Articles and Book Reviews by Fergus M. Bordewich
The Cost of Conciliation
Andrew Johnson said death was ‘too easy a punishment’ for Lee. But by 1868 he had declared a full amnesty.
[Book review] The Lost Indictment of Robert E. Lee: The Forgotten Case Against an American Icon by John Reeves
Reviewed By Fergus Bordewich in The Wall Street Journal, July 2018.
A RECENT POLL by the Civil War Trust, a non-profit group devoted to the preservation of battlefields, found that fewer than nine percent of respondents agreed with the statement that Robert E. Lee "turned his back on his country and his flag when he decided to fight for the Confederacy," while more than ninety percent of believed that "even though he fought for the Confederacy," Lee "still exhibited many honorable traits [and] is still worthy of respect today." Significantly, only about seventeen percent of the respondents hailed from the former Confederacy; the vast majority were in states that comprised the Union during the Civil War.
The question, boiled down to its essence, was really this: was Lee a traitor to the United States, and if so did it matter? At a time when the removal of Confederate monuments has spurred controversy and sometimes outright violence—most dramatically last year in Charlottesville, Virginia—the emotive power of Lee as a symbol of the nation's less than fully healed racial past seems more pertinent than ever, as Mr. Reeves, an editor and writer at The Motley Fool argues in this short but provocative and penetrating book.
The vast majority of the victors in the Civil War had no doubt at all that Lee had committed treason and deserved to be punished for it. In 1865, the abolitionist Wendell Phillips condemned Lee as the "bloodiest and guiltiest" of all the rebels, while the New York Times argued that Lee had waged war against the United States "more strenuously than any other man in the land," and President Andrew Johnson declared that death would be "too easy a punishment" for him. Unionists asked, if Lee was not a traitor, then who was? In throwing in his lot with the Confederacy Lee, a former superintendent of West Point, had betrayed the oath he had taken to defend the United States, and embraced the cause of rebels who were determined to overthrow it. Northern condemnation of Lee was all the greater because he had proved himself to be such a talented general, repeatedly leading Confederate forces to victory and thereby helping to prolong a war that ultimately cost as many as 750,000 lives.
In the decades after the war, Lee, who died in 1870, became an embodiment of what the resurgent South wanted to believe about itself: the shining epitome of all that was best in a largely fictional prewar world in which slaves loved their masters and honorable men fought for a noble "Lost Cause" that was overwhelmed by Yankee numbers. With the spread of Jim Crow laws an attitudes, this mythic Lee entered the pantheon of all-American heroes. As president in the 1950s, Dwight Eisenhower hung Lee's picture on the wall of his White House office. Twenty years later, President Gerald Ford officially "pardoned" Lee, though by that time it was likely that few Americans thought that Lee was guilty of anything except picking the wrong side. Mr. Reeve notes that Lee had actually been amnestied in 1868, a fact—along with his indictment for treason -- that by the 1970s had virtually been erased from American memory.
In effect, writes Mr. Reeves, Lee became a stand-in for the nation's collective amnesia with respect to much of what the Civil War meant, most particularly widespread treason in defense of the morally indefensible institution of slavery. (Anyone who still doubts that the war was fundamentally about slavery need only read the ordinances of secession that were passed by the southern states themselves.) Writes Mr. Reeves, "By examining the evolving case against [Lee] from 1865 to 1870 and beyond, we will better understand the history Americans tried to forget."
How did a man who manifestly committed treason wind up not just celebrated but even beloved by many? After Appomattox, it should be noted, Lee urged fellow Confederates to quietly go home rather than resort to guerrilla warfare, but it is a stretch to transform the good advice of a cornered man into proof of transcendent nobility. In Mr. Reeves's telling, the Lee legend has less to do with Lee the man than it does with the nation's abandonment of Reconstruction and of freed former-slaves after the war, the embrace of racist policies across the South and parts of the North, and the idealization of the "Lost Cause," which romanticized the antebellum South and blurred the consequences of the nation's abandonment of the rights of African Americans.
Mr. Reeves dilates rather too long on Lee's personal involvement with slavery. He writes, "Like many Americans after the war, Lee preferred to move forward as if he had been against slavery all along." Lee's admirers have asserted that he actually opposed slavery, when in fact he only expressed distaste for it, a common pose among patrician Southerners who disdained slavery in principle while profiting from it in practice. Lee owned few slaves in his own name, but oversaw almost two hundred belonging to his wife Mary. In an 1856 letter to Mary, he wrote: "The blacks are immeasurably better off here than in Africa, morally, socially, and physically," adding, "The painful discipline they are undergoing is necessary for their instruction as a race." After the war, Lee expressed the view that blacks couldn't vote intelligently, and that "it would be better for Virginia if she could get rid of them." These repellent views deepen our understanding of Lee's character, and repellent, but they have no bearing on the putative charge of treason.
