soldier with rifle american civil war THE
SESQUICENTENNIAL
EDITION

 

 

General Lee's Treason

Lee at desk writingThey say he wrote the resignation letter sitting at a desk in a small room at Arlington House overlooking his wife's, Mary Custis,' rose garden. He had entered the United States Army through West Point at the age of eighteen in the summer of 1825, a Virginia white boy rich with ancestors─and now it was the spring of 1861 and he's leaving it at the age of fifty-four. But for the fact the white people of the Union were about to wage war with themselves, it would not have been a controversial event. A career spanning thirty-six years in any profession is long enough for most, and for a man like R.E. Lee it ought not surprise if he wished finally to sit at a table, on the Boulevard Saint‑Germain in Paris, and while away his remaining days. But R.E. Lee did not resign his commission as the colonel of the First United States Cavalry to go to Paris. He did it to lead the white people of Virginia in war with the United States of America, and thus his letter of resignation comes down to us as an act of treason, his reputation stamped by the popular historians with the stigma of a traitor. (See, e.g., Gettysburg History Professor Allen C. Guelzo's YouTube rant.)

The indictment hangs on the claim that R.E. Lee "levied" war against the United States. But the objective truth is that, as a plain matter of fact, of law and political science, R.E. Lee did not "levy" war against the United States─that is, in the sense the Constitution's framers meant the meaning of the word when they wrote it. With the exception of Washington and Hamilton, whose political foresight was deeper than most, the founding generation of Americans did not think of the "United States" as an it, but as a them. The proof of this is found at the starting point─in the parchment Declaration of  "the thirteen United States of America" published to the world on July 4, 1776.

Declaration of Independence

King George IIIThe purpose of the Declaration was to give notice to His Britannic Majesty, King George III, that the white people inhabiting his colonies in America considered their duty of allegiance to him and his government extinqished, on the ground that his governance of the colonies had become so destructive of their lives, liberty and happiness that they were entitled by the law of nature "to abolish it (as to them), and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness." The Declaration was signed by fifty-five white men, as representatives of "the United States of America." Two of the signers were Richard Henry Lee and Francis Lightfoot Lee, great grand uncles of R.E. Lee.

Francis Lightfoot LeeRichard Henry LeeFrancis Lightfoot Lee Richard Henry Lee

Seven years later, in 1783, King George III, by the Treaty of Paris, acknowledged the "said United States of America, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free, sovereign and Independent States." At the time the British king acknowledged this, the thirteen American "States" were then confederated together in what their written agreement of confederation called "a perpetual union," the fundamental laws of which the agreement expressly specified could not be changed without the unanimous consent of each State. Notwithstanding this, in 1787, the people of nine of the thirteen States agreed among themselves that the form of their States' confederation was inadequate for their needs, and, to override the express stipulation of unanimity and adopt for themselves a new form of government framed, under a constitution, as a Federal Republic, they invoked the political principle expressed in the Declaration of Independence─that the people possess the unalienable political right to change their allegiance to government when, in their judgment, it becomes dangerous to their safety and happiness.

What is important to understand, here, is that those who wrote the constitution that frames our present government did not think of the term─ the people─as meaning something monolithic; that is, something intractably indivisible. They meant the term in the sense of a people large enough in number and closely connected in society and tradition to constitute a force capable of maintaining their independence─a fact that can be established only by the trial of experience: a trial the framers themselves experienced in their fiery struggle for independence from King George III's government. That this is what they thought can be plainly understood by reading what they wrote.

James MadisonIn The Federalist Papers (No. 33), for example, James Madison, the recognized author of the Constitution, addressed this question of the meaning of "the people" indirectly. Madison put the question: "On what principle can the Confederation, which stands in the solemn form of a compact among the States, be superseded without the unanimous consent of the parties to it?" By "recurring to the absolute necessity of the case," Madison first answered; "to the great principle of self-preservation; to the transcendent law of nature, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed." Madison's first answer invokes a political right which overarches the compact itself and resides, not in the abstraction of a "State," but in the body of the people of that State. In its essence it is the unalienable right of revolution the Declaration of Independence expresses that can be exercised whenever the people determine its exercise is absolutely necessary to their safety and happiness.

