It is often said by commenters of this blog — and elsewhere — that Robert E. Lee and others serving in the Confederate army were “traitors” to their country. Whatever contributions they made to national reconciliation or the public welfare later in life, they deserve no public honor or recognition in the form of statues, names on buildings or other memorials. In the column below Lloyd Garnett, an amateur Virginia historian, argues that the “treason” label is an anachronism based upon a faulty understanding of the evolution of the nation’s identity. — JAB
by Lloyd Garnett
Supporters of the Erasure & Destruction Commission, aka Renaming Commission, are fond of displaying their ignorance regarding the legal framework of the United States under the Constitution. Never is their misguided misapprehension more evident than when they declare that the Confederates were “traitors.”
The charge is so unarguably counterfactual as to be absurd. While forgiveness (not forgetfulness) should be our Christian impulse, it is our duty to our birthright to “life, liberty and the pursuit of happiness” – which is to say, our individual and political sovereignty under God – to firmly set the record straight.
Setting the historical record straight is not a matter of rehashing bygones, which ought to be left as bygones. Rather, understanding the important Constitutional arguments involved then, is critical to grasping the political and social arguments now. As the current arguments by the ignorant and the malevolent, have today devolved into riotous violence, injury and destruction of property, iconic art and symbolic reminders of our worthy heritage, it should be obvious that appreciation for the concept of “government by consent of the governed” is at stake.
FIRST, we must start with the plain language and known intent of the Constitution, which was adopted within the living memory of some, and by the parents and grandparents of many, who lived through the events of 1860 -1865.
By that Constitution, the Southern States had, as all states today have, the Right to Withdraw from the Union; to assume/resume the powers they previously delegated to the Federal government and establish such governmental arrangements as the people of the respective, sovereign States desire. Nowhere in the Constitution is withdrawal by a sovereign State prohibited. This is not an accident or an oversight by the Framers. It is intentional.
#1) The first Founding Document (“The Declaration of Independence”) was approved by all 13 colonies. In it or by it, they each and collectively declared themselves to be free and independent, sovereign States, and asserted their right of secession from Great Britain as fundamental to government by consent.
#2) When the question was posed in the Constitution Convention, whether the proposed United States could prevent a State from leaving the proposed Union, the idea was summarily rejected. James Madison (“The Father of the Constitution”) advised the assembled delegates, that any attempt to assert such control would doom ratification because the States would never assent to prohibiting the very action by which their independence was gained. As the States had so recently fought a very bloody and costly war, defeating the most powerful nation on Earth, to assert that very right, Madison’s belief is eminently indisputable.
#3) Whereas the Preamble of the preceding Articles of Confederation referred to an objective of establishing a “perpetual Union,” the Framers of the new government’s Constitution deliberately deleted the word “perpetual” from the document.
#4) The Bill of Rights, specifically Amendments IX and X clearly must include the right of the people of any State to withdraw from the Union, as it is not otherwise prohibited anywhere in the Constitution… to this day.
#5) Virginia, Rhode Island and New York all reserved the right to withdraw and/or to resume all of the powers delegated to the Federal government, as a caveat to their ratification of the Constitution and joining the proposed Union. These three States were accepted by their sister States into the Union with this caveat. As the Constitution specifies that all States must be treated equally, the caveat demanded by Rhode Island, New York and Virginia was thus automatically applicable to ALL of the States.
#6) All of the States ratifying the new Constitution, had to first secede from the previous government under the Articles of Confederation. This they each did independently, with Rhode Island being the last to secede from the first and join the second, in 1790, three years after the first state, Delaware did so. By seceding from Great Britain and again, from the government under the Articles of Confederation, it is manifest that the overarching right of secession was embraced by them all.
#7) It was, therefore, clearly and universally believed that the sovereign States had the right to withdraw (secede) from the Union. The right of secession was even taught at West Point, using the textbook A View Of the Constitution of the United States, by William A. Rawle, who was one of the foremost Constitutional scholars of the day. A native and lifelong resident of Philadelphia, Rawle was personally well acquainted, met and freely corresponded with a number of the Framers.