Most Americans assumed that the rebels would be made to pay for their disloyalty. They asked: How many of them should be put on trial? Hundreds? Thousands? Only the senior leaders? Should the guilty be hanged? Or just be stripped of political rights? Should their land be confiscated and handed over to freed slaves or Union veterans? (Lee's Arlington estate was seized by the army and given over first to a colony of escaped slaves, and later to Arlington National Cemetery, which surrounded the general's mansion with the graves of the Union dead.) All these were open questions. President Andrew Johnson called for the most condign punishment.
Although Johnson is today remembered for little else than his Negrophobic hostility to Radical Reconstruction, he was the only slave-state senator to remain loyal to the Union, and served as a vigorous wartime governor of Union-occupied Tennessee. He initially sought the federal prosecution of thirty-six high-ranking Confederates, including Lee, Confederate President Jefferson Davis, and former U.S. vice-president and Confederate general John Breckinridge, for "high crimes and misdemeanors against the United States." In June, three months after Appomattox, they were formally charged by a federal court in Norfolk with "traitorously" acting to "subvert, and to stir, move and incite insurrection, rebellion and war against the said United States."
Prosecution should have been simple. Instead, it stumbled and lurched, and ultimately collapsed. Mr. Reeves does an able job of untangling the political backing and filling, shifting public sentiment, tactical misjudgments, and legal hurdles that shaped the indictment and ultimately crippled it. Hobbling the case from the start was the fact that the charges were filed in Virginia, where the alleged crimes had been committed, but where it became clear that it would be difficult, if not impossible, to select a jury that would convict leaders of the Confederacy. Attorney General James Speed insisted that for any treason trial the federal circuit court must include the Chief Justice of the Supreme Court, in order to reflect the gravity of the charge. The Chief Justice, Salmon P. Chase, a radical abolitionist, didn't oppose the trial, but declined to preside until the war had legally been terminated, which did not occur until August of 1866. Lawyers haggled over whether Ulysses Grant's parole of Lee at Appomattox protected him from prosecution at all, while other officials went back and forth over t
he risk of empaneling a "packed" jury that would guarantee conviction.In practical terms, Lee's fate largely hinged on what happened to the arch-rebel Jefferson Davis, who had been captured by federal troops in Georgia in May, 1865. Through most of 1866, the case against Davis seemed airtight. Chase was finally ready to proceed by the spring of 1867, but by then the lead prosecuting attorney, William Evarts, no longer was, and asked for a new indictment. Davis's trial was then postponed to March of 1868, but by that time Chase was presiding over the impeachment trial of Andrew Johnson. (The articles of impeachment accused him of firing radical Secretary of War Edwin Stanton without consulting the Senate, but the underlying case against him was the purely political one of thwarting Reconstruction.)
In the meantime, the public mood was swinging against prosecution of the former Confederates. Growing numbers of Northerners just wanted to put the war behind them. Even Horace Greeley, the abolitionist editor of the militantly pro-war New York Tribune now called for reconciliation, and personally put up $25,000 of his own money for Davis's bail. (Unlike the imprisoned Davis, Lee was never jailed, and lived openly, first in Richmond and then in Lexington, Virginia, where he was named president of Washington and Lee University.) It had also become clear to Johnson that his only hope for reelection lay with the Democratic Party, which meant restoring the voting rights of Southerners as expeditiously as possible. Even as the administration haltingly pursued treason charges against Lee and the others, the president was proclaiming amnesty wholesale for all but the topmost Confederates. Of Johnson, writes Mr. Reeves, "His belief in white supremacy trumped his desire to make treason odious." By the spring of 1868, he had given up entirely on the prosecution. At last, in November 1868, after the election of Ulysses Grant, who had never endorsed prosecution of Lee, Johnson's lame duck administration decided to "close out the rebellion," in Mr. Reeves's words, by declaring full amnesty for Lee and the remaining Confederate leaders under indictment.
Only one Confederate was ever convicted of a war crime: Henry Wirz, the commandant of the Andersonville, Georgia prison camp, where thousands of Union soldiers died under appalling conditions. Nathan Bedford Forrest, the pre-war slave trader who presided over the massacre of black federal soldiers at Fort Pillow, Tennessee in 1864, and went on to help establish the Ku Klux Klan, was never even charged with a crime. Mr. Reeves points out that at the time Andrew Johnson left office the only American who had ever been executed for treason was the abolitionist John Brown, for leading seventeen men in an 1859 attack on the federal arsenal at Harper's Ferry.
Over time, Americans generally came to regard the official forgiveness of Lee, Davis, and other Confederates as a positive symbol of the post-war "reconciliation" of North and South. Of course, that reconciliation came at the expense of some 4 million freed African Americans, who were stripped of their civil rights in the southern states and subjected to systemic terrorism by former Confederates and their heirs well into the twentieth century.
What difference would the conviction of Lee and Davis have made? No one can say for certain. Perhaps it would have deepened southern bitterness. Or possibly it would have served notice that treason was a crime with consequences, and have deterred unreconstructed Confederates such as Nathan Bedford Forrest from taking vengeance on freed African Americans. The opening, this April, of a new memorial in Montgomery, Alabama dedicated to the 4,400 victims of lynching only begins to suggest the price that American blacks—and the conscience of the country—would pay for letting the Confederate leadership get off scot-free.