Judged by its consequences, Robert E. Lee’s decision in April, 1861 to refuse the command of the Union army and instead offer his services to his home state of Virginia was arguably the most disastrous decision any American has ever made. If Lee had accepted the offer, Lincoln would have had the competent, aggressive general he wanted at the outset of the war, instead of having to search for two years until he found Ulysses Grant. At the same time the South would have been deprived of its most effective general. It is of course speculative, but plausible, that Lee would have taken Richmond by the summer of 1862, essentially ending the war in Virginia, and the rest of the South would have been defeated not long after. Most of the death and destruction of the Civil War occurred in 1863 and 1864. No Antietam, no Gettysburg, no Cold Harbor, no “Burning” of the Shennandoah Valley, no Sherman’s march, no Andersonville prison. No assassination of Abraham Lincoln. The South would have been left far less impoverished at war’s end, and both North and South far less embittered. As for Lee personally, his family would have kept their Arlington estate, now Arlington National Cemetery, and he would have been a national hero. Where the Lincoln Memorial now stands there might well be a monument to Lee.
In addition to the terrible consequences, Lee made his decision to fight for the pro-slavery side despite knowing that slavery was a great evil, opposing secession, and believing that the North was very likely to win.
Somehow, notwithstanding these reasons for regarding him as one of the supreme villains of American history, for many years Lee seemed secure in the pantheon of great Americans. Since his death in 1870 he had occupied a different category than other figures associated with the Confederacy. Why was Lee so esteemed even among non-Southerners? The answer lies in a combination of his personal character and his behavior after the Civil War. Theodore Roosevelt, who had no sympathy for the Lost Cause, described Jefferson Davis as enjoying “the unique distinction of being the only American with whose public character that of Benedict Arnold need not fear comparison.” Yet Roosevelt greatly admired Lee. Roosevelt regarded Lee as a great commander, but that was not the primary basis for his admiration. In 1907, on Lee’s 100th birthday, he wrote:
The circumstances [at the end of the Civil War] were such that most men, even of high character, felt bitter and vindictive or depressed and spiritless, but General Lee’s heroic temper was not warped nor his great soul cast down. He stood that hardest of all strains, the strain of bearing himself well through the gray evening of failure; and therefore out of what seemed failure he helped to build the wonderful and mighty triumph of our national life, in which all his countrymen, North and South, share. Immediately after the close of hostilities he announced, with a clear sightedness which at that time few indeed of any section possessed, that the interests of the Southern States were the same as those of the United States; that the prosperity of the South would rise or fall with the welfare of the whole country; and that the duty of its citizens appeared too plain to admit of doubt. He urged that all should unite in honest effort to obliterate the effects of war and restore the blessings of peace; that they should remain in the country, strive for harmony and good feeling, and devote their abilities to the interests of their people and the healing of dissensions. To every one who applied to him this was the advice he gave.
Lee’s high reputation was not limited to the United States. In 1925 Major-General Sir Frederick Maurice carefully and dispassionately examined Lee’s generalship in Robert E. Lee the Soldier. His considered judgment was that Lee was a superior general to the Duke of Wellington - high praise indeed from a British military historian - and belonged among the greatest military commanders in history. Winston Churchill thought that Lee was “one of the noblest Americans who ever lived, and one of the greatest captains known to the annals of war.”
Lee has never been without critics, particularly during and after the Civil War, but for over a hundred years Theodore Roosevelt’s was the predominant opinion. President Eisenhower, a career military officer, was but one of many prominent Americans not from the South who deeply admired Lee. He hung a portrait of Lee in the Oval Office and wrote that American youth should “strive to emulate his rare qualities.” Such views were reflected in thousands of books, articles, and speeches, and embedded in cultural landmarks such as Stephen Vincent Benet’s epic poem John Brown’s Body, Michael Shaara’s novel The Killer Angels, and Ken Burns’ celebrated Civil War documentary. Throughout the 20th century Lee was not a partisan or controversial figure, and was admired even by liberal democrats. In 1972, in his enormously popular television documentary America, Alistair Cooke called Lee “the last gentle knight of modern warfare,” “a man so so deeply human that it's incredible to us - to me at any rate - that he should have chosen the profession of soldiering.”
