“Did Robert E. Lee Commit Treason?”

This is a wonderful talk by Allen Guelzo about about the attempt on the part of the federal government to prosecute Robert E. Lee for treason after the war. Guelzo is currently working on a biography of Lee, which I am very much looking forward to reading.

Yes, he does answer the question posed in the title of this talk, but I will leave it to you to watch the video for the answer.

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63 comments… add one
  • Joe Ryan May 9, 2018 @ 7:44

    Mr. Dick thinks it’s a myth that Lincoln started the Civil War, asking that people use facts to make a factually supported statement which props up an historically accurate belief. For such a statement, see The Sunken Fact in the Record: Lincoln Instigated the War http://joeryancivilwar.com/Lincoln-Instigated-War/The-Buried-Fact-Record.html

    • Jimmy Dick May 9, 2018 @ 17:30

      There’s nothing in there that shows Lincoln ordering a start of the war. It is the usual lousy attempt to make it look like Lincoln started the war. This is the usual lost cause garbage that fails to stand up.

      Under the Constitution Lincoln had the authority to send the US military to attack those who were defying federal authority. That is crystal clear. Yet, Lincoln chose not to issue orders to start an armed conflict. Instead, he ordered that hungry men be fed. When southern insurrectionists attacked Ft. Sumter, they showed they were going to commit treason and attacked their own country.

      We teach what we teach in school because we use facts, not stretches of our imagination or an inept interpretation of the US Constitution. Unilateral secession was and still is unconstitutional. Attacking your own country is treason. Those are facts.

      • Bob Huddleston May 10, 2018 @ 9:13

        To your fine answer, I would only add it was the Confederates who chose to open fire.

        “In order to obtain this military advantage of dubious worth, the Confederacy voluntarily accepted the role of aggressor, preparing to open fire, if necessary, on the American flag, on a fortress charged with deep symbolic meaning, and on a soldier who had become a national hero. It would have been difficult to devise a strategy better calculated to arouse and unite the divided, irresolute North. The primary significance of the southern attack on Fort Sumter is not that it started the Civil War, but rather that it started the war in such a manner as to give the cause of the Union an eruptive force which it might not otherwise have been slow to acquire.”

        David M. Potter with Don E. Fehrenbacher, The Impending Crisis, p. 582.

  • Lyle P. Smith Apr 18, 2018 @ 20:50

    I enjoyed reading Guelzo’s article like others. Nevertheless, there is no such thing as “de facto” treason. Lee wasn’t a traitor. It was a Civil War, and in civil war, among the principal belligerents there aren’t any traitors. People are fighting for whatever it is they legitimately believe in. Who are the traitors in the Syrian Civil War or the Spanish Civil War? Good luck answering that.

    • Ratherdrive Apr 19, 2018 @ 10:26

      Perhaps this will clarify the treason concept
      “Article III
      Section. 3.
      Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort… ”

      Its quite specific, certainly de jure, it apples only to American citizens and covers violent insurrections and rebellions against a duly-elected Government.

      • Lyle P. Smith Apr 19, 2018 @ 11:30

        Again, there is no such thing as de facto treason. However, like Guelzo says, Lee did not commit de jure treason.

        • Ratherdrive Apr 19, 2018 @ 13:07

          There is no need to refer to an act as de facto treason, when de jure treason has obviously occurred.

          The “jure” in this case being the Constitution, a law, which defines treason as: “to levy war against the USA.”

          Lee levied war, therefore Lee is a traitor.

        • Jimmy Dick Apr 20, 2018 @ 18:51

          Documents written by justices of the US Supreme Court referred to the rebellion as treason and those who fought against the US as traitors. Lee and every individual who took up arms against the US was a traitor. There is no splitting of hairs here. They were pardoned for their offense.

          • Matthew Tenney Apr 23, 2018 @ 0:37

            I think that at the time of the firing on Ft. Sumter, the majority of the voting citizens in those seven Confederate states supported secession. But that’s immaterial.
            Lincoln was indeed a genius determined to prevent secession; determined not to back down. Lincoln’s inaugural address contains the line ” The power confided to me will be used to hold, occupy, and possess the property and places belonging to the Government and to collect the duties and imposts…”. That one line guaranteed war. What if the British had said in 1776, “There need be no war, all we ask is we keep our forts and other infrastructure so we can collect taxes from you”? Lincoln must have known that he needed a rally cry so that he could win the inevitable war.

