason for why he doesn't. George Washington, of course, was at the head of a revolution. What the South claimed it was doing was a secession. Now, you might think: well, what's the difference between the two? Very, very, very big difference. A revolution is about discontinuity. And of course, that's what our American Revolution did. We overthrew a monarchy. We created an entirely different system of government, a republic, that meant we had to have new laws, we had to have new this, new that, everything had to be done from scratch. Well, not perhaps quite everything, but most of it had to be done from scratch. A secession is about a peaceful continuity. You simply detach yourself from the old organization, but you keep on running with basically the same laws. And this is what the Confederacy claimed it was doing. Why? Why didn't the Confederacy claim it was a revolution? Because if you introduce discontinuity, then what's the first thing that's going to be held to be discontinuous? Slavery. At that point, all the laws about slavery become a matter of debate, they become a matter of contention. And who knows? Perhaps the basis of some kind of slave insurrection. So, the South is always going to insist that what it is doing is seceding. Anyone in the south who pops up and says, "we're having a revolution", is immediately put down; they don't wanna hear it. You know, the South is not doing a revolution. But if you're not doing a revolution, then you're not really doing what George Washington did. So, there's another interesting legal dilemma that enters into this. There's an interesting discussion of this. Lincoln, in fact, enters into some of the details of this in his special message to Congress of July fourth, 1861. But there is a significant legal definition between secession and revolution. And the two cannot be jumped from one to the other with a lot of ease. Let's do one more question. Yes? So, by that last, ah, last answer, would it be a different situation if the South had seceded, not technically with the same governments? Because of course, if it's a revolution, then you're forming a new government of sorts, even if it's the same people at the helm, but if they broke away, as their current states, as the 13 colonies did, and maintained the names of the states but said, explicitly: we are having a revolution. They've held a constitutional convention where obviously the slavery law probably wouldn't be changed. At that point, would they be considered an independent nation, (muttering). Well they could have. They could have said: what we're doing is a revolution. But they didn't. In fact, they worked very hard to stay away from the word "revolution", and insist that what they were doing was secession. Because if it's revolution, then you're putting yourself at risk. If it's revolution, then what's going on is something which could result with you having your head in a noose. As George Washington might have. Now, of course, it turns out differently. George Washington becomes the first president, and even has a statue on Trafalgar Square. (laughing) That was a big surprise to discover that several years ago, walking around Trafalgar Square. There's a statue of George Washington here? What? (laughing) Alright, but it was a revolution, he took his chances, but it turned out okay. The secessionists were claiming that they were not doing a revolution; they didn't wanna take their chances. And Lincoln says: if you wanna take your chances with a revolution, that's one thing. Because Lincoln is very forthright. He says: every people have a revolutionary right to overthrown their government. But call it a revolution, then, and let the full consequences of that take place. Don't try to soft-pedal it and call it a secession, when secession is not, in fact, either Constitutional, or something which is recognized in ordinary law. That's Lincoln's argument. Well, actually, another person actually called secession: nothing but revolution. And his picture is on that slide. So I'm still trying to figure out how to make that jive. Yes, that was actually before the Civil War breaks out. Lee writes to his wife and writes: secession? Ah, that's nothing but revolution! Alright, thank you very much.



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