Robert E. Lee On Trial For Treason

Source: https://isi.org/modern-age/robert-e-lee-on-trial-for-treason/

by: F.H. Buckley | Published: March 17, 2022

Until it was removed in 2020, a Civil War memorial in my Alexandria, Va. bore an encomium to the Confederate dead taken from Robert E. Lee’s farewell order to his army. “They died in the consciousness of duty faithfully performed.” That pithy phrase epitomizes what Lee saw as the center of his moral code, and yet many today think the man was a traitor, and that is what Allen Guelzo calls him again and again in Robert E. Lee: A Life.

However well-written, Guelzo’s book might be (and we’d expect nothing less from so distinguished an author), its contribution to the literature hangs or falls on the label of traitor it applies to Lee. If Lee saw fidelity to duty as his lodestar in life, Guelzo gives us an account of a faithless servant, a man whose accomplishments are grudgingly admitted, but which pale before the man’s decision to accept command of a Virginian army in 1861.

If I wasn’t swept along by Guelzo’s denunciations of Lee, it’s because I too have broken some promises and oaths along the way. In 1982, when I was admitted to the Law Society of Upper Canada, I swore that I would “be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, her heirs and successors according to the law.” And faithful I was, for 32 years. But then I broke that oath when I became an American citizen and renounced all allegiance and fidelity to foreign princes and potentates. Nor would anyone have questioned my right to foreswear the prior oath, since the right of emigration is well-recognized in international law.

What of Lee, then? Was Virginia a separate country after it seceded, even as America and Canada are separate countries? If so, Lee can no more be blamed for his loyalty to his state than I can for my loyalty to America. For that matter, what of that other resident of Alexandria, George Washington, who also abjured his duty to the mother country when he assumed command of a Continental Army in June 1775. Two months later, George III announced that he proposed to suppress the rebellion and bring the traitors to justice, which is what Lincoln signaled he would do when he called up 75,000 volunteer troops on April 15, 1861.

Washington won and Lee lost, but that shouldn’t be relevant unless you think that victor’s justice should decide the matter, and history provides us with too many despicable victors to believe that. The question, then, is whether Virginia had the same moral claim to secede as the Founders did in 1776. And there are two reasons why a fair-minded person might have thought it did.

First, many in 1861 thought that the Union was a compact amongst states which retained the right to secede when they ratified the Constitution. Those who rejected the compact theory pointed to the Articles of Confederation, which had provided “that the Union shall be perpetual.” But if the Articles hadn’t been rendered nugatory by the new Constitution, then George Washington had been illegally elected president in 1789, since the Articles could not have been amended without a unanimous vote of every state and Rhode Island didn’t ratify the Constitution until 1790. So much for that argument.

Even before the 1787 Constitutional Convention, it had become something of a dead letter, and leaders such as Washington blithely ignored it when it got in the way. Whatever government might exist, said Alexander Hamilton, was “dissolving or already dissolved.” Then, at the Convention, the Framers clearly contemplated the possibility of secession. Connecticut’s Oliver Ellsworth and James Wilson, both future Supreme Court justices, agreed that a breakup of the country was possible if the delegates could not agree on how to amend the Articles of Confederation, and that was also how Hamilton saw things in Federalist 6. James Madison seems to have proposed a walk out in the middle of the Constitutional Convention, which might have led to the creation of three separate countries. Thomas Jefferson was in Paris at the time, but later the author of the 1798 Kentucky resolutions proposed that a state could nullify federal laws, and nullification rights are tantamount to secession rights. If fidelity to the intentions of the Founders matters in interpreting the Constitution, then Virginia became a separate country in 1861.

In addition, Virginia could make a special case for secession rights. In Virginia’s ratification debates, James Madison told his fellow delegates that the state could leave the Union if things didn’t work out. The text of the ratification resolution itself provided for exit rights if the powers granted to the new federal government were perverted to the “injury or oppression” of Virginians. And that was how the delegates to the Virginia secession convention saw things in 1861. The Convention held three votes on secession and the first two failed. The third succeeded only after Lincoln called up the troops and seemed prepared to invade the state.

Was that the kind of injury or oppression that would trigger secession rights? One person who would have said so was James Madison. His Virginia Plan would have given Congress the power “to call forth the force of the Union” against any state that failed to fulfill its duties. But when this came up for discussion at the Constitutional Convention, Madison regretted the provision. “The use of force against a state, would look more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound.” But that is just what happened when federal troops occupied Alexandria, and its young men marched out to join Lee’s army from the spot where the Civil War statue used to stand.

What about slavery? There’s no moral case for secession rights where the purpose is to defend an immoral institution. But then emancipation really wasn’t on the table in 1861. That came later. In 1861 the strongly anti-slavery William Seward, who would become Lincoln’s Secretary of State, said, “the question of slavery is not now to be taken into account. We must save the Union.” He proposed a Thirteenth Amendment, not to abolish slavery as that amendment would do in 1865, but instead to guarantee forever the security of slavery in the states. For his part, Abraham Lincoln signaled that he’d be content with this, in his First Inaugural in March 1861.

Take away slavery, and you’re left with a section of a country that wants to secede. In like circumstances, the governments of Canada and Britain have conceded that the democratically expressed wishes of that section cannot be ignored, and this represents the received idea of secession rights in international law today. If that is right, Virginia was justified in seceding and Lee was not a traitor.

Clear all that away, and we’re left with the man himself, the person to whom both sides in the conflict offered the commanding generalship. Lee had a universally recognized superiority and the dignity that repels improper familiarity. He was above any hint of self-seeking and always conscious of the dictates of the highest duty and honor. It would be difficult to find anyone in our history who more closely resembled George Washington.

Like Washington, he became a slaveholder by marrying into it. And like Washington he thought the institution evil and like Washington freed all his slaves. Like Lincoln, he hoped that after emancipation the slaves would return to Africa, and he paid for several of his own slaves to emigrate to Liberia. There is also disputed evidence, which Guelzo accepts as true, that he ordered three runaway slaves be whipped. Perhaps so, as the threat or use of violence is intrinsic to master-slave relations.

When the war was over, Lee did whatever he could to conciliate his countrymen with his former foes. At Appomattox he discouraged a prolongation of the war, and quickly sought a pardon and swore an oath of allegiance to the United States. He wanted no monuments honoring himself and became for Americans the symbol of national reconciliation.

He also added something novel to the idea of America, that the losers in a war might be noble and honored for their courage, and in so doing he made us the better for it. As Theodore Roosevelt said, “he stood that hardest of all strains, the strain of bearing himself well through the gray evening of failure; and therefore out of what seemed failure he helped to build the wonderful and mighty triumph of our national life, in which all his countrymen, north and south, share.”

F. H. Buckley teaches at George Mason University’s Scalia Law School. His forthcoming book is Progressive Conservatism: How Republicans Will Become America’s Natural Governing Party (Encounter, July 2022)

Tags: Confederate, Slavery, YiddishLying, Constitution

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