            • Bob Huddleston Apr 23, 2018 @ 7:47

              There was nothing inevitable about a war in 1861. And no one expected it to be long and bloody: both sides assumed the other would not fight. Wasn’t it a South Carolinian who said he would personally drink all the blood spilled? A sentiment shared by many north and south.

              For Lincoln to do nothing about Sumter was to admit unilateral secession was legal and accomplished.

              Nothing required the Confederates to open fire: had they waited it is possible northerners would have agreed with their position. Had Lincoln ordered the First Shot to be fired by either or the Navy, there would have been a united front by the slave states ad a divided north. But by attacking the Rebels guaranteed they would face a united north.

              Tremont House Hotel
              Galveston, Texas
              April 19, 1861

              You may, after the sacrifice of countless millions of treasure, and hundreds of thousands of precious lives, as a bare possibility, win Southern independence, if God be not against you; but I doubt it.
              I tell you that, while I believe with you in the doctrine of States rights, the North is determined to preserve this Union. They are not fiery impulsive people as you are, for they live in cooler climates.
              But when they begin to move in a given direction, where great interests are involved, such as the present issues before the country, they move with steady momentum and perseverance of a mighty avalanche, and what I fear is they will overwhelm the South with ignoble defeat.
              Gov. Sam Houston

              • Ratherdrive Apr 23, 2018 @ 14:19

                Not to mention that Lincoln tried to open negotiations with the Governor of SC, since the troops surrounding Fort Sumter were all from SC.

                But the Governor refused, and insisted that Lincoln negotiate with the CSA instead. Which Lincoln could not even legally consider since the CSA had zero legal existence at the time, nor at any time.

                At which point, Beauregard opened fire on the Fort.

            • Jimmy Dick Apr 23, 2018 @ 9:19

              You mean where Lincoln chose to enforce the US Constitution against those who were defying its authority?

              Let’s see that paragraph in its entirety: “In doing this there needs to be no bloodshed or violence, and there shall be none unless it be forced upon the national authority. The power confided to me will be used to hold, occupy, and possess the property and places belonging to the Government and to collect the duties and imposts; but beyond what may be necessary for these objects, there will be no invasion, no using of force against or among the people anywhere. Where hostility to the United States in any interior locality shall be so great and universal as to prevent competent resident citizens from holding the Federal offices, there will be no attempt to force obnoxious strangers among the people for that object. While the strict legal right may exist in the Government to enforce the exercise of these offices, the attempt to do so would be so irritating and so nearly impracticable withal that I deem it better to forego for the time the uses of such offices.”

              You may notice Lincoln chose not to use force. Jefferson Davis on the other hand did choose force and therefore committed treason.

              More than half the people in the Lower South opposed secession. Of course most of them were slaves and had no political power. However, around a third of the white citizens of each state as a minimum did not want secession at all. Most of them chose not to support the Confederacy and had to be forced into doing so. Of that group, many men fled to the Union lines and enlisted in the US Army. They chose to defend their nation from the traitors.

              Every state in the Confederacy with the exception of South Carolina had at least one regiment of white troops in the US Army and all of them had regiments of black troops in the US Army.

              As for the British, look up the Staten Island Peace Conference. You can easily see why the terms were rejected. Since the situation in 1776 between the Americans and the British was completely different than the situation in 1860/61. Mainly, the US was not the aggressor nor was it acting in a tyrannical way towards those who chose secession.

              • Ratherdrive Apr 23, 2018 @ 14:23

                Excellent analysis, Jimmy; Isn’t it instructive how often the whole paragraph gets much closer to the whole story?

              • Matthew Tenney Apr 24, 2018 @ 2:03

                Of course Lincoln did choose to use force. It’s just with the minor caveat that he had to get the other side to fire the first shot.
                The referenced part of his inaugural address shows just some of Lincoln’s genius. In his address, Lincoln was able to set the rules and define aggression, not as attempts to gain military advantage. but rather as only in firing the first shot. Lincoln could thus gain military advantage without using guns, e.g. run unarmed supply ships to resupply the garrison. The only effective way for the south to counter involved firing the first shot. Checkmate. Under Lincoln’s rules, he could march hundreds of thousands of unarmed troops down the streets of Charleston (no force there) and any attempt to stop them would be an act of aggression thus resulting in arming those troops.
                The only reason why the first shot was so important was that it inflamed northern emotions thus making it much easier to get support for his war.
                This isn’t rocket science. That speech was a promise of war.

