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Debating Robert E. Lee: Patriot or traitor? / June 25, 2020
The answer to the question of whether Robert E. Lee was a patriot or a traitor is actually fairly straightforward: his actions met the Constitution’s requirement for the definition and charge of treason. Lee took a loyalty oath to the United States and he willingly violated that oath. Virginian or not, Lee’s allegiance was first and foremost to the United States, not to his state or the Confederacy. It is time that we accept this and go on about the business of fairly evaluating the causes and consequences of the Civil War in the proper light. In the end, however, it is up to the individual to make up his or her own mind about Lee.

Upon entering West Point in 1825 as a Cadet, Robert E. Lee took an oath of allegiance: “I, Robert E. Lee …. Do promise upon honor that I will observe and obey the orders of the officers appointed over me… and the regulations that have been established for the government of the Military Academy.” By 1857, the Oath included, “do solemnly swear that I will bear true allegiance to the United States of America and that I will serve”.

When Lee graduated and was commissioned a Brevet Lieutenant in the United States Army in 1829, he took the Officer’s Oath: “I do solemnly swear that I will bear true allegiance to the United States of America, and that I will serve them honestly and faithfully against all their enemies or opposers whatsoever, and observe and obey the orders of the President of the United States and the officers over me according to the rules and articles for the Armies of the United States.”

In 1862, the Officers Oath added, “I will support and defend the Constitution of the United States against all enemies foreign and domestic… so help me God.”

Treason is one of only three crimes mentioned in the Constitution, (piracy, treason, and counterfeiting) but the only one defined. This is because, for the most part, the Founding Fathers had committed treason themselves against the British, and that they wanted to make clear such a serious charge constituted a specific, witnessed act against the government, and not merely speech criticizing the republic. Article III, Section 3: Treason against the United States shall consist only in levying War against them, or adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. In the Federalist Papers, Madison and Hamilton easily described the need for this clause without much debate.

I think we can safely say that there was the necessary number of witnesses available to Lee’s treason. In fact, Robert E. Lee was directly responsible for the deaths of more Americans in battle than any other person in history. Add to that the fact that Lee continued to pursue war two and a half years beyond the point that victory was clearly going to be the Union’s. After the South’s failure at Antietam, Maryland, in September, 1862, I believe the rebels’ military loss was inevitable. After that repelled offensive, President Lincoln issued the Preliminary Emancipation Proclamation. His official Executive Order of the Proclamation was issued on January 1, 1863.

That event changed the perceived war aims of the North from merely maintaining the Union, to freeing the slaves. This resulted in renewed support for the war in the North, and most importantly, final decisions from England and France to stay out and not supply the South with any more blockade runners. Lee mounted the second, and last, foray into the North and was forced back after Gettysburg in July 1863. The cause was lost. But, Lee continued on until finally surrendering at Appomattox in April 1865. What an incredible waste of life and resources beyond any reason or military advantage.

Defenders of Lee claim that the Virginian was an “honorable” man, no great defender of slavery, conflicted over his allegiance, but ultimately moved to act by his loyalty to his home state. There are many problems with this line of thinking. First is the allegiance issue. Lee, like everyone else, had no legal or Constitutional oath or contract that bound him to Virginia. It is a feeling, a learned behavior for one to feel loyal to a state. And that’s fine. I’m a Virginian and have lived my whole life in the South. But, despite my love for Virginia and the fact I am a legal resident of the state, I have no legally-binding loyalty to her. However, I am an American first and foremost and I would not show disloyalty to my country under any circumstances. The Constitution’s definition of treason is a federal crime; one cannot commit treason against his or her home state.

Lee first opposed secession saying it was “revolution” and “anarchy.” But he said, “How can I draw my sword upon Virginia, my native state?”

As for “honorable,” well, no. Breaking that solemn oath to the United States was in no way honorable. Lee received a quality four-year education at West Point at the expense of the American people. And what did they get in return? Granted, Lee gave 32 good years of service to the U.S. Army, including a stint in the War with Mexico under the command of Gen. Winfield Scott, another Virginian. His military record was superb. Then he left in 1861 to fight against the United States, allegedly to “defend” Virginia. There’s nothing honorable about a turncoat, especially considering the cause the South was fighting for.

Gen. Scott was the most senior officer in the U.S. Army in 1861, and though a Virginian, he stayed loyal to the Union. Scott famously tried to keep Lee on board as well but failed to convince his junior officer to do so. Scott took Lee’s decision hard and with great personal disappointment. Many contend that Lee was conflicted over his choice, and probably so. But Lee’s choice was his and his alone to make. However, the example of General Scott’s decision to remain loyal I think is incredibly significant. Just because Lee was a Virginian, doesn’t mean that he should feel compelled to turn his back on the United States. Winfield Scott didn’t.

The biggest, most consequential issue that had been pulling the country apart by sections since our founding, had now brought America to the brink of war. Most of the national political debate for the first half of the 19th century involved some aspect of slavery: importation of slaves, extension of slavery to new states and territories, balancing free and non-free states in the Senate, and the very contentious issue of fugitive slaves. Add to that the ideology that held that since the Constitution did not ban slavery or assign such a power to do so to Congress, then the existence of the South’s slave labor system fell to the states to determine. But once any slave was sold and carried across state lines, slavery became interstate trade and subject to Article I’s regulatory powers.

