Less than two months after Confederate General Robert E. Lee surrendered to Union General Ulysses S. Grant at Appomattox Courthouse, an abolitionist judge in Norfolk, VA, John C. Underwood, summoned a federal grand jury to consider charges of treason against Lee and 38 other Confederate leaders. The grand jury obliged, charging Lee with ““wickedly, maliciously, and traitorously” carrying on war against the Constitution and the “peace and dignity” of the United States. Many historians remain unaware of the indictment, which was buried in a VA post office for 72 years, only to be rediscovered in 1937.
At the insistence of General Grant, the case was never tried, on the grounds that it violated his agreement with Lee at Appomattox, which 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.”
Civil War historian John Reeves in 2018 re-examined the case in The Lost Indictment of Robert E. Lee. (C-Span Video.) He pointed out that history has in many ways been too kind to Lee. “Woodrow Wilson believed General Lee was a “model to men who would be morally great.” Douglas Southall Freeman, who won a Pulitzer Prize for his four-volume biography of Lee, described his subject as “one of a small company of great men in whom there is no inconsistency to be explained, no enigma to be solved.” Winston Churchill called him “one of the noblest Americans who ever lived.” Until recently, there was even a stained glass window devoted to Lee’s life at the National Cathedral in Washington, D.C.”
As part of the “Lost Cause” myth perpetuated by powerful Southerners, by the early 20th century Lee “had been transformed into a venerable American hero, who was highly regarded by southerners and northerners alike. Almost a century after Appomattox, Dwight D. Eisenhower had Lee’s portrait on the wall of his White House office.”
In a column summarizing his book, Reeves wrote: “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 our own time, when white supremacy has re-emerged as a potent political force, and with brazen challenges to the Constitution, “Americans will benefit from revisiting the legal case against Robert E. Lee after the Civil War.”
Though Lee surrendered at Appomattox, “the war wouldn’t officially end until the rebellion was finally put down in Texas in August 1866.”
President Andrew Johnson decided to first prosecute Confederate President Jefferson Davis, who was held at Fort Monroe in Virginia, with Supreme Court Chief Justice Salman Chase as well as Judge Underwood presiding. “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,” Reeves wrote.
This raised questions of a fair trial since it’s unlikely that impartial juries could be found in Virginia. Then Johnson and Chase were pre-occupied with Johnson’s own impeachment trial in the Senate in 1868.
The U.S. government did seize Lee’s estate in Arlington in 1864 for unpaid taxes, and barred him from holding public office. His voting rights were initially taken away, but restored in 1869.
Common Myths About Lee: He was anti-slavery and only chose the Confederacy out of loyalty to Virginia
Numerous historians have closely examined Lee’s writings and the common belief among modern-day promoters of the Lost Cause that he was anti-slavery. W. Fitzhugh Brundage, professor of history at the University of North Carolina, Chapel Hill, told PolitiFact that Lee was not anti-slavery. “Lee did not oppose slavery to the degree that he was willing to take any meaningful steps against the institution,” Brundage wrote.
Lee did write one letter to his wife in 1856 observing “that slavery as an institution, is a moral & political evil in any Country.” But he went on to say that slavery was “a greater evil to the white man than to the black race,” for whom slavery offered “painful discipline.” And he spent the rest of his life opposing advancements by African Americans. Details. What Lee Wrote About Slavery to the NYT in 1858
Military Veterans Revise Their Opinions
Like so many military veterans, Ty Seidule, a son of Virginia who went to West Point, grew up revering Robert E. Lee. He took his commission right in front of Lee’s tomb in Lee Chapel surrounded by Confederate flags. “I wanted to be a Southern gentleman” like Lee, and “what better place to be a Southern gentleman than at Washington and Lee University. I could achieve the status of the white man there.” He thought Confederates were “good Americans doing their duty. Boy, was I wrong.”
As he explained in a presentation to the New America Foundation, he grew up believing Lost Cause myths that:
the war was fought over States Rights;
enslaved people were happy;
the U.S. won because of more manpower, material and money;
Reconstruction was “an evil failure”;
Ulysses S. Grant was “a drunk and a butcher”;
Robert E. Lee was “the greatest soldier, the finest man who ever lived.”
As a retired brigadier general and Professor Emeritus of History at West Point, his view has radically changed. All these “pernicious myths were wrong,” he says. These myths of white supremacy, widely believed, “created a system of white political power which disenfranchised black Americans, which led to the violent white terrorizing of black America, segregation, (and) to a racial police state.” These things also led to monuments to Confederate leaders in the 20th century, which were in fact monuments to white supremacy.
He now believes Lee should have been convicted of treason. Only because of incompetence on the part of the US government did that not occur, he argues. Lee clearly waged war against the United States. Of eight US Colonels from Virginia in 1861, Lee was the only one who defected to the Confederacy. Why? “Because he believed so firmly in human enslavement as a social system,” Seidule argues.
Lee fought to create a slave republic and to preserve slavery. He spent 1858-60 running enslaved plantations; he was the largest enslaver in the army; he broke apart enslaved families; he ordered enslaved men and women whipped.
Seidule’s book is “Robert E. Lee and Me: A Southerner’s Reckoning with the Myth of the Lost Cause.”
General Stanley McChrystal explains why he changed his mind about Robert E. Lee
General Stanley McChrystal explains that he grew up as a Virginian near Robert E. Lee’s home, and how he changed his mind about Lee. When he was a second lieutenant, his wife gave him a portrait of Lee, which he treasured and displayed in a position of honor for 40 years. “He reflected to me almost the perfect general — brilliant on the battlefield, courageous, unpolitical, courteous, all those things.” After the 2017 white supremacist rally in Charlottesville, VA, his wife said, “I think you need to get rid of the picture.” At first he resisted. “He’s not political,” he said. She responded, “you may think that, and even he may think that. But people who come in our house won’t know that. They may think you are trying to communicate support for white supremacy or something you don’t believe in.” They discussed and argued about it for a month. Then, finally, on a Sunday morning, he took the portrait down and threw it in the trash.
“I was throwing away one of the heroes for my lifetime. It was a really tough decision to make….” Ultimately, McChrystal decided that Lee broke his oath when he chose Virginia over the United States. “There’s no getting around it. He did it for the maintenance of slavery.”
That said, he does not believe Lee was an evil man, but one who was morally blinded by the culture he grew up in. “He was a flawed human being…who at a critical moment of his life he made an incredibly bad decision, and paid for it for the rest of his life.”
This incident caused him to reflect on leadership. “If Robert E. Lee can be human and flawed, then everybody can be.”