                • Jimmy Dick Apr 24, 2018 @ 9:04

                  They weren’t Lincoln’s rules. They were and still are the rules laid down by the Founders in the US Constitution. Secession was and still is unconstitutional. Taking up arms against the United States of America was and still is treason. Those who do so were and still are traitors.

                  I just love how you state Lincoln was a genius. That makes Davis and Lee look like morons.

                  • Matthew Tenney Apr 24, 2018 @ 23:39

                    I would not normally have called Lincoln a genius. I purposely put it in because I thought you would make some comment and I wanted to see what you would say.
                    What would you say about David Koresh? He took up arms against the US and no one called him a traitor. Same with many criminals who have shot at federal agents. Why aren’t they all traitors?

                    • Jimmy Dick Apr 25, 2018 @ 9:05

                      Did they take up arms against the US or agents of the US acting in ways the criminals disliked or just out of fear of imprisonment? Big differences. Lee and the confederates waged a war against the lawful government as they sought to remove and replace the lawful government in a given area by force of arms. Koresh and the criminals were not trying to do that.

                      Here’s something for you. Instead of trying to perpetuate the myth that Lincoln started the Civil War, why don’t you research why Jefferson Davis chose to order the attack on Ft. Sumter? “Because Lincoln tricked him into attacking Ft. Sumter,” is not the answer. That’s the answer given by people who don’t use facts and instead make a factually unsupported statement meant to prop up their historically incorrect beliefs.

  • Bob Huddleston Apr 6, 2018 @ 18:19

    Matthew Tenney, Because there was no trial, no one committed a crime? Therefore, Wilkes Booth did not shoot Lincoln.
    Note, also, that if there is a trial, and the jury rules in favor of the accused, the latter is not found “innocent’ but rather “not guilty.” A huge difference. Remember also the jury may be wrong.
    The obligation of the historian is to examine the evidence and make a judgment about what happened.

    • Matthew Tenney Apr 7, 2018 @ 7:28

      There was a school shooting with a number of students killed and injured. Finally the shooter was killed by the police. No question he did it. But there was no crime. The shooter was Charles Whitman and he had a brain tumor which (most likely) forced him against his conscience to kill. Whitman killed those students and we can leave it at that. I think the fewer judgments made by historians, the better.

      • Ratherdrive@gmail.com Apr 23, 2018 @ 23:08

        There was no trial, no conviction, no finding of guilt; but there certainly WAS a CRIME.

  • Matthew Tenney Apr 6, 2018 @ 2:06

    Three key elements are necessary for an offense to constitute treason: an obligation of allegiance to the legal order, and intent and action to violate that obligation.
    Treason – Elements Of The Offense

    I think that in Lee’s view, he had no obligation or allegiance nor did he have an intent to overthrow the government. We can all speculate, but a trial is needed to prove treason.

    • Ratherdrive Apr 23, 2018 @ 14:35

      Lee “had no obligation or allegiance to the USA?”
      As a citizen of the USA, Lee certainly did have obligation and allegiance to the USA, just like all the other citizens.

      He also had a fairly large plantation requiring the wage-free labor of hundreds of slaves, unlike the tens of thousands of poor-whites in the South who were snookered into fighting to protect the wealthy lifestyle of plantation owners like Lee. Lee had NOT been snookered.

  • Bob Huddleston Apr 5, 2018 @ 18:18

    Guelzo accepts Lee’s argument that he ceased to be a United States officer when he sent in his resignation on April 20, 1861. NO, and Lee knew better.

    Some dates becomes important.

    Lieutenant Colonel Robert E. Lee, 2nd Cavalry, was promoted by seniority to colonel, 1st Cavalry, vice Col. Edwin Sumner, who was promoted to brigadier general to replace Daniel Twiggs, dismissed for surrendering US forces in Texas. Col. Lee accepted the promotion on March 30 to rank from March 16. The law required an officer to file an oath of allegiance when he accepted a promotion; Lee’s 201 File contains an oath for his 1855 promotion to lieutenant colonel, but there is no oath for the 1861 promotion to colonel. Did someone remove it when he became a Rebel or did Lee fail to take the oath?