Lee has a stern image, but he was indeed “deeply human,” and in interesting ways. He was generally regarded as the best looking cadet in his West Point class, and his physical beauty was frequently remarked upon throughout his life. Yet he lacked vanity, and was highly intelligent. To be both very smart and very good-looking often inspires envy and resentment, but not in Lee’s case, because of his amiability and humility. He was very sensitive to the feelings of others. He believed in the forbearing and inoffensive use of power over others, when it had to be exercised at all. Lee was notably kind to and fond of children and animals. He had a strong and playful sense of humor, without a trace of meanness. He enjoyed the company and friendship of women more than men, but he was not a philanderer. There is no indication that he ever had sexual relations with anyone other than his wife, even though as a soldier he was away from home much of the time and doubtless had opportunities. His dominant personality traits were conscientiousness and self-denial. In an age of lengthy orations, Lee rarely made speeches, and when they could not be avoided they were always brief. Those who met Lee felt they had met a great man, and that opinion did not change with greater familiarity. Lee took responsibility for his acts. He never blamed his misfortunes on others. He was reserved but not aloof, and always approachable. In the midst of a battle late in the war, a Federal prisoner being taken to the rear cameup to Lee and complained that his confederate captor had taken his hat. Instead of brushing him aside or directing him to a subordinate, Lee interrupted what he was doing, courteously listened to the prisoner, and made sure that the hat was returned.
An interesting glimpse into Lee’s status as an American hero is afforded by the Congressional debate in 1975 over restoring Lee’s citizenship. Congress then may seem harmonious compared to today, but actually it was a time of deep partisan and ideological divisions in the wake of the Vietnam War and Nixon impeachment, accompanied by considerable rancor. Democrats had a two-thirds majority in the House and a 60-40 majority in the Senate. In 1974 a very liberal class of freshman Democrats, known as the “Watergate Babies,” had been swept into office, including figures like Patrick Leahy, Henry Waxman, Tom Harkin, Paul Tsongas, and Paul Simon. As Rep. George Miller of California said, their objective was not incremental reform: “We came here to take the Bastille.”
The Joint Resolution began: “Whereas this entire Nation has long recognized the outstanding virtues of courage, patriotism, and selfless devotion to duty of General Robert E. Lee, and has recognized the contribution of General Lee in healing the wounds of the War Between the States.” In the House progressive Democrats John Conyers, Bella Abzug, and Elizabeth Holtzman spoke against the Joint Resolution. But they were not critical of Lee; indeed, Conyers, a founding member of the Congressional Black Caucus, referred to him as “this great American.” Conyers raised some technical issues, but the reason they opposed the Joint Resolution was to protest the failure of Congress to grant amnesty to Vietnam war opponents who had refused to serve, or had fled the country (they were later amnestied by President Carter). The Resolution passed the House 407 - 10.
In the Senate (which included a young Joe Biden) the Joint Resolution was cosponsored by Hubert Humphrey, and was passed unanimously. Sen. Philip Hart, one of the great liberal champions of the day, made extensive comments. He was known as “the conscience of the Senate.” After his death his colleagues showed the esteem in which he was held by naming the Hart Senate Office Building after him. Hart very much shared Conyers’ concern about the lack of amnesty for Vietnam War opponents, but he nonetheless supported the Joint Resolution:
General Lee, following the dictates of his conscience, led the Army of the Confederacy in a war against this country. He did so in mature life, after education at the hands of the Government and after having taken a couple of oaths of office to defend the country. Why do we hold him in such respect? Basically because he was a man of conscience; that is why.
I join my colleague from Virginia in support of the resolution formally to give citizenship to General Lee. I agree with Senator Byrd that the stature of General Lee will not be enhanced one iota. He is a giant. He is a figure we revere. But basically, we revere him because he had the guts to say no when he thought his country was wrong.
How did we get from the admiring near-consensus that existed then to where we are today? It was not the result of the discovery of new facts about Lee. The first scholarly and systematic biography of Lee was Douglas Southall Freeman’s R.E. Lee, begun in 1915 and completed in 1934, which won the Pulitzer Prize. R.E. Lee is very sympathetic - Freeman was the son of a veteran of the Army of Northern Virginia, and had much in common with Lee - but it is not hagiography. Freeman was scrupulous about including evidence that appeared to be inconsistent with his conclusions. Additional information about Lee, chiefly newly discovered letters, has added only a few facts, and nothing very significant, to Freeman’s account of Lee’s life. Of course what historians do, at least academic historians, is revise and challenge the consensus of the prior generation of historians, and it was predictable that Freeman’s Lee would be an attractive target. Yet until very recently even Lee’s severest critics have acknowledged his personal greatness.
