The Problem of Robert E. Lee and Why He Was Not Prosecuted for Treason.

He was accused of treason. Only the hunger for reconciliation saved him.

Seven weeks after Robert E. Lee’s surrender at Appomattox Court House, Judge John C. Underwood demanded justice, while providing instructions to a federal grand jury in Norfolk, Virginia. He defined treason as “wholesale murder” that “embraces in its sweep all the crimes of the Decalogue.” This horrific act, Underwood declared, had murdered tens of thousands of young Americans during the recent war, “by the slaughter on the battlefields, and by starvation in the most loathsome dungeons.” He was outraged that the men most responsible for the rebellion – “with hands dripping with the blood of our slaughtered innocents and martyred President” – were yet still at large.

Underwood urged the grand jurors to send a message to their countrymen that future rebellions would not be tolerated, stating, “It is for you to teach them that those who sow the wind must reap the whirlwind; that clemency and mercy to them would be cruelty and murder to the innocent and unborn.” He then concluded his remarks by advising that Robert E. Lee would not be protected from prosecution by his agreement with Ulysses S. Grant at Appomattox on April 9, 1865.

On June 7, 1865, Underwood’s grand jury indicted Robert E. Lee for treason, charging him with “wickedly, maliciously, and traitorously” carrying on war against the Constitution and the “peace and dignity” of the United States of America. Lee faced death by hanging, if found guilty of the charges.

Americans today might not know about Lee’s indictment by the Norfolk grand jury. The actual indictment went missing for 72 years and many scholars remain unaware that it has been found. All told, 39 Confederate leaders would be indicted for treason by Underwood’s court.

Our amnesia about this episode becomes evident periodically. Shortly after a rally held by white nationalists in Charlottesville, Virginia, White House Chief of Staff John Kelly said in an interview that Robert E. Lee “gave up his country to fight for his state, which 150 years ago was more important than country. It was always loyalty to state first back in those days. Now it’s different today.”

It wasn’t different back then. Confederate leaders, who placed their allegiance to their states above the federal authority, were charged with treason by the United States government. In the antiquated language of his indictment, Lee was accused of “not having the fear of God before his eyes, nor weighing the duty of his said allegiance, but being moved and seduced by the instigation of the devil … to subvert, and to stir, move and incite insurrection, rebellion and war against the said United States of America.” Like his fellow citizens, Kelly appears unaware of this history. Somehow, we seem to have erased this event from our collective memory.

Despite President Andrew Johnson’s commitment to prosecuting the indicted rebels, the charges were eventually dropped in February 1869, after a series of false starts and procedural delays. In the end, the very understandable desire for reconciliation among both northerners and southerners after the war was deemed more important than the obligation to punish those who tried to destroy the Republic. The pervasive idea that the Civil War was just a misunderstanding between “men and women of good faith on both sides,” as General Kelly said in the interview, is a direct result of the decision to drop the treason charges against the Confederate leadership.

Even though Lee may have been an excellent soldier and a fine gentleman, he also violated the U.S. Constitution in order to defend a society built upon chattel slavery. This mustn’t be forgotten. In Trump’s America, we are witnessing the reemergence of white nationalism along with almost daily challenges to constitutional norms. In light of these alarming trends, Americans will benefit from revisiting the legal case against Robert E. Lee after the Civil War.

Initially, Lee had reason to be hopeful. General Grant intended that the Confederate soldiers would not face treason trials and severe punishments. His agreement with Lee at Appomattox concluded, “each officer and man will be allowed to return to his home, not to be disturbed by the United States authority so long as they observe their paroles and the laws in force where they may reside.” That last line has been described by the historian Bruce Catton as one of the greatest sentences in American history.

Grant maintained that Lee “would not have surrendered his army, and given up all their arms, if he had supposed that after the surrender he was going to be tried for treason and hanged.” There was another consideration as well. After having waged a brutal total war against the South, Grant wrote his wife in late April 1865 that he was “anxious to see peace restored, so that further devastation need not take place in the country.”He felt the suffering of the South in the future would “be beyond conception” and observed, “People who talk of further retaliation and punishment, except of the political leaders, either do not conceive of the suffering endured already or they are heartless and unfeeling and wish to stay at home out of danger while the punishment is being inflicted.”

Andrew Johnson, who became president after the death of Lincoln just six days after Appomattox, saw things much differently. A southerner from Tennessee, who remained loyal to the Union, Johnson was well-known for his uncompromising stance on treason. After the fall of Richmond in early April 1865, he had declared, “treason is the highest crime known in the catalogue of crimes” and “treason must be made odious and traitors must be punished.” For Johnson, death would be “too easy a punishment” for the traitors. In one of his greatest speeches, delivered in the Senate in December 1860, he said South Carolina had put itself “in an attitude of levying war against the United States.” He added, “it is treason, nothing but treason.” A few months later, Johnson declared on the Senate floor that if he were president and was faced with traitors, he would “have them arrested and if convicted, within the meaning and scope of the Constitution, by Eternal God,” he’d have them executed.