    Dates become important:

    April 12 Confederates fire on Fort Sumter
    April 15 Lincoln calls for 75,000 volunteers
    April 17 Virginia convention votes to secede, subject to a vote on May 23
    April 18 Virginia forces seize US Customs House and post office in Richmond. Lee met with commanding general Winfield Scott and later with Francis Blair, Sr. who offered Lee command of the US forces.
    April 19 Mob attacks 6th Massachusetts in Baltimore; US armory at Harpers Ferry seized.
    April 20 Lee submits resignation from US Army
    April 20-21 Norfolk Navy yard abandoned and burned by US forces and seized by Virginia forces
    April 21 Virginia Convention instructs governor to offer Lee command of state forces; evening: Lee receives message offering him the position
    April 22 Lee reaches Richmond and accepts command of Virginia forces as major general
    April 25 US Secretary of War, having received notice from the various staff positions that Lee’s accounts were proper, accepts Lee’s resignation.
    April 27 The Adjutant General issues Special Order 119, announcing to the Army that Col. Lee had resigned.

    According to the records of the Paymaster General, Col. Lee was paid through April 25.

    Lee was also involved in actions which smack of a terrible conflict of interest, even of “treason.” If, as he and his defenders claimed, his allegiance was to Virginia and ceased when Virginia voted to secede, then why did he meet with both Scott and Blair? Logic says that, if they offered him command of the US field armies, then they also would have shared the tactical and strategic plans of the Lincoln administration. If Lee had any doubts about remaining in the US Army, an honorable man would have refused to meet with Scott and Blair.

    In addition, Lee was in contact with Virginia and Confederate representatives (for all of his protestations about wanting to become a simple farmer) at least as early as April 20. It strains credulity to believe that the Virginia Convention would have offered Lee command on April 21 if they had not known he was going to accept it. The Convention had earlier talked about offering the job to Winfield Scott, but they did not make an offer until they learned where he stood on secession. After losing Scott, the Convention then offered the post to Colonel Lee.

    Therefore when asked to meet with Scott and Blair, Lee should have refused, telling them that until he made up his mind about his future actions, he could not talk to them. But he did not: he went ahead and met with them.

    And there are the pesky army regulations: Article V, Paragraph 24 of the 1857 United States Army Regulations (later copied verbatim into the Confederate Regulations) provided that “No officer shall be considered out of the service on the tender of the resignation, until it shall have been duly accepted by the proper authority.” Paragraph 28 read “In time of war, or with an army in the field, resignations shall take effect within thirty days from the date of the order of acceptance.”

    Lee was still a US Army officer until April 25th at the earliest, and arguably, under paragraph 28, until May 28 and was therefore on the payrolls of both armies for at least three days. Nor did Lee have any excuse that he was finishing up existing work: Col. Lee had been on extended leave since returning from Texas. And, unlike the men in New Mexico and California, where news was delayed, Lee was at the seat of the government and well aware that Virginia forces had seized United States government property.

    BTW, Lee was succeeded as colonel of the First Cavalry (renamed on August 4 “Fourth Cavalry”) by Lt. Col. John Sedgwick.

  • Bob Huddleston Apr 5, 2018 @ 18:10

    I like to ask those claiming Lee did not commit treason because he was a citizen of Virginia, what does that make George Thomas or Winfield Scoot?

    And how about those who joined the Confederacy from states that did secede?

    • Ratherdrive Apr 23, 2018 @ 14:04

      What that makes the Virginians George Scott and Winfield Scott are genuine heroes of the USA, along with several thousand OTHER Virginians who fought as members of the U.S. Army in defense of the USA.

  • David Kent Apr 5, 2018 @ 9:21

    It would be hard to believe that people who waged war for four years against the U.S. government wouldn’t be guilty of treason, but John Brown was…..and he Was executed. Treasonous acts are treasonous acts. If I’m not mistaken, the thing that most worried Grant and the government, was a continuation of the war in a guerilla fashion. Hence the magnanimous terms to Lee. There’s no doubt in my mind though, he, (Lee), and anyone else who fought against the country were traitors.