Thomas Connelly’s The Marble Man is the first book-length critique of Lee that had an impact on his public image. Yet, to Connelly, Lee was “a man who is a great historical figure in his own right . . . . Certainly none would quarrel with Freeman’s general description of Lee’s conduct. He was a good man, whose qualities often far transcended the pettiness of many who surrounded hin in the Civil War years. No one would question that he was a man of grace, dignity, humility, and deep religious convictions. . . . Washington was the central hero of Lee’s life. His practice of duty, tact, and self-discipline often seemmed a conscious effort to emulate Washington.”
Alan Nolan was an Indiana lawyer turned historian, and his Lee Considered is a prosecutor’s brief against Lee. Yet Nolan wrote that “I believe that Robert E. Lee was a great man - able, intelligent, well-motivated and moral, and much beloved by his Army. He did what he believed to be right.”
Elizabeth Brown Pryor put Lee’s thousands of personal letters under a microscope, and was strongly inclined to draw negative inferences, even from ambiguous evidence. Yet she concluded that “[h]is example lies not in superhuman virtue but in human determination; not in battlefield glory but in triumph amid life’s unexpected skirmishes. The truth he leaves with us is the one he learned from his own literary heroes, be it Don Quixote or Hamlet: that the quest is as important as the outcome—and that in the end, if you are left with nothing more, you must know that you have been faithful to yourself. Lee beckons us not to attain some impossible height of moral righteousness, but to be fabulous in our fallibility, to face unflinchingly all of the vicissitudes of life, and in so doing to transcend them.”
There are hundreds of biographies of Robert E. Lee and thousands of articles, and most of the tens of thousands of books about the Civil War include extensive information about him, often lengthy profiles. Accordingly the first question about any new biography of Lee is what does it add? Allen Guelzo is a serious historian, and Robert E. Lee: a life (Knopf, 2021) is a workmanlike one volume biography. But the answer is very little. It adds no new facts or insights. It is best understood as an effort by an old guard Civil War historian to get on the right side of the historical profession.
Recently the criticism of Lee has turned harsher. Guelzo sometimes stretches to portray Lee negatively. For example, he faults Lee for worrying about money, “even though he had married into one of the most prominent families in the District of Columbia”. Yet Lee’s own father had been imprisoned for debt and died penniless, his irresponsible older half-brother had lost Stratford, the ancestral Lee home, and his father in law was well known for mismanaging his estates. With such a family background, how could someone as conscientious as Lee not worry about money? But the serious charges boil down to two, both of which were widely disseminated by 1861: first, that Lee was a traitor to the United States, and second, that he mistreated slaves.
The treason charge was hotly debated in the years immediately after the Civil War. Former Confederates accepted that the war had, as a practical matter, eliminated the possibility of secession, but they believed that was a result of “trial by battle,” and subjugation of the Southern States by conquest. They vigorously rejected the charge of treason because it would mean not only that they had lost, but that they were criminals. Incidentally, the view that the Southern states were conquered provinces and their leaders were not traitors was not confined to former confederates; it was shared by the leading Radical Republican abolitionist Thaddeus Stevens, who offered to serve as defense counsel to Jefferson Davis after Davis was indicted.
Allen Guelzo maintains not only that Lee committed treason, but that it was “the one inarguable crime of Robert E. Lee.” This is at first glance an odd assertion - how could it be inarguable when people have argued about it since 1861? - but it is apparent that Guelzo simply means that Lee’s participation in the Civil War fell within the definition of treason in Article III, § 3, of the U.S. Constitution: “Treason against the United States, shall consist only in levying war against them, or in adhering to their Enemies, giving them Aid and Comfort.” It is “inarguable” that Lee levied war against the United States, but Guelzo begs the main question, which is to whom this definition applies. The British levied war against the United States in the War of 1812 to the extent of burning the White House, yet it would be absurd to term them traitors. The Constitutional definition of treason presupposes a primary duty of loyalty to the United States. As a purely legal matter the question of whether Lee, and all of the other supporters of the Confederacy, committed treason is dependent on the threshold issue of whether the Constitution prohibited secession. Lee did not levy war against the United States until Virginia had seceeded. Unless the Constitution did not allow a state to leave the United States, then once it had seceeded its citizens had no further duty of loyalty to the United States.