#8) Acting in Convention, the New England States asserted their right and threatened to secede at least 4 times – over the Louisiana Purchase of 1803, the War of 1812 (Which war those States effectively “sat out” and did not participate.), the War with Mexico, and the admission of the Republic of Texas as a sovereign State. No one questioned the New England States’ right to do so.
SECOND: Therefore, having the Right to Secede and to form a new government of their choosing, South Carolina and the six States, who first joined her, had the right to defend themselves against a hostile military invasion and naval blockade of South Carolina’s only deep water harbor and most important access to existential international markets. (As well as to resist the massive, violent, overland military invasions that were launched upon them soon after.)
“But, but, …” some irrelevantly feel compelled to declare, “the Confederates fired the first shot at Fort Sumter!” Apparently, they hold that by “firing the first shot” a country is guilty of starting a war, regardless of provocation.
By this logic, the United States was guilty of starting the War with Japan! In the early morning of December 7, 1941, before any attack on Pearl Harbor was even anticipated, the U. S. Navy sank a Japanese submarine. This was the first shot fired in America’s war with Japan, and Americans fired it. No one credibly asserts that the U. S. started World War II. The comparative analogy to what occurred 81 years earlier in Charleston Harbor is solid.
As Japan was merely suspected in November/December 1941, of having launched a war fleet possibly against the United States’ interests in the Pacific, the Lincoln government was by contrast, known to have launched a war fleet to reinforce and resupply Ft. Sumter in Charleston Harbor. By International Law, all countries have sole jurisdiction over their harbors and Charleston Harbor was subject to the jurisdiction of the CSA.
The purpose of Lincoln’s blockading and reinforcing fleet was not to put down a rebellion or insurrection, as he claimed. Rather, the new Confederacy wished only to withdraw and form their own nation, NOT to overthrow the USA. So, Lincoln’s actual intent was to defeat the fledgling new nation, before it could fully effect its sustainable independence.
The shots fired at Ft. Sumter by the Confederates, were for the purpose of defending its harbor against further attack and blockade, as they knew additional U.S. warships and reinforcements were on the way. A successful reinforcement of Ft. Sumter would close that vital harbor and severely damage Southern independence hopes. And certainly, they reasoned that Lincoln’s military and naval subjugation efforts would not stop with just Charleston Harbor.
Thus, the Confederates having lawfully withdrawn from the Union and formed a new government and nation, according to the desires of the people of the respective sovereign Southern States, opened fire to take possession of Ft. Sumter. That action was necessary to assert the new nation’s rights, which are the rights of ALL nations to protect and defend its borders, territory, harbors and access to sea lanes and commercial interests.
When, subsequently, Lincoln announced a full scale military invasion of the 7 seceded States, Virginia, North Carolina, Tennessee, Arkansas and Missouri, until then pro-Union, were vehemently appalled by the Constitutional violation of this long-accepted right to secede from a hostile government and to govern themselves according to their consent. Those five States’ popular opinions changed virtually overnight from pro-Union to pro-secession, and they severed their Union bonds to defend their sister Southern States and themselves from illegal and violent coercion. The people of the seceded States believed they had a lawful right and a moral obligation to do so.
From the cornerstones of the Founding as detailed in The Declaration of Independence and the U.S. Constitution, the building blocks of the Confederates’ intellectual fortress against the defamation of “treason,” is summed up by the following question:
IF the right of government by consent is legitimate (It is!) , and IF it is not prohibited by the Constitution (It’s not!), and IF ALL nations have a right to defend themselves against foreign military and naval aggression (They do!) , and IF the former U.S.A. military, naval and civilian government officials’ previous oaths were to defend the U. S. Constitution and to obey lawful orders, etc. (They were!) , and IF by their resignations, the Southerners concerned were no longer bound by that oath (They weren’t!) … then how could they be guilty of treason?
The answer is that they could not because they were not.
