- - Monday, June 11, 2018


By John Reeves

Rowman & Littlefield, $27, 264 pages

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The question of why communities across the country should continue to honor the man who 157 years ago took command of the Army battling U.S. troops has been a roiling debate for some years — intensified since the out-of-control protests in Charlottesville last summer over steps to remove the city’s monument to Robert E. Lee.

Just last month, for instance, Columbia, Missouri, renamed the Robert E. Lee elementary school; the Ft. Myers, Florida. city council held a hearing on whether to remove a bust of Lee from Monroe Street; and the city council in Alexandria, Virginia, moved forward with a plan to change Lee Highway’s designation to Richmond Highway.

But rather than question why such memorials stay in place, in his new book John Reeves asks an even more basic question: Why the adulation of Lee in the first place? Why was this man, who took the formidable military skills he received as a West Point cadet and turned them against his own country, not punished as a traitor? Why was this man, who was unrepentant in his belief that freed slaves of African descent were inherently inferior beings, not looked upon as a pariah?

Lee had, after all, been indicted as a traitor. But not only was he never tried, all the records of the indictment had for decades disappeared. It is the fact that the documents have now been recovered that lead Mr. Reeves to write “The Lost Indictment of Robert E. Lee.” The core problem in determining whether the heroes of the South should be called to task for the insurrection, Mr. Reeves points out, was the tension between healing and justice.

In May 1865, President Andrew Johnson issued a sweeping amnesty for those who had participated in the rebellion against the Union. But that proclamation excluded those who had held significant positions in the Confederacy. Those men had to apply individually for a pardon, including in their application an oath of allegiance to the United States. Virtually all such requests for pardons were granted. Lee’s was not.

The explanation was that Lee’s loyalty oath was lost. In 1970, the pledge was discovered at the National Archives. This was the missing piece that would have led Andrew Johnson to pardon Lee. And so, more than a century later, Congress passed, and President Gerald Ford with much ceremony signed, a pardon.

There’s a good bit of hooey in that story. Officials at the Archives said that the oath had never been lost and in fact had been on public display. In the 1975 congressional debate over the Lee pardon measure, Rep. John Conyers tried ferociously to get those facts to his fellow lawmakers, but “for the overwhelming majority of congressmen, the ‘story’ was far more attractive than the truth,” Mr. Reeves writes.

The truth: Andrew Johnson never had the slightest intention of pardoning Lee; he considered him guilty of treason and considered punishment a national imperative.

The tangled, at times farcical, tale of why Lee never faced trial on the treason indictment makes up the bulk of Mr. Reeves’ book.

Lee’s indictment was handed down on June 7, 1865, by a federal grand jury in Norfolk. It alleged that Lee took actions “to stir, move and incite insurrection, rebellion and war against the United States of America,” specifically by waging battle against Union forces in Dinwiddie County, Virginia, on April 1, 1865.

Those charges could not immediately go to trial until the war was officially ended, and that did not happen until Johnson on April 2, 1866, proclaimed the insurrection over. The Johnson administration felt that to give credibility to Lee’s trial, Chief Justice Salmon Chase had to be a presiding judge. But since the indictment was handed down in Virginia, the trial had to be conducted there, and Chase refused to participate as long as Virginia was still under military control. Not until Aug. 20, 1866, did Johnson proclaim that civil, rather than military, authority was in effect throughout the country.

But a realignment of the judicial circuits, and then his duty to preside over Johnson’s impeachment trial, kept Chase unavailable until the summer of 1868. By then it was clear that no jury made up of Virginians would be likely to convict Lee. So on Christmas Day, 1868, Johnson bowed to the inevitable and granted full amnesty to everyone who had participated in the South’s rebellion, including those still under indictment.

Almost immediately, Lee’s friends began the job of burnishing his image. The portrait that emerged: Lee was not only a brilliant general and an estimable gentleman, but that he was merely following his obligations as a citizen of Virginia to lead its troops once the state withdrew from the Union. It is only in recent years that that image is being questioned — but the image might have been quite different had the man actually been convicted of treason.

• Daniel B. Moskowitz has written broadly about legal affairs, including articles for BusinessWeek, the American Bar Association Journal and the Journal of American Law.

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