The Constitution is silent as to whether or not a state may withdraw. Some have suggested that the Confederacy was unconstitutional becasue it violated Article 1, Section 10, which forbids a state from entering “into any Treaty, Alliance, or Confederation.” However, that prohibtion applies only to states which are still part of the Unted States, and not to a state that has left. The Constitution simply does not address secession. Therefore it is necessary to look at the entire document and the nature of the government that was created. Some aspects of the Constitution suggest indissolubility; others do not. The states as separate political entities were not dissolved when the U.S. was formed; indeed, the states retained a great deal of sovereignty under the Constitution. The states may, if they wish, appoint presidential electors without benefit of a popular vote. In 1861 state legislatures appointed senators. Changes to the Constitution require state approval, not a popular vote. The 10th Amendment provides that "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.” This is the opposite of Dillon’s Rule, which prevails at the state level and provides that political subdivisions only have the powers specifically granted to them by the central government. The Constitution as a whole is ambiguous with regard to the possibility of secession, and it is necessary to consider extrinsic evidence, such as the ratification debates, the Federalist papers, the views of the framers, and the law of compacts.
The question of whether the Constitution was it a compact of sovereign states, or a new, indissoluble nation, of which the states were simply political subdivisions, preoccupied the best legal minds of the South in the years immediately after the Civil War. The first book-length treatment was the mathematician and lawyer Albert Taylor Bledsoe’s Is Davis a Traitor; or Was Secession a Constitutional Right Previous to The War of 1861?, published in 1866. It was followed by Alexander Hamilton Stephens’ two volume A Constitutional View of the Late War Between the States; its Causes, Character, Conduct and Results, published in 1868 and 1870, and a response to critics of A Constitutional View entitled The Reviewers Reviewed (1872). Almost a hundred years later the critic Edmund Wilson, in Patriotic Gore, described A Constitutional View as “ a great, cold, old monument which few people have cared to visit but which no one has succeeded in demolishing.”
The argument of Bledsoe and Stevens was that a comprehensive historical analysis showed that when it was formed the United States was, and was generally understood to be, a compact of sovereign and independent states, and the states had the right to withdraw from the compact. Bledsoe wrote “Is it treasonable then, to assert that the Constitution was a compact between the States, or the members of the Union? No one, it is presumed, will venture on so bold an assertion; for, as we have seen, this was the doctrine of the fathers of the Constitution themselves. It has been shown, by . . . their writing, that it was clearly and unequivocally the doctrine of Madison, and Morris, and Hamilton, as well as of other celebrated architects of the Constitution. Who, then, will pronounce it treason, or treasonable? . . . Is it treasonable to understand the Constitution as it was understood by the great patriots and statesmen from whose wisdom it proceeded?” . . . “If, then, any poor benighted son of the South was really guilty of treason on account of secession; this must have been either because he understood the Constitution no better than those who made it, or because he knew the law of compacts no better than the most celebrated jurists of America?” Guelzo appears to be unaware of or indifferent to not only Bledsoe’s arguments concerning treason, but of the recent scholarship on the subject by legal historian Cynthia Nicoletti. Bledsoe and Nicoletti are not mentioned in Guelzo’s otherwise extensive bibliograpy.
Neither Lee nor any other Confederate was ever tried for treason. As Allen Tate wrote of Jefferson Davis, “The Federal government did not wish to try him. It could not run the risk of having its charge of treason turned into a legal vindication of secession; for such would probably have been the issue. The Federal government would have felt just a little ridiculous to have had set aside by a court what it had won by the sword.”
The strongest indication of the weakness of the argument that secession was unconstitutional is found in the only Supreme Court decision that squarely addressed the issue, Texas v. White (1869). In that case the Reconstruction government of Texas sought to block payment on U.S. government bonds sold by the state during the Civil War. A key question was whether Texas had legally seceeded from the Union in 1861, although neither the plaintiff nor defendant actually briefed and argued it. The Chief Justice Chase dealt with this complex issue, the subject of so much learned debate, in a single perfunctory paragraph:
The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form, and character, and sanction from the Articles of Confederation. By these the Union was solemnly declared to 'be perpetual.' And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained 'to form a more perfect Union.' It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?