This fact unavoidably came slowly to be understood by the victorious U. S. A.’s legal scholars, jurists,and eventually, reluctantly by its politicians soon after the exigencies of warfare had ended and the many questions and challenges of re-establishing governance began to take precedence.
After the Southern armies had surrendered or voluntarily disbanded, CSA President Jefferson Davis was incarcerated for two years, with the aim of prosecuting and convicting him of treason and then, hanging him.
In attempting to build a case against Davis, however, two successive U.S. Attorneys General, and the first two “Independent Counsels” in U.S. history, all independently concluded that Davis and the Confederates could not be justly convicted of treason.
It is believed by many that a majority on the U.S. Supreme Court believed so, as well, and were desperate to avoid ruling on the question. In his seminal The Civil War – A Narrative, Vol. III, pages 1035 -1039, Shelby Foote describes the evolution among Davis’s captors, would be prosecutors and President Johnson’s Cabinet, of the realization that Davis was not guilty of treason. Further, they rightly feared that to subject the question to a trial would result not only in Davis’s acquittal but that his acquittal would support the legality of secession!
Highly respected legal experts, in Washington City and all across the North, including, wrote Foote, the Chief Justice of the U.S. Supreme Court, Salmon P. Chase, had reluctantly reached this same conclusion. Caught in a legal bind, and thus out on a legal limb all by himself, Federal Justice Underwood, the presiding judge, finally dismissed the charges against Davis, using a convoluted, incoherent argument claiming justification by the newly ratified 14th Amendment, ex post facto.
Thus, by a legalistic pretense, did Justice Underwood save the bloody, deadly, costly military conquest of the Southern people, from being civilly, peacefully reversed in the Court of Law!
FOURTH… but SLAVERY!
In no way, can the issue of slavery be related to the charge of “Traitor,” which is wrongly assigned by mostly ignorant and a few malevolent accusers against the long dead Confederates. Slavery, morally wrong then as now, was nevertheless legal. And if one supported a lawful activity, it could not be grounds for a charge of treason. If one supported lawful slavery as grounds for lawful secession, even that could not be grounds for treason, either.
This part of the argument could be left at the last sentence above (PERIOD). But some, imbued with 158 years of relentless victors’ propaganda to the contrary, might require some supporting context. If so, I will attempt it as briefly as I can.
“In this enlightened age, there are few I believe, but what will acknowledge, that slavery as an institution, is a moral & political evil in any Country,” wrote Robert E. Lee, years before the war. He was probably correct about the prevailing opinion, North and even South. However loathe I may be to disagree with Marse Robert, based on my extensive reading, I believe most were amazingly ambivalent. And if there was any cause that might justify a war, Ending Slavery should arguably lead the list … IF … and ONLY if … it could NOT be peacefully dismantled.
Here, we should note that a nationwide, orderly, peaceful emancipation of the slaves was never seriously put forth. Some Southerners freed their slaves voluntarily and without compensation. (This commendable act was not without financial hardship, and could be ruinous. The cost to Robert E. Lee’s family of freeing 192 or so slaves, for one example, is estimated to have been between $8 and $12 million in 2023 dollars.) So, some Southerners talked of government sponsored, compensated and gradual emancipation to allow for peaceful and efficient societal adjustment. But the Northern interests, having decades before rid themselves of slavery, mostly by selling their slaves via New England slave traders, would not hear of it.
In lieu of peaceful and orderly emancipation, a few Northern “radical abolitionists” actively funded and supported violent abolition, such as John Brown’s infamous, murderous rampages in Kansas and Virginia. Prior to John Brown’s Raid on Harpers Ferry, there were more Emancipation Societies in the South than in the North. But the celebratory Northern reaction to “Bleeding Kansas,” Brown’s murders and the refusal by Northern States to extradite escaped participants and co-conspirators, resulted in a hardening of Southern attitudes. White Southerners, outnumbered in some communities by Blacks, were understandably fearful of bloody revolts and vengeful reprisals, such as John Brown’s, Nat Turner’s, Denmark Vesey’s, a half dozen others from New York to Louisiana, and the most “successful” genocidal bloodbath in Haiti. Thus, did the previously growing, general Southern appetite for emancipation begin to dramatically wane.