    • Lyle P. Smith Apr 18, 2018 @ 20:53

      They weren’t guilty of treason because it was a civil war. They politically separated themselves from the Union and fought for whatever it was they believed. It’s hard to figure out who traitors are in civil wars, because it is a civil war. What a Union solider thought about Lee, frankly, doesn’t mean a damn thing.

      • Ratherdrive Apr 19, 2018 @ 10:57

        All “civil wars” involve citizens from the same Country, by definition. One side is treasonous, and the other is not. Always, in all Countries.

        Treason is a crime against one’s own Country. Not really complicated at all.

        And no, the CSA did NOT politically separate themselves legally from the Union. They made an attempt to unilaterally secede, but since they never bothered to ask all the other States in the Union to agree to it, those attempts were totally illegal, null-and-void from the very start. The CSA was thus never more than a wannabe, disastrous fairy tale, no matter how much they wished for it to be true.

        The Southern States did manage to temporarily give up their Statehood, but the land they were on never left the legal jurisdiction of the USA for even one single second. And all Southerners supporting the CSA remained American citizens before, during, and after the conflict, although in a condition of treason.

        • Lyle P. Smith Apr 19, 2018 @ 11:28

          I don’t agree with you. Who is a traitor in the Syrian civil war?

          • Ratherdrive Apr 19, 2018 @ 12:58

            You don’t agree with ME?? Do you not have access to a dictionary?

            None of what I wrote is a matter of “opinion.”

            The Government of Syria is the dictator Assad. Which means that ALL of the rebel groups in Syria are traitors.

            On the other hand, if it could be shown that Assad came to power by overthrowing an elected Government, then Assad would be the traitor.

  • HankC Apr 5, 2018 @ 6:13

    Recall that both the Whiskey and Shays’ rebellions resulted in capital convictions for treason, yet the Civil War did not (!).

    A few convictions, and perhaps resultant pardons, would have greatly influenced future events.

  • Ratherdrive Apr 4, 2018 @ 22:09

    The only legal way that any State may secede from the “Perpetual” Union of the USA is by first obtaining the unanimous consent of all of the other States, and none of the Southern States even bothered to ask. Unilateral secession is impossible by any means other than force.

    The attempted secessions were totally illegal, null-and-void from the start. The CSA was never a separate Country for a single second in time.

    The status of the CSA troops remained as American citizens, before during and after the war, although in rebellion.

    And since it is abundantly obvious that they did indeed “levy war against the USA,” and did so quite energetically, they EXACTLY met that official, Constitutional definition of treason in the USA. Traitors one and all, from the lowest ranks to the top.

    Neither a pardon nor an amnesty removes the crime; and in fact the act of accepting a pardon is an admission of guilt. Accept or refuse, the guilt remains, either way.

  • Paul Taylor Apr 4, 2018 @ 10:14

    I have not seen the video yet, however, the topic reminds me of two pertinent quotes:
    “In such wars those who win are loyal, the defeated ones the traitors.” -Calderon
    “Treason doth never prosper. Whats the reason? Why, if it prospers, none dare call it treason!” – John Harrington

    • London John Apr 21, 2018 @ 3:17

      Quite. I don’t think there is the slightest doubt that the confederate leaders committed treason. But if the victors in the English Civil War, the American Revolution and the Texas Revolution (among many examples) had lost, they would have been held to have committed treason. And if the Confederacy had won, its leaders would not have been considered traitors. So as long as the outcome of the war was in doubt, Lee and co both were, and were not, traitors.
      What is perhaps more surprising than the decision not to bring treason charges (which would have had the disadvantage of giving the accused the opportunity to argue the rightness of their cause at great length) is the failure to punish specific crimes committed by by confederate military and civil officers. SFAIK Henry Wirz the commandant of Andersonville was the only confederate war criminal to be punished. Confederate officials who executed loyal citizens of the US for treason against their states were not punished.
      Even if it was not politic to charge Lee with treason, I would have thought he and some of his officers could have been charged over the ANV’s kidnapping of African-Americans in Pennsylvania into slavery during the advance to Gettysburg. Lee wouldn’t have looked so noble then.