Johnson’s desire for retribution represented a stark contrast with the seemingly lenient, benevolent attitude of Abraham Lincoln. On the morning of April 10, the day after the surrender of Robert E. Lee at Appomattox Court House, Johnson had hurried over to the White House so he could protest directly with the president against the indulgent terms given to Lee by Grant. Johnson believed Grant should have held Lee in prison until the administration figured out what to do with him. During the late afternoon on April 14, just hours before the attack at Ford’s Theatre, Johnson had met privately with the president, telling Lincoln he was going too easy on the rebels. Johnson noted that he’d be much, much tougher on traitors if he were president.

Upon becoming president, Johnson received widespread support for his plan to prosecute the leading rebels. Grieving northerners wrote Johnson letters saying that the assassination of Lincoln was somehow a natural result of treason against the Union. One citizen described John Wilkes Booth as having graduated from the “university of treason” that had Jefferson Davis and Robert E. Lee as teachers. Across the North, there was an outflow of anger over the assassination and Andrew Johnson heard the growing drumbeat for bringing Lee, Davis, and the other Confederate leaders to justice.

Before Johnson could prosecute Lee, he needed to make sure that Grant’s agreement with Lee didn’t prohibit civil charges from being filed after the war was concluded. Johnson sought advice on this subject from General Benjamin Butler, a prominent attorney from Massachusetts who had also served in the field for much of the war. After surveying the historical record, Butler argued that a parole was merely a military arrangement that allowed a prisoner “the privilege of partial liberty, instead of close confinement.” It did not in any way lessen the possibility of being tried for crimes resulting from wartime activities.

Having reviewed Lee’s agreement with Grant, Butler asserted: “Their surrender was a purely military convention and referred to military terms only. It could not and did not alter in any way or in any degree the civil rights or criminal liabilities of the captives either in persons or property as a treaty of peace might have done.” Butler then concluded “that there is no objection arising out of their surrender as prisoners of war to the trial of Lee and his officers for any offenses against municipal laws.” This finding paved the way for the Johnson administration’s decision to pursue charges against Lee in Judge Underwood’s courtroom in June 1865.

Grant fiercely objected to the decision to indict Lee and the other Confederate leaders. In a letter on Lee’s behalf to Secretary of War Edwin Stanton, Grant wrote:

In my opinion the officers and men paroled at Appomattox C.H. and since upon the same terms given to Lee, can not be tried for treason so long as they observe the terms of their parole…. I will state further that the terms granted by me met with the hearty approval of the President at the time, and of the country generally. The action of Judge Underwood in Norfolk has already had an injurious effect, and I would ask that he be ordered to quash all indictments found against paroled prisoners of war, and to desist from further prosecution of them.

Despite Grant’s sincerity, his beliefs about the paroles were almost certainly incorrect. It’s difficult to imagine that an agreement hammered out between two generals on a battlefield could protect thousands of men from treason charges or possible war crimes.

Unsurprisingly, Johnson differed with Grant and told him so. What happened between them remains a mystery. Between June 16 and June 20, 1865, Grant and Johnson met once or twice to discuss the indictment of Lee by the Norfolk grand jury. The two disagreed vehemently on how to handle Lee in the future. Johnson wanted to prosecute him, while Grant believed the paroles protected him from punishment for his wartime actions. Grant may have even threatened to resign his commission if Lee was arrested and prosecuted. Finally, on June 20, 1865, Attorney General James Speed wrote Norfolk District Attorney Lucius Chandler, regarding the recently indicted Confederate leaders: “I am instructed by the President to direct you not to have warrants of arrest taken out against them or any of them til further orders.”

Many writers have repeated Grant’s belief that this resulted in a “quashing” of the charges against Lee. This view is mistaken. In his letter to Chandler, Speed instructed him not to arrest them “til further orders.” Johnson and Speed were willing to concede that the paroles protected the Confederate officers as long as the war continued. The war wouldn’t officially end until the rebellion was finally put down in Texas in August 1866. Toward the end of 1865, Johnson and his cabinet decided to prosecute Jefferson Davis first instead. It made sense to begin treason trials with the former Confederate President, who was often referred to as an “arch traitor” by the northern press. Davis was being held at Fortress Monroe in Virginia and was mistakenly believed by many Americans to have been connected to the conspirators in the Lincoln assassination. If the government couldn’t win a case against Davis, then future treason trials against the rest of the Confederate leadership would be untenable, to say the least. It’s likely Lee would have been tried next, after a successful prosecution of Davis.

By early 1866, the Johnson administration had made several decisions that would have a major impact on possible cases against the former rebels. First, it had decided that treason trials must be held before a civil court rather than a military tribunal and any jury trials would be held where the crimes were committed. In the cases of Davis and Lee, the appropriate venue would be in the state of Virginia. Johnson’s cabinet also agreed that Chief Justice Salmon Chase must preside over treason trials, along with Judge John C. Underwood, in the Circuit Court serving Virginia in Richmond. Everyone believed the Chief Justice would provide legitimacy to any guilty verdicts that might be found. Plus, the abolitionist Judge Underwood was viewed as too partisan to handle the cases on his own.

