Robert E. Lee, Traitor?

Jefferson Davis on Robert E. Lee

After the War to Prevent Southern Independence was over, some in the North demanded that General Lee be tried as a traitor.

Of course, before we can address the initial question, we must first start off with an acceptable definition of treason. This is how it is defined according to the U.S. Constitution:

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. 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.

The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.

It seems reasonable to interpret this as applying only to U.S. citizens--citizens of another country engaged in a war with the United States would not be considered traitors. Currently, if an American joins the armed forces of another country, he can be considered as having renounced his U.S. citizenship. (I don't know if this is automatic, or if a court needs to make an official ruling; I also don't know if this is something that goes back to the adoption of the Constitution and earlier, but my guess is yes--it seems commonsensical enough.)

However, General Lee and others did not take up arms for a foreign state. They sought to defend and protect their states in their bid for independence. If one accepts a certain understanding of the federation that acknowledges the right to secede, then it follows that one's primary citizen lies not with the federal union, but with the state. If one leaves the federation, one is still a citizen of the state; one has not switched allegiances, one has simply withdrawn from the federation along with the rest of his state.

Nonetheless, General Lee and the others were judged to be rebels by the Federal Government and those seeking to propagate the "official" line.

General Lee did apply for a pardon after the war was over; one of the conditions for obtaining one was that one had to swear an oath of allegiance. The exact text of the oath? According to Gail Jarvis:

Lee soon learned that there was another obstacle; an application for a pardon had to be accompanied by an oath of allegiance to the Union. Accordingly, on October 2, 1865, Lee, in the presence of a notary public, affixed his signature to the following prescribed oath. "I, Robert E. Lee, of Lexington, Virginia, do solemnly swear, in the presence of Almighty God, that I will henceforth faithfully support, protect and defend the Constitution of the United States, and the Union of the States thereunder, and that I will, in like manner, abide by and faithfully support all laws and proclamations which have been made during the existing rebellion with reference to the emancipation of slaves, so help me God."

We find the same emphasis on supporting and defending the U.S. Constitution in the current Army Officer Appointment Acceptance and Oath of Office.

I (insert name), having been appointed a (insert rank) in the U.S. Army under the conditions indicated in this document, do accept such appointment and do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God.

Perhaps Sarge can say something about the oath taken by enlisted soldiers and NCOs.

It seems to me that that a similar oath regarding the Constitution is required of all public employees, particular Federal employees. I do know that teachers and administrators in California have to take an oath to protect the Constitution of the United States. The oath (I don't remember the exact text, but this looks right):

I, _____________________________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear faith and allegiance to the Constitution of the United States and the Constitution of the State of California, that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter.

It would not surprise me then if public employees of other state and local governments are required to take a similar oath. Note here that one also makes reference to a state constitution.

If General Lee had renounced his U.S. citizenship by his actions, then naturally the Federal Government could set conditions as to how that citizenship was to be restored, since gaining citizenship should not be an automatic process. Was there a just cause to deprive him of citizenship while it was restored to other leaders? (See Ms. Jarvis' article for more on the question of whether General Lee received a pardon or not; plus Pardon of Robert E. Lee and General Robert E. Lee's Parole and Citizenship.) Since he was interested in being conciliatory, it is not surprising that he would not acquiesce to the wording of the oath.

Now what of the oath General Lee had taken as an officer in the Federal Army (assuming that he did take one, and it seems likely that he did)? The assertion that he had resigned his commission and so his oath was no longer binding seems correct to me. He could not in good conscience lead Federal troops against his own state, and out of loyalty to his state offered his services to Virginia.

But this new oath--does it require too much? What if for the common good instead requires that one no longer support the Constitution or the Federal government, and instead work for the creation of a new order?

Does the Constitution in itself go against the Natural Law? It seems not, unless the Constitution explicitly denies the states the right to secede. It does not. But might it be counter to reason in other ways?

What if a state and the Federal government end up at odds with one another, and it is clear that the Federal government is overstepping its bounds, as formulated in the Constitution? Even if the states ceded certain powers to the government but now wish to reclaim them, but is not able to do so through a constitutional change to the Constitution, might it not be the case that the states did not have the authority to cede those powers in the first place, under natural law? Or, what if under a different interpretation of the Constitution the right to secede is denied, and the Federal government assumes powers which belong properly to the states? And if the Federal government, despite having concentrated most power in itself, is inadequate to govern the polity because the polity is just too big, and some other new regime must be introduced?

Perhaps it is possible to for authority to be decentralized and for states' rights to once again regain their proper place while keeping the U.S. Constitution. But what if it is not? Would those serving in government be bound to maintain the regime even though it is contrary to reason? (Can the Federal government trump the power of the states to regulate corporations?)