Dissenting Justice Grier merely observed that Texas’ ordinance of secession was “the sovereign act of a sovereign State, and the verdict on the trial of this question, 'by battle,' as to her right to secede, has been against her.”
Justice Chase’s opinion is something of an embarrassment as a legal analysis. As the distinguished legal scholar David P. Currie noted, it was “hardly . . . an adequate treatment of an issue on which reasonable people had differed to the point of civil war. It was an act of considerable audacity to treat the mere statement of purpose in the preamble as if, contrary to its natural reading, it imposed legally binding limitations on the states.” Chase’s assumption that the word “perpetual” meant indissoluble was also unwarranted. The Articles of Confederation may not have had an expiration date, but there is nothing to indicate that the states interpreted them as indissoluble; in fact the Articles were dissolved, and replaced by a completely new constitution. There was a gap of two years between when the “perpetual” union created by Articles of Confederation ceased to exist and when the last of the thirteen states ratified the U. S. Constitution.
The holding in Texas v. White was not “wrong.” Realistically, it was the only possible conclusion that the Supreme Court could reach. But it was a political decision. An honest opinion would have either forthrightly declared that the constitutionality of secession was non-justiciable because it had been taken away from the courts and decided on the battlefield, or would have actually grappled with the legal arguments of Bledsoe et al.
Thus the question of whether Lee, in serving the Confederacy, committed treason is, as a legal matter, highly doubtful and in any event was never satisfactorily resolved. The accusation faded away, because a consensus emerged that in 1861 the law was unclear at best and Lee acted in good faith and was not morally guilty. There are are many historical figures who were guilty of treason under the laws that applied to them at the time to whom no moral opprobrium attaches. One is reminded of the ancient riddle, “Why is treason never successful? Because if it is successful, it is not treason.” George Washington is at the head of the list of successful traitors, along with the other American patriots who rebelled against their king, George III, after swearing oaths of allegiance to him. And then there are the unsuccessful traitors who subsequently came to be regarded as great patriots. In Virginia Nathaniel Bacon, of “Bacon’s Rebellion,” belongs in this category. William Wallace was such a traitor, as were the Irish leaders of the April 1916 Easter Uprising, the German officers who attempted to assasinate Hitler, and many others. Yet it is not considered appropriate to refer to them as “traitors.” Calling Lee a traitor now reopens a very old and ultimately pointless debate. And even if Lee was technically a “traitor,” it was treason without treachery, treason without deception, treason based on principle. Affixing the label “traitor” today seems motivated by an impulse to depict Lee as a criminal simply because he was on the wrong side of the Civil War.
Lee was not a constitutional lawyer - at one point he confused the Articles of Confederation with the Constitution - and in 1861 his defense to the charge of treason was simple. He believed that in a conflict betwen his state, Virginia, and the United States, his primary duty of loyalty was to Virginia. He thought slavery was evil and secession wrong, but that he was nonetheless obligated to follow his state, and defend it from invasion. Today we assume that loyalty to the United States comes ahead of state loyalties, but this was far from clear in 1861. As the distinguished Civil War historian David Potter argued, at that time sectional loyalty was also strong in New England and other northern states. The difference in the North was that there was no conflict between national loyalty and state loyalties, because the northern states controlled the national government. Had the South controlled the national government the northern states may have been the ones which “treasonably” seceeded.
