Lee a traitor?

The court of opinion isn’t a court of law

As the Richmond statue of Robert E. Lee was airlifted from its pedestal on Monument Avenue last week and packed off into oblivion, commentary by satisfied observers repeatedly stressed that Lee was not only a slaveholder but a traitor. In fact, in some quarters—among historians not yet convinced that all statues of slaveholders have to come down, for example—the latter crime was more salient than the former, for it allowed a line to be drawn between Lee and, say, George Washington, who held more slaves than Lee but was not a traitor to his country.

And yet Lee was never charged with treason during his lifetime, and he certainly wasn’t convicted. Nor, for that matter, were any other Confederate leaders convicted of treason. Jefferson Davis was charged with treason but not brought to trial.

So why does the traitor label stick so stubbornly?

The quick answer is that Lee fought against his country, and anyone who does that is a traitor. This might be a common understanding of treason, but it’s not what the Constitution specifies. And there is good reason the Constitution is finicky on the subject.

In English history, as in the history of many monarchies, treason was a crime against the monarch. It was often loosely defined, with the charge leveled against anyone who crossed the king or queen. Henry VIII executed wives Anne Boleyn and Catherine Howard on trumped-up treason charges, along with Thomas Cromwell and many others. In the reign of Elizabeth I, Parliament approved a Treasons Act that made traitors of those who merely questioned Parliament’s decisions in determining the line of succession.

The framers of the Constitution wanted none of this in their American republic. “Treason against the United States shall consist only in levying war against them or in adhering to their enemies, giving them aid and comfort,” they declared. What they had in mind was what Benedict Arnold had done—put on the uniform of a foreign enemy and marched into battle with foreign troops.

The key element in this definition was war. And that’s the first reason Lee was never tried for treason. Abraham Lincoln refused to consider the conflict with the South a war, because, legally speaking, war signified conflict between two sovereign countries, and Lincoln wouldn’t recognize Confederate sovereignty. To Lincoln, the fight that started at Fort Sumter was a rebellion or an insurrection. To be sure, as the casualties mounted he lapsed into the common usage of “war” for what the struggle had become. But he never treated it as a war in the legal sense. He couldn’t, without conceding the one thing above all he was trying to prevent.

The second reason Lee wasn’t prosecuted was that the terms of his surrender of the Army of Northern Virginia to Grant at Appomattox protected him. “Officers and men will be allowed to return to their homes not to be disturbed by United States authority so long as they observe their parole and the laws in force where they may reside,” Grant promised. Some on the Northern side argued that Grant lacked the authority to waive civil prosecution of Lee. But Lincoln didn’t dispute the order in the short time he lived after the surrender, and following Lincoln’s death, Grant was the towering figure on Union side. Grant made clear he wouldn’t stand for having his promise broken; he would resign his army commission first. The Republicans couldn’t afford to alienate the great general, as they intended to run him for president in 1868. So Grant’s ultimatum stuck.

The third reason Lee wasn’t tried for treason was that if he was a traitor, so were the million other soldiers who served in the Confederate army. And while many in the North, especially those who had lost sons, husbands and fathers in the fighting, wanted to blame someone for their losses, almost no one wanted to see mass executions.

The fourth reason was a conceptual misfit between the concept of treason and what happened between 1861 and 1865. When one or a few people turn against the government, conceivably that might be treason; but when five million people do it, another description is required. This is especially so when the five million have a plausible argument for their actions, under the Constitution. The Constitution itself is silent on whether states can leave the Union, and the Supreme Court had never ruled on the matter. Lincoln, following in the footsteps of Union stalwarts like Andrew Jackson, Henry Clay and Daniel Webster, argued that the states could not leave. But the Confederates, citing John Calhoun, the early Webster and others equally venerable, argued that they could.

The argument was settled in a de facto sense by the Union victory in the war. But enough doubt lingered over the issue legally that potential prosecutors of Lee had to wonder whether they could find a jury that would convict him. If Lee were tried and acquitted, the whole legal basis of the Union war effort would be called into question. For Lee’s foes, a safer strategy was to keep calling him a traitor without having to prove the charge.

They have been doing it ever since. Calling people names is not a criminal offense in America, and the inaccurate charge against Lee might be chalked up to the rough and tumble of politics. But it has had effects that ought to give the name-callers pause. For decades it allowed Lee’s defenders to dismiss all criticism of him as false, on the reasoning that if the top charge against him was wrong, the lesser charges must be too.

The fact that the charge was treason had particular effects. It normalized the most extreme form of political slander, as manifested recently by Donald Trump, who regularly accused his critics of being traitors. Some of them returned the favor by accusing him and his followers of treason in trying to overturn the results of the 2020 election.

Students of history should care about getting facts right about the past; everyone should care about getting them right in the present. It might feel good to brand Lee a traitor, but under American law he wasn’t. It might feel good for lefties and righties today to call each other traitors, but they’re not, and doing so makes our already-vexing problems that much harder to resolve.

So criticize Lee all you want for his slaveholding and other failings. And wish his statue good riddance. But leave the treason charge out of it. As the founders knew, once a country starts down that path, no good will follow.