Treason is defined by the Constitution in Article 3, section three, as consisting in levying War against the United States or in adhering to their Enemies, giving them Aid and Comfort. Stark as that prescription is, fewer than 30 people have been tried for treason by the federal courts. Two of these—Philip Wigle and John Mitchell—were convicted for their role in the 1794 Whiskey Rebellion but then pardoned by President George Washington. Aaron Burr was tried for treason after a failed conspiracy to set up his own political empire in the Mississippi Valley, but he eluded conviction because, as Chief Justice John Marshall reasoned, “war must actually be levied against the United States.” Burr’s plot hadn’t become more than a plot, and since “conspiracy [to levy war] is not treason,” Burr walked free.
But surely the oddest treason trial is one which never took place, that of Robert E. Lee. Surely, if anyone could be said to have levied war against the United States, it must have been the man who for four years inflicted one embarrassing defeat after another on United States troops during the Civil War and almost single-handedly kept the Southern Confederacy alive until its final expiry in 1865. What aggravates Lee’s offense is his pre-war career of over 30 years as a U.S. Army officer and the offer of command of the U.S. Army made to him at the outbreak of the Civil War in 1861, which he refused. “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 after Lee surrendered his dwindling, scarecrow band of rebels at Appomattox Court House on April 9, 1865. Lee was “the bloodiest and guiltiest traitor in all the South,” and Congressman George Julian foamed at the outrage of allowing “old General Lee” to roam “up and down the hills and valleys of Virginia,” free and unarrested.
But roam he did, because when Lee surrendered, he secured from Union General-in-Chief Ulysses S. Grant a “solemn parole of honor” that protected Lee and his army “from molestation so long as they conformed to its condition.” Grant had been eager to avoid any further bloodbaths, and granting the paroles was, by his estimate, the easiest way to induce Lee’s surrender.
That was until five days later, when President Abraham Lincoln was assassinated at Ford’s Theatre. At once, the new president, Andrew Johnson, and his attorney general, James Speed, decided that Grant “had no authority” to offer anything like a pardon to Lee. The Appomattox paroles were “a mere military arrangement and can have no influence upon civil rights or the status of the persons interested,” in the words of John C. Underwood. And on June 2, Underwood, the sole functioning federal district judge in Virginia, impaneled a grand jury in Norfolk (which had been occupied by Union forces since 1862) that issued an indictment for treason involving Lee, his two sons (both Confederate generals), and 34 other high-ranking Confederates. Underwood, a Unionist Virginian who had suffered personally at Confederate hands, was in deadly earnest: Lee “did maliciously and traitorously . . . ordain and carry on war against the United States of America.”
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Lee took Underwood’s threat just as seriously. On June 13, he appealed to Grant, and Grant in turn wrote to Secretary of War Edwin Stanton to insist that “the officers and men paroled at Appomattox C.H. . . . cannot be tried for treason so long as they observe the terms of their parole.” But neither Stanton nor 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.”
Grant was not the only one unlikely to cooperate with Johnson and Underwood. Abraham Lincoln had installed his former Treasury secretary, Salmon P. Chase, as chief justice of the Supreme Court in 1864, partly to 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 antislavery 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 could certainly magnify his office as chief justice. The Supreme Court and the federal judiciary as a whole had played a muted role in the conduct of the war, despite their unhappiness with Lincoln’s suspension of the writ of habeas corpus and the use of military commissions to try civilians. As soon as the shooting stopped, Chase and the High Court moved to reassert themselves, and the most dramatic example of that would come in the case of Ex parte Milligan, which struck down the legitimacy of the military commissions.
Not that this persuaded Andrew Johnson or Congress to suspend the use of military commissions—but it meant that Chase would refuse to participate in his auxiliary role as a federal circuit judge so long as military commissions 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 a 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 drily, “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.
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Whether Lee or Underwood realized it, there were also some serious constitutional and legal obstacles in the path of a conviction—or even a trial—for treason. For one thing, the Constitution’s definition of treason is really a very narrow one, and much would dangle on the exact meaning of “levying war.”