      • Ratherdrive Apr 21, 2018 @ 23:54

        All revolutions involve treason; there is no such thing as “loyal” treason.

        Once treason happens, it NEVER goes away; not with Conviction in Court; not with Amnesty’ not with Pardon; not with anything. Once a traitor, always a traitor., even after the legal debt is served.

        The key question with treason is in what direction it is aimed. Each and every one of our Founders and Continental troopers, regardless of the fact that they won the war, was a traitor against the King, but not against us, ourselves; well, except for that one guy. There was a treaty after the war to normalize relations between the two Countries, and to exempt our Founders from any prosecution forever, but none of that actually ERASED the treason. George Washington is a traitor against the King of England to this day.

        In contrast, each and every one of the CSA politicians and each and every member of the CSA Army and Navy were “levying war against the USA,” and therefore were total traitors.

        Good point you made about punishment for the ancillary crimes committed during the war. Lee was certainly guilty of kidnapping, as well as “enslaving”

        • Eatmorescrapple Oct 1, 2020 @ 18:40

          Yes George Washington levied war against England and the King to which he was a subject. Throughout the Revolutionary War the colonies never ceases to be part of the English colonial empire. Only at Yorktown and the Treaty of Paris was the issue decided. Just as at Appomattox. The analogy fits. English textbooks really ought to frame him as a traitor, and Benedict Arnold as a hero. Would be interesting to see whether any do.

  • Walter Los Apr 4, 2018 @ 8:29

    I watched about 40 minutes, which is all that I could stand. I’ve previously watched a presentation from Ford’s Theatre where Guelzo made his case that the South was not guilty of treason and basically said the legality of secession was murky.

    My impression of Guelzo is that he has no experience with the Law and really doesn’t know what he’s talking about. He made the case in this video that there is good evidence that the states are sovereign. Not so – In the very first case the Supreme Court decided, Chisholm v. Georgia, the Court ruled that when Georgia joined the Union, she gave up her sovereign status.

    In Martin v. Hunter’s Lessee (1816), the Supreme Court explicitly rejected the idea that the Constitution is a compact among the states

    Likewise, in McCulloch v. Maryland (1819), the Supreme Court stated that the federal Constitution proceeded directly from the people, and was not created by the states. The Court stated that the Constitution was binding on the states and could not be negated by the states.
    In this video, Guelzo argues that the treason language in the Constitution is a narrow one and comes from English law, whereupon he spouts out stuff about doing bad things to the King. He then cites the Aaron Burr treason trial as legal justification for not charging Robert E. with treason. Totally absurd, both suppositions. Burr was not convicted because there was no evidence that he acted, and Chief Justice Martial said under the Constitution, intent isn’t enough, you have to act; and there’s no question that Robert E. Lee and his brethren failed revolutionaries acted.
    Guelzo’s not a lawyer and obviously has had no exposure with lawyers. I suggest he stop trying to play Perry Mason, because no matter how eloquent and sure he sounds, the shoe don’t fit!

    My view of this is Grant erred in granting blanket paroles to Robert E. Lee and his officer cadre; and in subsequently protecting him. We all would have been better off had Lee been hung at Appomattox. He did take an oath, after all, and we should never forget that, even though Grant did.

    Another error was the Supreme Court ruling no more military trials. So you had men who committed high treason and military crimes; but could no longer be tried in a military court.

    • brian wolle Apr 4, 2018 @ 10:23

      excellant. i would buy your book, if you wrote one!

    • andersonh1 Apr 4, 2018 @ 10:36

      Walter Los, the path you suggest would have led to the war starting back up, which no one wanted. Certainly Grant and Lincoln did not want it. Can you imagine the reaction of the post-war South to an attempt to hang Robert E. Lee? Do you think those other Confederate leaders would have sat round passively waiting to be executed? No, the path taken, of attempted reconciliation, was the correct one to avoid any more bloodshed.

      • Mike Furlan Apr 4, 2018 @ 14:34

        The path taken resulted in a lot of blood. The largest terrorist campaign in US history in fact. One that continued into the 20th century. Sadly ironic that Martin Luther King Jr. was killed 50 year ago today.

    • Ratherdrive Apr 4, 2018 @ 22:21

      Very well said, Walter.