Are there conditions, then, when an oath is no longer binding? St. Thomas on whether an oath is binding:

If, on the other hand, it be something that he can do, but ought not to, either because it is essentially evil, or because it is a hindrance to a good, then his oath is lacking in justice: wherefore an oath must not be kept when it involves a sin or a hindrance to good. For in either case "its result is evil" [Cf. Bede, Homil. xix, in Decoll. S. Joan. Bapt.]

Accordingly we must conclude that whoever swears to do something is bound to do what he can for the fulfilment of truth; provided always that the other two accompanying conditions be present, namely, judgment and justice.

Now what is explicitly promised in the oath may itself be just--but what may be unjust is the implication that an authority attempts to draw from it--the action the authority commands and which it stipulates as falling under the obligation of the oath. In such a case, one would not be violating the oath by not following the command.

Suppose, then, that the states had attempted to secede a second time--and General Lee decided once again to support his state--would he be breaking his oath of allegiance in such a case?

Such an oath of allegiance is today required of all in the employ of the federal, state, and local governments--might it not one day be extended to ordinary citizens as well? An oath of allegiance must be taken by those who are seeking U.S. citizenship. However, those who are born American citizens do not take such an oath, and it cannot be presumed that they automatically assume the oath in virtue of being born a citizen. That would be contrary to the nature of an oath, which must be taken explicitly and voluntarily. (Perhaps one might argue that the rights and responsibilities of citizenship are automatically assumed, if one does not explicitly reject them--consent is implicit. This is the problem, though--what are the rights and responsibilities of citizenship, and what are their limits? Should they not be stipulated by law and thus be promulgated? And if those stipulations are counter to natural justice and natural right?)

Perhaps the only "peaceful" regime change is one of deterioration or degeneration--going to a worse regime rather than a better one. Regimes seek to maintain their existence, and only when corruption sets in does it change to something worse, without any potent objection from the citizens. Only with continued decay and perhaps unjust violence, on the part of the government
and/or of those opposed to it for whatever reason, terminating g in a complete breakdown of the regime, can a virtuous remnant attempt to create a better, but necessarily smaller, political order.

Disobedience?

Is it the case the fulfilling one's oath requires one to obey all orders from a superior, even unlawful or unjust orders? Not obeying an unjust or unlawful command is not the same thing as disobedience. And if one cannot comply with an order from a superior, must one resign?

It may be the prudent thing to do, since passive resistance would only jeopardize himself and his family. But if passive non-violent resistance is possible and could lead to a peaceful resolution of things, would it not be justified and therefore legitimate? If there are competing interpretations of the Constitution, would not members of Congress who defend states' rights be obligated to remain in office and protest the actions of a president who would seek to prevent states from becoming independent? If they resign, then those who hold a competing interpretation of the Constitution will dominate the Federal government.

However, members of Congress are not under the direct command of the president, so there is no question of disobedience, though a tyrant may try to have them arrested for sedition or some other trumped-up charge. But what about those who are serving in the executive branch or the military?

I suppose the most obvious solution is for them to resign and to get others to do so, and at the same time take measures to remove the tyrant from office.

Moreover, the problem of size probably prevents one from finding a solution that is applicable to all polities. Even if passive resistance is possible for polities of a certain size and under specific circumstances, it may not be for polities of a larger size. (How many Chinese ministers chose to resign when they could no longer influence the Emperor or persuade the rest of the court? What else could they do?)

Comparing Constitutions

Does the Constitution of the Confederate States of America suffer from the same problem that plagues the U.S. Constitution with respect to the reserved powers clause (according to Mr. Laurence Vance)? Mr. Vance writes:

To their credit, the Federalist-dominated first Congress did add a reserved powers clause to the Constitution – the Tenth Amendment. However, this amendment contains a notable omission, which can be seen when it is compared with the similar Article II of the Articles of Confederation:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

A proposal to insert the word "expressly" in the Tenth Amendment was defeated by both houses of Congress in 1789. Although the omission of this one word does not seem too significant, it would later prove to be another fatal flaw in the Constitution.

Now for the Constitution for the CSA:

Article VI

Section 6 - State powers

6. The powers not delegated to the Confederate States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people thereof.

A comparison of the Constitutions of the USA and the CSA at Filibuster Cartoons--the author casts doubt as to whether the CSA Constitution really protects states' rights.

Constitution of the Confederate States of America (USConstitution.com; U. of Oklahoma Law Center)

Articles of Confederation (USConstitution.com, U. Oklahoma College of Law)



Christus, Dominus et Iudex historiae, miserere nobis.