excerpted from 

Robert E. Lee and Me

by Ty Seidule

.....When I read Article III, Section 3, I thought immediately of Lee:  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.

  Robert E. Lee served in the U.S. Army either as a cadet or as a Regular Army officer from 1825 to 1861. Thirty- six years. Yet at the age of fifty-four, he committed treason. No court ever convicted him, although he was indicted. Lee was paroled at Appomattox and eventually granted full amnesty, as all former Confederates were on Christmas Day 1868. I am not arguing that a jury found him guilty; none did. But I don’t need a conviction to analyze facts. When I read Article III, Section 3, Lee’s actions undeniably violated the Constitution he and I swore to defend. He waged war against the United States. Because he fought so well for so long, hundreds of thousands of soldiers died. No other enemy officer in American history was responsible for the deaths of more U.S. Army soldiers than Robert E. Lee. Lee’s Army of Northern Virginia killed more than one in three and wounded more than half of all U.S. casualties. In the last year of the war, Lee’s army killed or wounded 127,000 U.S. Army soldiers. 
 
Lee killed American soldiers; that’s a fact. But is it fair for me as a U.S. Army officer or a historian to pronounce judgment? Can I question Lee’s decision to fight against the country that educated him? The country that he served for so long and so well? He lived in the nineteenth century, I live in the twenty-first, but we both wore army blue for more than thirty years. His decision to resign his U.S. Army commission and fight against the United States haunts me because of my background as a southerner and because of my own army service. As a soldier and as a historian, I need to see beyond the myth I grew up believing to understand the man and his decision. Until recently, historians used Lee’s Pulitzer Prize winning biographer Douglas Southall Freeman’s take on the issue from 1935. Freeman wrote that leaving the United States to fight for the Confederacy was “the answer he was born to make.”

In his superb Pulitzer Prize–winning book, Battle Cry of Freedom, published in 1988, James McPherson called Lee’s decision “foreordained by birth and blood.” Emory Thomas, who wrote a well- received biography in 1995, wrote that if Lee had stayed with the U.S. Army, he “would have elected infamy.” As recently as 2005, a Pulitzer Prize–nominated historian of the South, Bertram Wyatt-Brown, wrote that “Lee had no choice in the matter” and that choosing the United States would be “the coward’s way out.” I disagree. Lee’s decision was not fated.

Recent historians have made a compelling case that Lee could have chosen differently. I will go further than that. Lee should have chosen differently because almost every part of his life up to 1861 pointed toward fighting for the United States, starting with his education. In 1829, Lee graduated from West Point, the most national institution in the country. An officer who graduated in 1841 wrote that the Military Academy “taught that he belongs no longer to section or party but, in his life and all his faculties, to his country.” Another West Point graduate wrote that the academy taught all cadets the “doctrine of perpetual nationality.” One aspect of that “perpetual nationality” took the form of an oath West Point cadets signed when they began as a cadet and took at commissioning and every time an officer received a promotion. For me the oath is the essence of why I serve.

Lee signed an oath at every promotion. In 1855, while at West Point as superintendent, Lee signed this oath:   I, Robert Edward Lee, appointed a Lieutenant Colonel of the Second Regt. of Cavalry in the Army of the Unit- ed States, do solemnly swear, or affirm, 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 orders of the officers appointed over me, according to the Rules and Articles for the Government of the armies of the United States.  Lee took his next promotion to colonel on March 30, 1861, after Lincoln selected him for a coveted assignment as commander of the 1st U.S. Cavalry Regiment, a storied unit that is still on active duty today. One reason Lee received the promotion was the belief that he would remain with the United States. When Secretary of War Simon Cameron asked General Winfield Scott if he retained confidence in Colonel Lee’s loyalty to the flag in 1861, Scott replied, “Entire confidence, sir. He is true as steel, sir, true as steel!” Lee did not hesitate to accept command and with it a colonelcy. Colonel was an exalted rank in the Regular Army before the Civil War. In fact, the first West Point graduate made brigadier general only in 1860.