    • Eric A. Jacobson Apr 5, 2018 @ 6:22

      “In Martin v. Hunter’s Lessee (1816), the Supreme Court explicitly rejected the idea that the Constitution is a compact among the states.”

      As an aside, this is one of the cases that I am positive led Lincoln to (from a legal perspective) assert that he could issue the Emancipation Proclamation. Essentially, the States had never seceded, but only a portion of the population had rebelled. Therefore, without nullifying state laws which allowed slavery, he could legally, during a time of war, confiscate the property of those who were rebelling against the Federal government.

      • Ratherdrive Apr 5, 2018 @ 19:22

        I don’t know if “confiscate” is the right word to choose, since the Government did not assume ownership of the “property” in question, but otherwise your conclusion is quite accurate.

    • Bonnie Mangan Apr 5, 2018 @ 17:24

      Absolutely right Lee and others committed treason, especially so for those who had taken an oath as military officers to protect and defend the US. But Lincoln and Grant were right to be magnanimous. Paraphrasing President Ford: our long national nightmare was over

    • Joe Ryan Apr 18, 2018 @ 11:01

      Your evaluation of Dr. Guelzo’s credibility is on the mark. His is a superficial argument without substantial foundation in either law or fact. But the kids, whose attention span is two minutes, love him for his performance. For an objective analysis of “treason” in the circumstances of Lee’s case, see the text of comments with the video, Did Lee Commit Treason https://www.youtube.com/watch?v=MixUmHxmK_k

      • Ratherdrive Apr 19, 2018 @ 10:30

        Lee “levied war against the USA” in a very energetic fashion, which met the definition of “traitor” precisely.

  • Diane Hyra Apr 4, 2018 @ 6:21

    Sorry, just thought of something else. I thought Lee put on his best uniform for the meeting at the McLean home because he thought he might be Grant’s prisoner?

    • Boyd Harris Apr 4, 2018 @ 10:11

      Hi Diane,

      I worked for three summers at Appomattox CH and you are correct in what you remembered. Grant was pretty strung out along his supply lines, but Sheridan did capture Lee’s baggage train and artillery train on April 8. By the morning of April 9, Grant had Lee surrounded on three sides which Lee knew because he ordered Gordon to attack on the morning of April 9. The failure of that attack led to Lee finally agreeing to meet with Grant, which occurred that afternoon in the McLean House. As to the “best uniform” story, there are a few explanations. Your response about being made a prisoner is pretty good. Another one I saw made was that Lee lost most of his clothes when the baggage train was captured on April 8. So he only had two uniforms, the one he had been wearing and that new one. Its a small thing, but I tend to believe the first reason.

      Great video. I enjoy the detail that Guelzo brings to the treason question and the grace he shows to audience members who want to rehash arguments that were solved by the Civil War nearly 150 years ago. I’m not nearly that patient. When I was at Appomattox CH, I used to talk about the unique way our Civil War ended. Not with trials and executions, but with an attempt at peaceful reconciliation. It was not an easiest way to end the war and it could have been simpler, in some way, to just shoot everyone. But that would have made reconciliation more difficult and in my opinion that was the real genius of Grant and Lincoln: their ability to show empathy and to offer a chance for reconciliation.

      • Diane Hyra Apr 4, 2018 @ 12:54

        Thank you, Boyd.

      • Josh Apr 5, 2018 @ 7:51

        Just because a person isn’t shot or jailed for treason doesn’t mean they didn’t commit it. Not being charged and convicted of a crime is not the same thing as being innocent of said crime.

        • Ratherdrive Apr 5, 2018 @ 19:25

          Quite true, Josh.

        • Matthew Tenney Apr 6, 2018 @ 1:54

          In the eyes of the law, you’re innocent until proved guilty. I like it that way.

          • Ratherdrive Apr 19, 2018 @ 10:34

            All of the officers of the CSA were pardoned. Acceptance of a pardon carries with it a legal admission of guilt. Which of course constitutes proof.

            • Matthew Tenney Apr 19, 2018 @ 15:42

              In order to have any legal standing whatsoever, the pardon must be introduced into the trial proceedings. “A pardoned person must introduce the pardon into court proceedings, otherwise the pardon must be disregarded by the court.” (Burdick vs United States). That is the only method by which the Court can determine that the pardon was accepted.