Madison offers a second answer which invokes a principle that arises directly out of the political relationship of the parties: in the case of the Confederation, the States; in the case of the Federal Union, the people of the States. Characterizing the compact of the Confederation as one "between independent sovereigns" which can "pretend to no higher validity than that of a treaty between the parties," Madison invokes what he calls "an established doctrine on the subject of treaties that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach committed by either of the parties, absolves the others, and authorizes them, if they please, to pronounce the compact violated and void."

Madison is offering, in other words, two independent arguments to justify a portion of the States in a "perpetual union," as well as a portion of the people comprising a nation, disassociating themselves politically from the whole: first, by viewing the political agreement between them to be in the nature of a compact which one party can deem rescinded, if its terms are breached by another party; and, second, most important, no political agreement, however express and unambiguous its terms may be, can extinquish the unalienable right of the people to change their government when they find it dangerous to their safety and happiness. In the one case, if, in the view of some States, the conduct of other States constitute breaches of the Articles of Confederation─for example, failing to contribute to the maintenance of the Confederation's army─the breaches absolve the other States from honoring the stipulation of unanimity. In the second case, the focus turns from the States as parties, to the people of the States and from factual breaches of agreements to the danger a government they created poses to their safety and happiness.

Madison probably appropriated these political ideas from the 17th century writings of Emer de Vattel who, building on the work of others before him, proposed that where there is nothing in the change of government which is considered contrary to the act of civil association, a majority of votes is generally sufficient to effectuate the change; but, if the change of government is so fundamental that it changes the nature of civil association, then the portion of the people affected adversely by the change are justified in dissociating themselves from the majority and going their own way. As Vattel put it, "if the greater part of a free people, after the example of the Jews in the time of Samuel, are weary of liberty and resolved to submit to the authority of a monarch, those citizens who are more jealous of [their liberty]─though obliged to suffer the majority to do as they please─are under no obligation at all to submit to the new government: they may quit a society which seems to have dissolved itself in order to unite again under another form: they have the right to retire elsewhere and take with them all their effects." (Italics added.)

looking out windowBut, in the real world of men, when the people of a State exercise this natural right that Vattel expresses in the abstract, in the context of the Federal Union the framers designed, where does the individual citizen's duty of political allegiance lie? It is this question, certainly, that R.E. Lee had to answer for himself as he sat at the writing desk in the little room at Arlington, on April 20, 1861, looking out the window at his wife's rose garden. Only by answering this question, can any reasonable person in Lee's shoes be sure in himself that he is not committing treason in the sense the framers defined the word in the Constitution: for, by its plain language, the Constitution's prohibition operates only against those who, at the time the levying occurs, are, indisputably, citizens of the "United States."

Perhaps, in answering this question for himself, Lee might have started his train of reasoning, by reflecting on the fact that, in 1788, at the time the Constitution became operative as to her, Virginia was the largest, richest, and most populous State in the new Union, with a political history his family shared stretching back in time one hundred and sixty-eight years; that it was Virginians who were the prime thinkers who brought the Union of the Constitution into being, and that, in doing so, they held the view that what made you a citizen of the United States was the fact you were a citizen of a State in the Union, Madison expressing it, in one sentence in the Constitution: "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." (Article IV, Section 2.)

constitution art 4

Lee would have seen the simple proof of this in the proceeding on the part of those States which first adopted the constitution: it was the ratification of the Constitution by nine States, not thirteen, that, as to them, caused the Federal Union to spring into existence in place of the confederation, leaving Virginia, North Carolina, New York and Rhode Island to fend for themselves. This was a plain breach of that Article which stipulated that the union of the Confederation was "perpetual" and that no alteration in the articles could be made, "unless agreed to in congress and afterwards affirmed by the legislatures of every state."

Constitution Art 7

Yet, the seceding States─the nine whose ratification of the Constitution created the Federal Government─did not hesitate to supersede the government of the Confederation and establish a new form, relying upon that natural right articulated by Vattel, declared by Jefferson and adopted by Madison, to preserve and protect their own safety and happiness─the exercise of the "right" depending solely upon the people of a State whether it will continue a member of the Union. Indeed, among all the political scientists of Lee's time─William Rawles, St. John Tucker, John Randolph, Thomas Jefferson and James Madison─there was unanimity of opinion that, as Rawles put it, "To deny this right would be inconsistent with the principle on which all our political systems are founded, which is, that the people have in all cases, a right to determine how they will be governed." "This right," Rawles went on to say, "must be considered an ingredient in the original composition of the general government, which, though not expressed, was mutually understood, and the doctrine of [duty of allegiance] is so far qualified in respect to allegiance to the United States, [which] would necessarily cease on the dissolution of the society to which it was due." (A view of the Constitution of the United States of America (1829), pp. 296-297.)