After Lee accepted the promotion, events quickly led to war. Lincoln reinforced the garrison at Fort Sumter rather than surrender federal property to South Carolina. On April 12, Pierre G. T. Beauregard and the Confed- erate forces attacked the U.S. garrison at Fort Sumter, South Carolina. On the fifteenth, President Lincoln called for seventy-five thousand volunteer soldiers to quell the rebellion. In reaction, white Virginians at their Secession Convention voted to secede if the state’s white men approved a referendum on May 23. Lee did not wait for the referendum, perhaps because he worried that war would commence before that date. Or because he hoped for high rank in the new army. Army officers then and now are an ambitious lot. After wearing the eagles of a U.S. Army colonel for less than three weeks, on April 20, 1861, Lee mailed his resignation letter to the War Department. On the twenty-second, he accepted a commission from Virginia as a major general. When he pledged to fight against the United States, he was still in the U.S. Army; his resignation was accepted on the twenty-fifth, three days later. Lee couldn’t even wait until his resignation processed—three days—before he took a train to Richmond to accept a wartime commission from a rebellious state. How could Lee take a promotion and the oath and then resign three weeks later? Southern leaders did approach him in mid-March, but historians are divided on whether he had accepted an offer before his resignation. The thirty-six hours between resignation and acceptance of a commission from Virginia gives pause, but there is no hard evidence.

Before he left the U.S. Army, Lee’s letters to family and friends indicated he believed in the United States no matter what. One letter talked about Lee’s understanding that the United States was a “perpetual union,” the same words found in the Articles of Confederation. Lee saw “disunion as evil” and believed “secession is nothing but revolution” and “anarchy.” Another letter was even more clear, writing that his country “was the whole country. That its limits contained no North, no South, No East no west, but embraced the broad Union, in all its might & strength, present & future. On that subject my resolution is taken, & my mind fixed.” Ending his missive emphatically, he underlined the next sentence: “I know no other Country, no other Government, than the United States & their Constitution.” Wow. I like that declaration. Yet we know he quit the United States only a few years later. While he said, “Union always,” he later allowed that if there was no other option and Virginia seceded, he would follow. In Richmond, just after tendering his resignation, he told the Virginia House of Delegates, “I devote myself to the service of my native State, in whose behalf alone will I ever again draw my sword.”

Growing up in Virginia, I thought Lee went with the Confederacy because all of his family, friends, and army colleagues pushed him in that direction. Wrong. Much of his extended family wanted to stay in the Union. Not just in 1861, but for generations past. In 1794, his father, “Light-Horse” Harry Lee, the great Revolutionary War general, joined George Washington and thirteen thousand U.S. soldiers to put down the first rebellion since the Constitution was signed, the Whiskey Rebellion in western Pennsylvania. While Harry Lee had once called Virginia his “country,” he later decided that “our happiness depends entirely on maintaining our union” and that “in point of right, no state can withdraw itself from the union.”

Robert E. Lee chose to wage war against the United States despite the unionist beliefs of much of his extended family, many of whom remained loyal throughout the Civil War. His cousin Samuel Phillips Lee served honorably in the U.S. Navy. John Fitzgerald Lee (Samuel’s brother) went to West Point and served as judge advocate of the U.S. Army. His cousin Lawrence Williams stayed loyal and had two sons in the U.S. Army. Lee’s first cousin Edmund Jennings refused to let any friend or foe talk secession in his presence. Charles B. Calvert, a cousin on both sides of the Lee family, was a slaveholding unionist who supported Lincoln and served as a congressman from Maryland. Two of Lee’s closest friends, Edward Turner and Cassius Lee, remained loyal to the United States. Even Lee’s sister Anne Lee Marshall maintained her stand with the United States, and her son Louis fought in blue. In fact, neither Anne nor anyone else in that family ever talked to Lee again.