              • ratherdrive Apr 19, 2018 @ 19:33

                True, a pardon may be demonstrably rejected by the recipient. And doing so completely exposes him to prosecution and punishment for the crime in question.

                Which is why Burdick found himself in the slammer after he rejected his pardon. None of the CSA officers found that to be an optimal outcome. Certainly Lee did not think so; when his potential pardon was held up “in the system,” he applied for one himself.

                • Matthew Tenney Apr 20, 2018 @ 3:33

                  Regardless of whether or not anyone found prosecution to be an optimal outcome. Regardless of Lee’s application for a pardon. As I read it, unless the pardon is introduced into court proceedings, the pardon does not exist as far as the legal system is concerned and there is no admission of guilt and therefore no proof of guilt.

                  • Ratherdrive Apr 20, 2018 @ 10:43

                    Good point. A pardon may actually exist as soon as it is issued, but it has no legal utility until and unless it is demonstrably accepted.

                    And legal guilt is either admitted by a defendant or determined by a Court, exclusively.

                    But moral guilt for the same action is the reason a defendant finds himself in Court in the first place.

                    With respect to the officers AND troops of the CSA, the evidence of the moral guilt of treason is so abundant that it constitutes its own mountain range. Traitors they were, of the “un-indicted co-conspirator” variety.

                    • Matthew Tenney Apr 22, 2018 @ 1:57

                      In my view, by far the greatest moral guilt is upon Lincoln for pushing secession into a war. Paragraph 3 of the 1860 Republican platform tells us clearly why they opposed secession and it had nothing to do with slavery. It was about wealth and prestige and honor, hardly moral reasons for starting a war that killed so many. Lincoln tricked the Confederates into firing on Ft. Sumter just as Lyndon Johnson tricked the North Vietnamese into firing on the USS Maddox thus effectively signing the death warrant for people who were my friends. In my opinion, it was Lincoln’s prideful nature of never backing down from a fight that caused him to usurp the powers of Congress. And according to Justice Marshall, usurping the powers of Congress is treason to the Constitution. The south wanted to leave and the north, inflamed by wounded pride at Ft. Sumter, wanted revenge.

                    • Jimmy Dick Apr 22, 2018 @ 7:59

                      So Lincoln was an evil arch-genius who took advantage of the ignorance of Jefferson Davis and the rest of the Confederates?

                      If you would study the actual history, Davis had a choice. He could have decided not to order the attack and instead let a peaceful resolution to the situation play out. He chose not to do that because too many people who felt like secession was wrong (remember, more than half the people in the South rejected secession) were asking questions that could not be answered by the Confederates. Also, no European state was recognizing the Confederacy, and that was what they absolutely had counted upon for survival and legitimacy.

                      No, Jefferson Davis ordered that attack because if he had not done so, the secessionists were going to be left holding the bag as the people of the South began to desire staying in the United States. He started the war to maintain his power along with the power of the rest of his elite class of slave owners. He did not get tricked into starting the way by Lincoln. He made the deliberate choice to start that war and that was treason.

  • Diane Hyra Apr 4, 2018 @ 6:17

    Fascinating! I am pleased with his eventual answer but there were two points in the question and answer session that I’d never heard before. The distinction between secession and revolution was enlightening but the fact that Grant was so stretched that he couldn’t have pursued Lee any longer if Lee hadn’t surrendered! Wow! But remembering a talk I heard from a NPS Ranger at Appomattox several years ago, wasn’t Sheridan in front of Lee? Didn’t Lee really have nowhere to go? So Grant wouldn’t have had to “pursue” him?

    Great stuff! Thanks so much for sharing.

    • Josh Apr 5, 2018 @ 7:47

      “Grant was so stretched that he couldn’t have pursued Lee any longer if Lee hadn’t surrendered!”

      I would assume he means that if Grant hadn’t successfully surrounded Lee then Grant wouldn’t have been able to continue pursuit much longer.

      • Ratherdrive Apr 5, 2018 @ 19:29

        Lee was the one who was almost entirely out of resources and no access to a railroad for replenishment. Not Grant; most assuredly, not Grant.

    • Ratherdrive Apr 5, 2018 @ 19:32

      Diane, you are correct about the position of Sheridan’s forces.
      Lee was pinned, and out of resources.

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