Without getting too deep into all of the complexities and myriad views of slavery, who profited, the tangled interests, whether and how to end it, etc., suffice to say with respect to the specific charge of treason: Slavery was legal from before the beginning, to after the end of the war.
When the war was launched by Lincoln to “preserve the Union”, there were seven Confederate states, all of which permitted slavery, and nine Union states that permitted slavery. There were more Union “slave states” than Confederate “slave states” when the war was started. Five “slave states” joined the Confederacy upon Lincoln’s announcement of war to prevent secession. Four “slave states” remained in the Union. Later, a fifth “slave state,” West Virginia, would secede from the Confederacy and join/re-join the Union.
Slavery would not become illegal in the United States until the ratification of the 13th Amendment, which occurred AFTER the war was over. Ironically, the first state to ratify the Constitution, Delaware, which remained in the Union throughout the war, was the last state to end slavery after ratification of the 13th Amendment.
So, if support of lawful slavery were somehow tantamount to the crime of treason, the slave-holding Union states of New Jersey, Delaware, Maryland, Kentucky and Missouri (claimed by both the Union and the Confederacy), and later, in West Virginia (admitted to the Union during the war as a “slave state”) … and in the slave holding territories of Oklahoma and New Mexico, would have suffered no end of prominent gallows.
At no time, did Lincoln or the Republican Congress declare that ending slavery was an objective of the war. In fact, Lincoln specifically, adamantly said the opposite many times. Lincoln even said in his first inaugural address that he supported adoption of an Amendment to the Constitution, which would ensure that slavery would be perpetually allowed by the Constitution. Known as the “Corwin Amendment,” it was passed by the Republican Congress, but rejected by the Democrats, North and South.
The Republican Congress’s official “War Aims Resolution” did not even mention slavery, much less declare abolition as an objective.
As for the much vaunted and ballyhooed “Emancipation Proclamation,” only those who haven’t carefully read and analyzed it, fantasize that it freed a single slave anywhere.
To put the bizarre allegations of the “slavery = treason” connection away: When the war was started to prevent Southern independence, there more slave states in the USA than in the CSA. The Emancipation Proclamation did not free the slaves, and West Virginia was admitted to the Union as a “slave state” during the war, and after the Emancipation Proclamation was published. Slavery remained legal in the Union, until after the war. Lincoln specifically stated ending slavery was not an objective of the war. And the Republican led U. S. Congress formally omitted any mention that the abolition of slavery was a war aim.
The charge of “treason” against the Confederates is refuted by facts and logic. Neither secession, which was lawful, nor the institution of slavery, which was also lawful, constituted rebellion, insurrection or treason by the lawful authority of the governing U. S. Constitution.
We should not stand quietly by as “know nothings” distort our history, defame our ancestors and mischaracterize the essence of government by consent of the government. Grave harm will fall upon succeeding generations of Americans, regardless of ancestry, if we do.
PLEASE NOTE: This began as an informal email conversation among friends, a couple of whom asked me to clean it up for submission to the esteemed Abbeville Institute. I hope I haven’t bored you to sleep, but if I did, I hope you at least got a good nap from it. All errors of fact and conclusions, are mine alone and if any are noted, I humbly apologize in advance. Frankly, I was writing from memory and did not double check a single source. All unassailable facts and logic, I have merely remembered from the works of many great historians, patriots and thinkers. As I’ve been reading about the events in question for over 60 years, I wish to express my debt and gratitude to far more people than is possible. However, among those still with us, who continue to contribute their hard work, research, clear thinking and inspiration to understanding these important matters, I sincerely thank Clyde Wilson, H. V. (Bo) Traywick, Jr., Philip Leigh, Samuel Mitcham, Jr., Boyd Cathey, Thomas DiLorenzo, Gene Kizer, James and Walter Kennedy and the indefatigable Ann McLean… along with a regiment of like-minded friends and family too numerous to list by name.
This essay is republished with permission from The Abbeville Institute website.
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