About twenty years ago, Lee’s best biographer, Elizabeth Brown Pryor, found a letter from Lee’s daughter Mary that shed new light on her father’s decision to fight against the United States. Lee’s decision “bewildered” his immediate family, who thought he would stay with the Union. Lee’s daughter wrote, “We were traditionally, my mother especially, a conservative or ‘Union’ family.” Mary Lee wrote that Lee did not rush to tell his family about his decision to resign, perhaps because he was embarrassed. When he finally gathered them in his office, he told them, “I suppose you all think I have done wrong.” Like the majority of his friends and extended family, Lee’s nuclear family mainly opposed Virginia’s “ordinance of revolution.” Lee’s wife maintained her staunch unionist views into 1861. Eventually, she became an ardent Confederate, but not until after her precious Arlington home was occupied by the U.S. Army. Lee’s son Custis, a popular officer at West Point in 1861, was initially “no believer in secession,” as a cousin remembered. Rooney, Lee’s second son, reacted glumly to the excessive celebration after secession was announced. “He said people had lost their sense and had no conception of what a terrible mistake they were making.” Both Fitz and Rooney would later become Confederate generals, but they delayed their decision on secession until weeks after their father.

If Lee’s family and friends leaned Union, so too did his army contemporaries. Lee’s mentor and hero was General Winfield Scott, a Virginian. Scott was the greatest American soldier from the War of 1812 to the beginning of the Civil War. He joined the army in 1808, and by 1814 he had been promoted to brigadier general. He would continue to serve as a general for the next forty-seven years, to include twenty years as the commanding general of the army. Scott, the Virginian, never once considered leaving the army for his home state. When a Virginia delegation approached Scott about service in the commonwealth, he rejected the notion immediately. Scott emphasized in February 1861 that “it is my duty to suppress insurrection—my duty!”

Scott was hardly the only southerner to remain loyal. The Virginian George Thomas is now one of my heroes for staying loyal and fighting the rebellion with courage and skill. He saved the U.S. Army from destruction at the Battle of Chickamauga in 1863, earning the nickname the Rock of Chickamauga. In the winter of 1864, Thomas destroyed John Bell Hood’s Confederate Army of Tennessee at the Battle of Nashville. Thomas later told a colleague, Thomas B. Van Horne, that “there is no excuse whatever in a United States officer claiming the right of secession.” Van Horne reported that Thomas “believed that there was a moral and legal obligation which forbade resignation, with a view to take up arms against the Government.” By the end of the war, Thomas harshly condemned the entire Confederacy: “Their cause was cursed in the beginning, but their infatuation has led them on a suicidal course until they now see nothing before them but disgrace and infamy.” I couldn’t agree more.

Plenty of other Virginians and other southerners felt and acted like Thomas. The Virginian Philip St. George Cooke graduated from West Point two years before Lee but never wavered in his loyalty, famously declaring, “I owe my country much, my state little.” Cooke’s family provided him with many reasons to leave the Union. His son-in-law was J. E. B. Stuart, Lee’s cavalry commander. Stuart, the Confederate, was so angry at his father-in-law’s choice that he renamed his son from Philip St. George Cooke Stuart to James Ewell Brown Stuart Jr. Both of Cooke’s sons also fought for the Confederacy. Yet it’s Cooke’s stirring words that reflect the true West Point graduate and U.S. Army officer:   The National Government adopted me as a pupil and future defender; it gave me an education and a profes- sion, and I then made a solemn oath to bear true allegiance to the United States of America, and to “serve them honestly and faithfully against all their opposers whatsoever.” This oath and honor forbid me to aban- don their standard at the first hour of danger.

By May 1861, eight West Point graduates from Virginia had a colonelcy in the U.S. Army. It took an average of thirty years for those eight to reach colonel after graduating from the U.S. Military Academy. The Virginian René De Russy, class of 1812, waited forty-six years to pin on that rank. Looking carefully at those eight U.S. Army colonels from Virginia confirms that Lee’s decision was abnormal. Of those eight, seven remained loyal to their solemn oath to the U.S. Constitution. Only one colonel resigned to fight against the United States. Robert E. Lee. Put another way, 88 percent of long-serving Regular Army colonels from Virginia stayed with the United States. If we expand the scope to include all slave state U.S. Army colonels who graduated from West Point the total number jumps to fifteen. Of those fifteen, twelve remained loyal, or 80 percent. Lee was an outlier. Most officers of his experience and rank remained with the United States.