Thinking the matter through with cold reason, then, a person in Lee's circumstances might reasonably believe that his duty of allegiance as a citizen of Virginia to the general government of the Union, depends solely upon whether the people of Virginia exercise their sovereign voice that she continue a member of the Union. The people of Virginia, Lee knew, had first exercised their voice on the question, on June 26, 1788, when through their delegates in convention assembled in their State they formally declared that the Constitution was binding upon them─the declaration expressly reserving what their history told them was their unalienable right to secede from the political relationship, if it became, in their judgment, dangerous to their safety and happiness. And, now it was April 20, 1861 and the people of Virginia, again through their delegates in convention assembled in their State, had─three days before─declared the political relationship between their State and the United States dissolved, and that the Constitution was therefore "no longer binding on any of the citizens of Virginia."

Writing Desk at Arlington HouseSitting at his desk at Arlington R.E. Lee must have pondered a long time in his mind, what he was to do in these circumstances. The April day was bright with sun, with a soft breeze touching his face through the open window. Looking out, his mind for a moment distracted, he saw John Parke, the gardener, pruning the canes of the roses and behind him, in the low branches of a tree, a flitting blaze of scarlet red caught Lee's eye and he heard the sweet sweet tic tic tic of a male Cardinal's brilliant song. Then the breeze abruptly fell away from the room and the flash of color vanished from his sight and Lee's mind fell back into the gloom.

The first practical embarrassment he faced, was the public impression he most certainly knew he would create, if, after tendering his resignation, he were to immediately assume a role in Virginia's military preparation for war with the United States: for the State Convention's declaration was not, by its express terms, operative, in itself, to cause even abstractly the dissolution of the political union between Virginia and the United States. Under its terms, the declaration of dissolution was to take effect retroactive to April 17th, upon a majority of the people voting to ratify it, the vote to be taken at the polls on May 24, 1861. Yet, already war had broken out: On April 13th, the State of South Carolina and her Gulf State allies, operating in confederation, had by military means forced the United States to surrender Fort Sumter; two days later, on April 15th, the Union's president, Abraham Lincoln, had called upon the States still in the Union, to lend 75,000 of their militia forces to the Federal Government to support a war of conquest against South Carolina; and, on April 19th, some of these troops, on their way to Washington, had been attacked by a mob while passing through Baltimore. In these circumstances, Lee knew, as any reasonable person would, that at any moment the Union president might order all military personnel, including those like him on authorized leave of absence, to immediately report for active duty. If resign he must, better the soldier do it before being called to active duty.

But why must he? That was the heaviest question. Let the general public think what it willed about Lee's resignation─it was all about abstractions. Taken in their context, as a matter of law and logic, his resignation came after, not before, the effective date of Virginia's secession from the Union, which rendered him as of April 17th, 1861 no longer a citizen of the United States, and this fact, as far as the framers of the Constitution were concerned, objectively extinquished his duty of allegiance to the Union's Federal Government. But why, considered coldly in the real world of men, must he take an action which will render his wife and children homeless, why take an action that will make them paupers?

The Federal Government's first act of war against Virginia, Lee could not help but foresee, would be to occupy Arlington House and the farm which his wife, Mary, had inherited four years before from her father, George Washington Parke Custis. Lee's three sons likewise had inherited from Mary's father thousands of acres of land located about the State, while the labor of the Africans he had held as slaves was committed by his will to pay each of Lee's four daughters, a legacy of $10,000. All of this family wealth, along with his army pension, would certainly be lost, if Lee went with Virginia against the Federal Government.
Lee's wifeHis wife, at forty-nine, was crippled by arthritis; her hands gnarled into claws, her feet swollen. She hobbled about with crutches. How was she to cope when Virginia was besieged? Lee's daughters, Annie, Agnes, Mildred and Mary, were students in colleges: where were they to go?  What were they to do? Of Lee's three sons, the youngest was in high school, the other two─like their father, graduates of West Point─were officers in the Army. What could they do, but follow their father in his decision? Then there was the dense knot of family relations between the branches of the Lees, descended through five generations from Richard Lee the Immigrant, and the interlocking social connections with the Randolphs, the Fitzhughs, the Carters, the Parkes; with the descendants of Jefferson, Washington, and Custis. Were Lee to remain in the United States Army all of these relations would be severed and abandoned.