As for Lee and slavery, his record speaks for itself: strict slave owner, fought for the Confederacy, and opposed the Freedman’s Bureau during Reconstruction which helped former slaves’ adjustment in to free society. Lee came into slaveholding by inheritance when his wife’s father died and left the couple the Arlington House plantation and its approximately 200 enslaved workers. The property, which overlooks the Potomac River, is today Arlington National Cemetery, our largest and most sacred resting place for fallen warriors and patriots. The passing of George Washington Parke Custis in 1857 was a defining moment in Lee’s life, which placed him on the front line of the slavery dispute.

Several historical accounts describe Lee as a “cruel” slave master, placing recalcitrant workers in jailed solitary confinement and even ordering whippings as punishment. One thing that set Lee apart from previous masters of Arlington is that he broke up slave families. That was an unusually mean action that was not often done. Lee, like many but not all southerners, was conflicted about slavery, which he called “evil” on more than one occasion. But he held that because of the inherent inferiority of African Blacks, slavery was probably better for them than immediate emancipation. He never spoke out otherwise against slavery.

Historian Elizabeth Pryor on Lee: “His assessment of black inferiority, of the necessity of racial stratification, the primacy of slave law, and even a divine sanction for it all” was similar to other pro-slavery southerners, however his views were in no way enlightened. He even held that slavery’s existence was harder on whites than blacks because of its weight on the southern conscience.

Lee was born in 1807 and lived in early childhood at the family’s Stratford Plantation on the south banks of the Potomac River. His father, “Light Horse” Harry Lee fell on hard times and moved the family to Alexandria where Robert lived mostly on Oronoco Street in a townhouse still standing in Old Town. Wealthy planter and family friend William Fitzhugh rented the home to the Lees, and it is now known as Lee’s Boyhood Home. After his father died, the younger Lee was further schooled and spent time at Fitzhugh’s large Ravensworth Plantation in Fairfax County. It was there that Lee was first exposed to slavery on a large scale. Fitzhugh was able to secure an appointment to West Point for the future CSA General of the Army of Virginia in 1825.

After graduating second in his class in 1829 as an Engineer, Lee found himself in several posts. During the Mexican-American War, 1845-48, Lee served as reconnaissance officer for General Scott and took part admirably in several skirmishes in Mexico. After the war he was stationed in west Texas to protect settlers from Indian attack, having been moved from the Corps of Engineers to the Calvary.

He rose to the rank of Colonel in the U.S. Army, serving as Commandant of the United States Military Academy at West Point. He participated in the capturing of John Brown at Harper’s Ferry, Virginia.

After renouncing his citizenship and joining the Confederacy in 1861, Lee first served as military advisor to CSA President Jefferson Davis before taking command of the main rebel army, The Army of Virginia the following year.

After the war, Lee was not arrested, but paroled by the government and took the Oath of Allegiance to the United States in hopes of having his citizenship restored, something that did not happen until 1965 due to a clerical error. He did lose his right to vote and of course Custis-Lee Mansion and plantation that had been seized during the war by the Union Army.

In the years after the Civil War, Lee voiced his opposition to the erecting of statues or monuments in his honor. Although he urged reconciliation between North and South and accepted the end of slavery, he maintained his opposition to equal rights and voting rights for Blacks despite the 14th and 15th Amendments. When asked to condemn the KKK, formed in 1868, he declined to do so. In his defense, some people point to Lee’s 1862 freeing the slaves he had inherited from his father-in-law. However, that act was in legal accordance with the will that left him the slaves in the first place.

Lee served with distinction as President of Washington University in Lexington, Virginia, 1865-70. He is known for having instituted the strict military-style Honor Code at the school that later added his name to the institution. He also expanded program courses and added a law school. By all accounts, Lee was highly regarded by the university’s students and did well by the school. In that regard, I don’t think his name will be or should be removed from the university because his legacy there is related to Lee the educator, leader, and administrator. As for at West Point, of course his name should be removed.

He died on October 12, 1870 in Lexington and rests in peace in the Lee Crypt on the W&L campus. The crypt, which features the “Recumbent Statue” of Lee lying in repose is an intensely solemn place, especially for admirers of the General. His legacy is complicated, convoluted, controversial. His once untarnished, mythical reputation among white Americans has come under fire in recent years on many fronts as memorials to him are being questioned, vandalized, and even removed.

So much of our understanding of Lee’s times have been clouded by Confederate apologists and the Lost Cause history revision. Add to that our modern revulsion to chattel slavery, and today’s values being applied to a different era, leads to questions about how could this incredible inhumanity have been sustained for so long in a civilized society. Today it is a simple, moral outrage, while back in the antebellum South it was “our Peculiar Institution.” But we must remember, the majority of Americans were opposed to slavery by 1860, it was not a given to just accept it as a “sign of the times”.

Lee: “The painful discipline they (slaves) are undergoing is necessary for their instruction as a race.” As for when the system would end, he left that to “God” to determine. It is difficult, I think, to continue honoring Lee as we have done in the South due to his defense of slavery. But even more than that was his inexcusable and treasonous betrayal of the oath he gave to the United States at West Point.

(Jeff Dunson is a resident of Clarksville — Ed.)

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