Growing up in Virginia, I saw no monument to these brave and loyal men. I still don’t. The more I learned about Lee’s decision, the more I realized that he did not have to leave the U.S. Army. Freeman’s admonition that joining the Confederacy was “the answer he was born to make” is another lie from the Lost Cause myth. Lee chose to renounce his oath. I’m not making a presentist argument in thinking Lee’s decision was wrong. Plenty of other senior southern army officers agreed with the Constitution’s definition of treason, agreed that Lee dishonored thirty years of service. When a senior officer, a colonel, is asked to fight for his country, he or she fights unless given an unlawful order. Fighting a rebellion was and remains a lawful order. In fact, one of the reasons for the creation of the U.S. Constitution was the inability to suppress rebellions, like Shays’s Rebellion in Massachusetts. The U.S. Army has crushed rebellions throughout its long history. Disagreement with policy is no excuse to take up arms against the government. Other Regular Army officers fought in Mexico, even though they felt the war unjust. Officers fought against Native Americans when that cause was unpopular and seen by some as morally unac- ceptable and even reprehensible. The military doesn’t practice democracy; the military enforces democracy. In 1861, Lincoln was elected fairly under the U.S. Constitution. U.S. Army officers who chose war against the president of the United States and the Constitution were in rebellion and, by law, traitors.

As a professional soldier, Lee resigned, but could he ever go against the oath’s prescription to defend “the United States, paramount to any and all allegiance … to any State,” or “against all enemies or opposer”? In my opinion, no. Not legally or ethically. And of course, fighting for slavery meant it was morally wrong too. One cousin, after hearing of Lee’s decision made after praying for guidance, coldly replied, “I wish he had read over his commission as well as his prayers.” Another West Point graduate, Henry Coppée, criticized Lee in print in 1864. “Treason is Treason,” he said. Lee “flung away his loyalty for no better reason than a mistaken interpretation of noblesse oblige.”

 Lee could have chosen differently. Like Scott and Thomas, he could have fought for the United States. Or he could have sat out the war. Lee was fifty-four and older than most of the battlefield commanders. Alfred Morde- cai, West Point class of 1823, was the leading expert on ordnance in the country. A North Carolinian by birth, Mordecai rejected an offer to serve in the Confederacy but still resigned his U.S. Army commission and sat out the war teaching mathematics in Philadelphia. Nor did Lee try to use his influence to stop Virginia from seceding. The consequences of Lee’s betrayal led many others on the path to treason. Lee’s decision was momentous because of his status: son of an American Revolution war hero, Mexican-American War hero, army colonel, son- in-law of George Washington’s adopted son, and suppressor of John Brown’s raid. In Alexandria, all looked to Lee. The local newspaper, my hometown paper, the Alexandria Gazette, wrote on the day Lee mailed his resignation, but before his decision was announced, “We do not know, and have no right to speak for or anticipate, the course of Col. Robert E. Lee. Whatever he may do, will be conscientious and honorable.” The pro-secession Gazette put no pressure on Lee to resign. If he did resign, the paper hoped Virginia would give him command of its troops. The paper fawned over him. “His reputation, his acknowledged ability, his chivalric character, his probity, honor and—may we add, to his eternal praise—his Christian life and conduct—make his name a ‘tower of strength.’” Lee’s actions carried great weight in Virginia and among army officers. One person who lived near Arlington noticed that “none of them wanted secession, and were waiting to see what Colonel Robert Lee would do.”

A relative noted, “For some the question ‘What will Colonel Lee do?’ was only second in interest to ‘What will Virginia do?’” Lieutenant Orton Williams, Mary Lee’s cousin, was aide-de-camp to Winfield Scott. When Williams heard the news, he said, “Now that ‘Cousin Robert’ had resigned everyone seemed to be doing so.” Would as many officers have resigned their commission if the popular Robert E. Lee had remained loyal? Of course, we will never know, but Lee’s decision was momentous not only for his family but for many others trying to decide what to do.⁵²