Lee must have gazed a long time out the window at the rose garden with his chin in his hand, struggling in his mind with the darkness of these thoughts; as he sifted them, he would have remembered his meeting the day before with Francis Blair in Washington who had offered him an illusion. Blair had made the incredible claim that he was authorized by Lincoln to offer Lee command of the assembling Union Army. If the claim were true, it would seem the Lee family's easy salvation, but it was ridiculous on its face─the idea that Lincoln would seriously think appointing R.E. Lee the army's commander would be acceptable to his cabinet, the Congress, or the governors of the loyal States: a Virginian─a patriarch of one of Virginia's first families, connected by blood to Washington and Jefferson, whose ancestors were signers of the Declaration of Independence and the Constitution, to lead the Union's army of invasion against Virginia, wield the army as he might a mace to smash Virginia's resistance to the Union by force of arms? Who seriously would think of Lee doing such a thing?

Who seriously can believe Lincoln would offer Lee such a thing, when he was  being daily pressed by Simon Cameron, his Secretary of War, to give the position to Robert Patterson, the commander of the Pennsylvania Militia and since the war with Mexico a major-general of Volunteers; pressed, too, by Salmond Chase, his Secretary of the Treasury, to give it to Erwin McDowell, a regular army officer who was organizing the volunteer regiments into brigades as they arrived in Washington; pressed also by Ohio Governor Dennison to make George McClellan, then organizing Ohio's volunteers in regiments, the Army's commander; and by Illinois Governor Yates, who was pushing John Pope forward; and in the Congress the Republican sentiment was heavy in favor of John C. Frḗmont, the Party's presidential candidate in 1856.

No, there is no objectively reasonable probability that Blair's claim was true. The best Lee could have expected to happen, if he were to take sides with the Union against Virginia, was to be posted to an Indian Reservation in Montana. But the family's prosperity would be preserved, his wife would remain in her home at Arlington, his daughters put in Northern colleges, his sons would keep their commissions in the Army and their rights of property, and all would be well for R.E. Lee and his place in American History.

By the time R.E. Lee put pen to paper that third Saturday of April, 1861, the sun had fallen low in the sky, a damp coldness had settled over the rose garden, and John Parke was gone to supper. Lee addressed the resignation letter to Simon Cameron, writing simply that he had the honor to tender the resignation of his commission as colonel of the First United States Cavalry. This letter he enclosed in an envelope addressed to Major-General Winfield Scott, the Commanding General of the United States Army, to whom he wrote warmly—asking Scott to recommend to Cameron that the Government accept the resignation, Lee made it clear he meant to stand with Virginia against the Federal Government's impending invasion of her territory.

Lee letter to Cameron

General Scott received Lee's letter in his office, on Monday morning, April 22, 1861, as Lee was boarding a train at Alexandria for Richmond. Scott had been expecting it. The two soldiers had talked privately in Scott's office for several hours the Friday last, the conversation ending with Scott understanding Lee's resignation would be forthcoming. Scott was born a Virginian, but he had long since abandoned his connections with the State: his wife, a Mayo, had left him years before to party with her crowd in Paris, and he had made his home alone in New York. Now he was at the bitter end of a fifty year Army career; an old man, sick and so fat he could hardly walk. But he was the lion who led the American army of 10,000 four hundred miles into the interior of Mexico and forced its government to surrender 500,000 square miles of its territory to the United States, and Lee had been, he said, his eyes.

General Scott held Lee's letter in his hand for several minutes, remembering; then he called his secretary, Eramus Keyes, to tell the Adjutant General, Lorenzo Thomas, to come in and when Thomas appeared Scott handed him Lee's resignation letter. The Army's Quartermaster General, Brigadier-General Joseph E. Johnston, was with Thomas when he came in. Johnston had shown Thomas his own resignation letter a few minutes earlier and the two men were about to walk it through the several departments, to clear Johnston's accounts, and then take it to Cameron for his approval.

Informed of this, Scott sat hunched in his chair, his chin on his chest and stared into space for a long moment, saying nothing. He felt faintly an excitement, then more strongly a regret, the closing shut of a door, and he handed Lee's letter addressed to Cameron to Thomas and told him to take it along. Thomas nodded and turned aside as Johnston and Scott exchanged a few words. Then, as the two men passed out of Scott's chambers, Thomas handed Lee's resignation letter to his assistant, E.D. Townsend, telling him to send it to the departments through the office mail, and he and Johnston went together, from one department office to another, until Johnston's accounts were marked "clear," and then they went into Cameron's office where the Secretary of War accepted Johnston's resignation.