Abraham Lincoln had insisted from the beginning that since war is a condition that exists only between two sovereign nations, and since the Confederacy was in his view only an insurrection, no actual war legally existed between the North and the South. (The United States, for instance, never declared war against the Confederacy.) So it was not quite clear that Lee could be, by Lincoln’s definition, guilty of levying war.
Lee himself was quite capable of playing on other Constitutional ambiguities, especially concerning citizenship. Nowhere in the Constitution, as it was written in 1787, is the concept of citizenship actually defined. In the five places where it refers to citizenship, it speaks of citizens of the states and citizens of the United States. But no effort to sort out the relationship between the two is apparent, leaving the strange sense that Americans possessed a kind of dual citizenship, in their “native State” (as Lee called it) and in the Union.
Lee, curiously, had never put much faith in Southern appeals to state sovereignty to justify secession from the Union. But the obligations he owed Virginia as a citizen were another matter. In “my view,” Lee reasoned, “the action of the State, in withdrawing itself from the government of the United States,” required its citizens to act with it. Whether that withdrawal was right or wrong was irrelevant. “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, Lee conceded, the Civil War had exploded that theory by sheer force, and the 14th Amendment would explode it by law in 1868. But in 1861, Lee added, neither he nor any other individual Confederate could be called a traitor for having followed their state. “The State was responsible for the act, not the individual.”
Finally, there was a practical consideration that not even Judge Underwood could ignore. The Constitution requires that the Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed, and the Sixth Amendment adds that such a trial must take place in the district wherein the crime shall have been committed. Hence, any trial of Lee would have to take place in Virginia. While it had not been difficult to create a cooperative grand jury in Norfolk, the wording of the Sixth Amendment seemed to require that such a trial take place in Richmond, and there it would be a much more monumental task to find a civilian petit jury which would vote to convict Robert E. Lee.
Underwood certainly understood that this would be one of his most formidable obstacles. “Unless it is what might be called a packed jury,” Underwood complained, then, instead of convicting Lee, “ten or eleven out of the twelve on any jury, I think, would say that Lee was almost equal to Washington, and was the noblest man in the State.”
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On June 12, 1865, Judge Underwood was called to Washington for consultations, which effectively sent the Lee indictment to the back burner. The Johnson administration’s vengeful eye turned instead to Confederate president Jefferson Davis, who had no parole umbrella to protect him and whom Underwood’s grand jury indicted for treason on May 8, 1866. Once again, however, Chief Justice Chase balked while federal military commissions were still operating in Virginia, and no trial date was set until November 1867.
By that time, Chase and Andrew Johnson were both becoming involved in what would mushroom into Johnson’s impeachment trial. Johnson survived impeachment, but only barely, and almost as a gesture of contempt for his tormentors in Congress, he 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.
Still, none of this quite answers the original question: Did Robert E. Lee commit treason? Half a century after Appomattox, Union veterans were still denouncing Lee for “his dishonorable desertion to the enemies of his country.” When Virginia proposed placing a bronze statue of Lee in the Capitol, 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.”
One has to say, purely on the merits, that Lee did indeed commit treason, if levying war against the United States and giving aid and comfort to its enemies are to have any meaning. But treason de facto does not always become treason de jure. The distance between the two can be measured by Lee’s own carefully honed distinction: Until the Civil War settled matters, there was a plausible vagueness in the Constitution about the loyalty owed by citizens of states and the Union. So long as it could be argued that Lee was functioning within the latitude of that vagueness, it would be extraordinarily difficult to persuade a civilian jury that he had committed treason de jure. Such a jury was never called into being, and without a trial by his peers, not even the most acute of historical observers is really free to pass judgment on the crime or the loyalty of Robert E. Lee.
Allen C. Guelzo is the Henry R. Luce professor of the Civil War era at Gettysburg College. This essay is adapted from an address at Washington and Lee University earlier this year.