On the basis of his correspondence, it is apparent that Lee had decided by late 1860 that, if Virginia attempted to secede and the Union responded with an invasion, his duty was to offer his services to Virginia. But Virginia initially voted against secession, and the moment of decision did not arrive until April 18, 1861, when it was presented to Lee in a way that maximized his personal anguish. Lee had been summoned to seperate meetings in Washington with Francis P. Blair and General Winfield Scott, his mentor. Blair, on behalf of President Linclon, offered Lee command of the army of at least 75,000 men that Lincoln had called out on April 15th, with the rank of major general. What Lee had been working towards his entire career was thus dangled in front of him. But it was apparent that Virginia was about to secede. Indeed, although Lee did not know it at the time, the Virginia Convention had voted to secede the day before. Lee, consistently with all that he had said and written about secession, and despite Blair’s lengthy attempt to change his mind, declined the offer, with heavy heart. Lee was not motivated by a desire to preserve slavery. Lee’s views on race and slavery at the time were virtually indistinguishable from those of Abraham Lincoln, who, like Lee, believed that the ultimate solution to slavery was black emigration to Africa and the Caribbean. Neither believed in racial equality. Lincoln famously wrote “My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. If I could save the union without freeing any slaves I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that.” Lee, in his meeting with Blair, reportedly said that if he owned every slave in the South he would free them all to save the Union. Lincoln’s principal objective was not to eliminate slavery; Lee’s principal objective was not to protect it. All of the available evidence supports Freeman’s conclusion: “He went with Virginia on her secession because his whole background, his training, and his social and family ties led him to feel instinctively that his first allegiance, at a time of tragic but inescapable choice, was to her.”
Guelzo suggests, on the basis of extremely dubious evidence, that one of the reasons for Lee’s decision to follow Virginia was the selfish desire to save the Arlington estate for his family. This contention is contrary to the reasons Lee gave publically and in his letters to family members, and makes no sense. Lee was as aware as anyone of the military superiority of the North and the strategic significance of Arlington, which is on a bluff that was within artillery range of the White House. Lee anticipated that Arlington would be seized as soon as hostilities began, as indeed it was. By May 1864 it was a military cemetery,
Despite the dire consequences of his decision, Lee never regretted it. After the war he wrote “I did only what my duty demanded. I could have taken no other course without dishonor. And if it all were to be done over again, I should act in precisely the same manner.”
The other major criticism of Lee is that he mistreated slaves belonging to his father-in-law’s estate. The household slaves that Lee personally owned, inherited from his mother, were, according to his son, freed during the mid-1850’s. In 1857 Lee’s father-in-law, George Washington Parke Custis, died and named Lee as executor of his will. G. W. P. Custis left Arlington to his eldest grandson and namesake, Custis Lee, with a life estate to his mother, Mary Custis Lee. Guelzo views Custis’s will as “a gigantic vote of no confidence” in Robert E. Lee, apparently because Arlington was not left to him. The will was not viewed that way at the time, and it would have been inexplicable for Custis to appoint as executor of his large and complicated estate someone in whom he had no confidence. Custis’s desire to keep the family homeplace in his direct male line by giving it to his grandson, with a life estate to his daughter, was common among the Virginia gentry in the mid-19th century.
Administering the Custis estate was a thankless and unpleasant task for Lee. Custis’s wealth was mostly in the form of land and slaves, many of the slaves were idle, and the estate was in disrepair and heavily indebted. The will directed that the slaves be freed within five years. Some of the slaves expected to be freed immediately, but Lee found that because the estate was in dissarray - Custis’s management was “notoriously lax” - this was impossible if Custis’s wishes regarding bequests were to be carried out. In late June of 1859 two anonymous letters appeared in the anti-slavery New York Tribune. They were not altogether consistent, and included allegations that Custis had liberated his slaves, of whom no fewer thsn 15 were his children, on his deathbed, and that one man, eighty years old and “bent with age,” had been “turned out as a regular field hand.” But the core allegations were that three slaves, two male and one female, had recently run away to the North, been recaptured and returned to Arlington, where they had been punished by whipping, and then had been hired out to work in other parts of Virginia. Both letters asserted that Lee had personnally whipped the female slave, because the man hired for that purpose refused to do so. Lee did not respond to the letters. Later, he wrote to a friend that the stories were not true, and that “No servant, soldier, or citizen that was ever employed by me can with truth charge me with bad treatment.” In 1866, The National Anti-Slavery Standard published what it termed an interview (actually a statement taken down by a reporter) with Wesley Norris, one of the runaways. Norris’s testament is less lurid than the Tribune letters, and focused on the runaways and their punishment. It does not allege that the Arlington slaves were generally mistreated. Norris states that the actual whipping was carried out by the local constable, not Lee, but that Lee enjoined the constable to “lay it on well” and “not satisfied with lacerating our naked flesh,” “ordered the overseer to thoroughly wash our backs with brine, which was done.” The implication was that the use of brine was intended to inflict pain, but in fact salt water was commonly used to clean wounds because of its antiseptic properties, which had been known since ancient times. Lee never addressed Norris’s specific charges. Norris stated that he could bring forth “at least a dozen witnesses, both white and black” to substantiate his statement. However, there are no accounts by other witnesses, so it is impossible to be confident of the details of Norris’s testament. Did Lee really urge the constable “to lay it on well”? Norris’s testament was published to discredit Lee, and it is impossible to determine whether and to what extent it was embellished by Norris or the reporter.