Three days later, Lee's letter of resignation came back to Thomas from its slow journey through the departments, marked "accounts clear," and he finally carried it to Cameron who wrote across its face─accepted ─and Lee's final legal connection with the Union's Federal Government was severed. But, in those three days, with his commission in the United States Army still in legal effect, R.E. Lee had accepted the commission from the Virginia State Government as commanding general of its militia, and he had pitched in immediately, to organize the Virginian volunteers pouring into Richmond, outfitting them as best he could for the field. He was, and is, criticized for this by the Guelzos; but, as with the question of his duty of allegiance as a citizen, the answer to the question of his correctness, in accepting Virginia's militia commission before his army commission was accepted, hangs on the construction of abstractions.

At the core of the framers' formulation of the Union lies the indisputable fact that they recognized the constitutional right of the people of Virginia to adopt for themselves a republican form of government and expressly enjoined the Federal Government they were creating, from interfering with it, stipulating, not only that the constitutional duty of the Federal Government was to use its power to "protect" Virginia "against invasion" but also that, if threatened by invasion Virginia had the constitutional right to defend herself, and this, and only this, is what R.E. Lee was commissioned by the people of Virginia to do. (See, U.S. Constitution, Art I, Sec. 10 & Art IV, Sec. 4.)

POSTSCRIPT

Of the regiments Lee had organized for this purpose, four were on the march from Richmond, for the Tygart River Valley and Rich Mountain, when 20,000 thousand fledging soldiers from Ohio and Indiana came pouring into western Virginia on May 25, 1861, the day after the people of Virginia, by a supermajority, voted at the polls to ratify the State's secession from the Union.

image of Virginia

The Union Invasion of Virginia: May 23, 1861-July 23, 1861

Upon arriving at Richmond on April 22, 1861, R.E. Lee was appointed Commanding General of Virginia's militia and he set immediately to work, to organize the militia units coming into Richmond from the Virginia counties into regiments, outfitting the men with weapons and supplies, drilling them, and then—one by one—sending them to the several points on the borders of Virginia's territory which were being threatened with invasion by the Union.

Robert S. GarnettIn the course of this work, on June 15, 1861, General Lee assigned Robert S. Garnett, a West Point Graduate of the class of 1852 who had resigned his commission in the U.S. Army in April 1861, to the task of organizing the regiments assembling in Western Virginia, to meet the force of Ohio and Indiana infantry brigades that were then penetrating the State in the direction of the Tygart River Valley. Finding his force of five thousand men grossly outnumbered by the twenty thousand men McClellan had organized in Ohio and was moving into the State from the direction of Parkersburg and Wheeling, Garnett wrote General Lee a letter which is heavy evidence of the hard military fact that the balance of power between Virginia and the Union was plainly in the latter's favor.

"McClellan is at Grafton. Morris in command in Phillipe. If numbers are accurate they have about 17,000 men. Notwithstanding this, I don't think the enemy will attack us, for the simple reason that he has as much of our territory as he must want.The enemy's ability to throw men from other states in my front and the numbers they have available for the purpose, compared to the slow process of which we are subjected, will always enable them to exceed our numbers. It then becomes a question whether our presence here, occupying a superior force, is a sufficient object to warrant our maintaining our available force in this region. Now it is not for me to say whether it is justified by this very negative result that we stay here."

Some five days later Garnett was killed at a ford of the Cheat River, attempting to escape being enveloped by McClellan's forces at Rich Mountain. General Lee's letter in reply to Garnett's arrived after Garnett's death.

"I do not think it probable that the enemy will confine himself to that portion of our country which he now holds. But if he can drive you back he will endeavor to penetrate as far as Staunton. Your object will be to prevent him; if possible, to restrict his limits within the narrowest range, which, though outnumbered, it is hoped, by skill and boldness, you will accomplish."

For four years, from beginning to end, General Lee remained in Virginia, commanding the military forces available to him in defense of his native state; always outmanned and outgunned in the theater-wide strategic situation, he held the enemy at bay in the field by skill and boldness—down to the day, in June 1864, he was finally forced, by the superiority in numbers of the Union's force, to go inside the fortifications at Petersburg.

 

Joe Ryan