The insistence that Chase preside over the Davis trial resulted in endless delays. The Chief Justice wouldn’t appear in the Circuit Court until the war officially declared over in August 1866. Once he was ready in March 1867, then it was the government’s prosecution team that needed more time. After being pushed until the spring of 1868, the trial was delayed again while Chase presided over the impeachment trial of Andrew Johnson. There seemed to be no end to the comedy of errors.

The postponements may have spared the Johnson administration a humiliating “not guilty” verdict in the Davis case. The decision to try treason cases in Virginia made it highly likely that one or more jurors would vote for acquittal. In 1866, Judge Underwood had told the Joint Committee on Reconstruction that the only way Davis or Lee could be convicted of treason would be with a “packed jury.” When questioned about whether he could pack a jury to convict Davis, Underwood answered, “I think it would be very difficult, but it could be done; I could pack a jury to convict him; I know very earnest, ardent Union men in Virginia.” Underwood eventually assembled the first mixed-race jury in Virginia history for the Davis trial, but the prosecution team was still wary. And Andrew Johnson’s racism made him extremely uncomfortable that a jury that included African Americans might decide such an important case.

Ultimately, it seemed more and more likely that the government might lose in the Davis case and Johnson, who became a lame duck in November 1868, decided to drop all of the charges against Davis, Lee, and the other 37 Confederate leaders in February 1869, just one month before the inauguration of the new president, Ulysses S. Grant. Despite Andrew Johnson’s best efforts, it’s undeniable he failed to make treason odious. There would be no convictions and punishments for the crime of treason committed during the Civil War. When Johnson left office, John Brown had been the only American in United States history executed for treason.

Johnson blamed Chase for the failure, citing the delays of 1865 and 1866. He also faulted Congress for impeaching him. If Johnson had been fair, he too, would have had to accept some of the blame. His administration’s decision to try treason cases where the crimes were actually committed assumed that impartial juries could be found in these places. This was wishful thinking. Only military commissions or northern juries were likely to convict Davis, Lee, and the other Confederate leaders of treason.

In the end, his administration offered amnesty to all participants in the rebellion, while insisting treason had in fact been committed by the Confederate leadership. Perhaps treason had not been made odious, yet it’s also true America has never had a widespread rebellion since. The 14th Amendment made it clear that citizens now owed their primary allegiance to the federal government, not the individual states.

Years after Lee’s death, John William Jones – a chaplain at Washington College – wrote, “this noble man died ‘a prisoner of war on parole’ – his application for ‘amnesty’ was never granted, or even noticed – and the commonest privileges of citizenship, which are accorded to the most ignorant negro were denied this king of men.” Jones is not quite right in his assessment. The true story of Lee’s punishment for his role in the war is far more nuanced than Jones indicated.

The toughest penalty against Lee was the government’s decision in January 1864 to acquire his family estate at Arlington due to unpaid taxes. This was a huge loss for Lee personally and his family would not be compensated for it during his lifetime. The Arlington estate, now the site of Arlington National Cemetery, remains federal property to this day.

Lee suffered yet another penalty by the government for his role in the war, as a result of the ratification of the 14th Amendment in July 1868. According to Section 3: “No person shall be a Senator or Representative in Congress or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States … shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

In addition to being prevented from holding public office, Lee was initially prohibited from voting in his beloved Virginia after the war. Lee’s voting rights, along with other former rebels, were restored in July 1869, however. At the time of his death, Lee would have been eligible to vote in Virginia.

On Christmas Day, 1868, Johnson provided a general amnesty and pardon to everyone who participated in the rebellion, including Lee. For political reasons, Johnson never intended to reply individually to Lee’s pardon application of 1865. Johnson had decided to not personally pardon either Lee or Jefferson Davis. The latter, a bitter foe of Johnson, would never ask for one.

When we step back and look at the U.S. government’s treatment of Lee, we see that he did suffer substantial economic and political penalties for his role in commanding the armies of the Confederate States of America. Most of them, but not all, had been removed by the time of his death. When you factor in the loss of Arlington, it’s fair to say that Lee paid dearly for his decision to side with the South. Northerners and southerners nevertheless tended to view Lee’s treatment differently. Many northerners felt Lee had been lucky to escape the hangman’s noose, and should have been somewhat more conciliatory toward the government as a result. The vast majority of southerners, on the other hand, believed their hero had been treated harshly by the authorities. It made it difficult for them to restore their allegiance to a government that would act in such a way.

Today, we no longer remember the seriousness of the treason charges that were made against Lee in 1865. By forgetting, it’s been easier to remember Robert E. Lee as an “honorable man,” as John Kelly recently described him. The renowned abolitionist Frederick Douglass warned future generations of Americans about the danger of forgetting this history in a speech titled “Address at the Graves of the Unknown Dead” on Decoration Day, May 30, 1871. Delivered at Arlington National Cemetery, the former location of Lee’s family estate, Douglass wondered, “I say, if this war is to be forgotten, I ask, in the name of all things sacred, what shall men remember?” He urged his audience to never forget that “victory to the rebellion meant death to the Republic.”