Assuming that Norris’s testament is essentially correct, is it inconsistent with Lee’s contention that he could not truthfully be charged with “bad treatment” of servants? In 1859 Lee had been subject to military discipline for the previous thirty-four years of his life, and had extensive experience on court-martial duty on the Texas frontier. Military law at the time provided for whipping and other forms of corporal punishment. Virginia law prescribed whipping for runaway slaves. As executor, Lee had a legal obligation to pursue runaways and punish them. There is no reason Lee would have considered these actions to be “bad treatrment,” as opposed to an unpleasant duty. There is nothing in Lee’s life suggestive of sadism or cruelty; quite the contrary. Guelzo maintains that after Lee punished the runaways, he was “appalled at his own rage” and “sickened at himself” for the damage “done to his own self-image” and “the cruelty inflicted on the three fugitives.” The only basis offered for this speculation is that Lee did not respond to the anonymous Tribune letters, and in a contemporaneous letter to his son that mentioned the capture of the runaways Lee said nothing about whipping. This is not evidence but the absence of evidence. An alternative explanation that is consistent with Lee’s later statement denying any “bad treatment” of the slaves and what is known of Lee’s character is that Lee felt it was beneath his dignity to respond to the Tribune letters, viewed the slaves’ punisment as a distasteful duty that was legally required, was not in the grip of a rage, and had no reason to discuss it in a letter to his son.
A hundred years after Appomattox, the dominant view of the Civil War was that it was America’s great national epic, a tragic war of brothers, out of which the United States had miraculously emerged stronger and more united than before, and free of the great evil of slavery. Lee’s role in this narrative was to show that even among those who fought on the wrong side there still could be a figure of unsurpassed nobility of character, a “last gentle knight,” who set an essential example by accepting the war’s result and calling for reconciliation. Today the mid-20th century view of the Civil War has been replaced by a much cruder understanding. Essentially, it is that Southern whites were simply evil, and there could no more be a good Confederate than there could be a good Nazi. As for Northern whites, they may have been on the right side on slavery, but with few exceptions they also were white supremacists and oppressors, which they demonstrated by quickly giving up on Reconstruction and not demanding a fundamental restructuring of Southern (and Northern) society. In this narrative only black people, as undifferentiated victims of oppression (even the free blacks who owned slaves), deserve sympathy, and the Civil War was simply another dismal episode in the long and shameful history of American racism, stretching back to 1619. This leads to the condemnation and dehumanization not only of Lee, but of virtually every historical figure who does not meet today’s standards.
The existence of a man like Lee runs counter to the now dominant view of the Civil War, and so his stature must be denied. Is Lee permanently consigned to the rogues’ gallery? It seems unlikely. He looms too large in the American story, and his life is too well documented. The day will inevibly come when new historical schools will emerge and take a fresh look at Lee, reaching conclusions which cannot be predicted. But it seems equally unlikely that Lee’s place in the popular imagination as an American Hector will ever be restored.
One of the long-time objectives of progressive historians has been to create a more inclusive American history, bringing marginalized people to the forefront. For the Civil War, this has meant telling the stories of figures like Frederick Douglass and Harriet Tubman, and the nearly 200,000 black soldiers and sailors who served the Union. Yet the path of inclusion somehow has led to exclusion. It is not enough to create new monuments; old monuments must be removed. Lee has been cast out of the family. He is no longer someone who it is permissable to admire and honor. The same scholarly inquisition is well underway for Washington, Jefferson, Madison, Marshall, and many others - yes, even Lincoln - who seemed secure in the pantheon.
If a nation is a body of people who feel themselves to be one, will the United States be a nation at the end of this process of purification? Many Americans still venerate those who are now considered irredemably evil. Will they feel themselves to be one with those who insist that they condemn them?
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