The year 2017 has disheartened many of us who grew up in the South. The great compromise, as the late Shelby Foote described the reconciliation after the Civil War, seems to have collapsed.

Foote, who died in 2005 at 88, discussed the compromise in an interview on Book TV, part of CSpan. You can find his interview on You Tube under “Shelby Foote/the great compromise.”

Foote said the sectional divide ended “when the South admitted freely that it’s probably best the Union wasn’t divided. And the North admits the South fought bravely for a cause in which it believed.”

But a few Southern cities – New Orleans, Charlottesville, Houston, Dallas, and San Antonio among them – have torn down statues and other memorials to Southerners whose heroic place in American history had been fixed for 150 years. I am thinking particularly of Generals Robert E. Lee and Stonewall Jackson, both of Virginia, although there are others.

In one of his musings, David Brooks, a Republican columnist for The New York Times, has even referred to General Lee as a traitor to the United States.

In a recent Wall Street Journal, Professor Allen C. Guelzo of Princeton University asserted, “Lee committed treason against the flag and the Constitution.” Wall Street Journal, Sept. 30-October 1, 2017, p. A13.

When I was eight, my father’s two oldest sisters (both school teachers) gave me a pair of books: The Life of Robert E. Lee in Easy Words for the Young and the Life of Stonewall Jackson in Easy Words for the Young. These were elementary-school texts. A year or two later, my mother gave me a copy of the book “America’s Robert E. Lee.” I still have copies, saved for my grandchildren.  I own a leatherbound copy of the  four-volume boxed biography R. E. LEE, by Douglas Southall Freeeman, a winner of the Pulitzer Prize.

No one I know ever called Lee or Jackson a traitor. Do I burn my books? Throw them away? Protect my grandson from them?

Are these great soldiers – Stonewall Jackson, for instance, whom even the North mourned in 1863 — no longer worthy of remembrance?

I do not believe Robert E. Lee or Stonewall Jackson were traitors. These were citizens of Virginia who believed their loyalty lay with their state – not the Federal Union. I have not done enough research to offer a complete defense to a posthumous trial tor treason. But in the legal situation in which they found themselves in 1861, I think they were correct to resign and report for duty in Richmond.

As the war approached in the spring of 1861, Winfield Scott, commanding general of the Army of the United States, offered Colonel Robert E. Lee the command of the Union army. After a night of pacing, Lee refused and instead resigned his commission.

He explained himself in a handwritten letter to General Scott, which you can find in facsimile on the website of Arlington House, operated by the National Park Service. A facsimile of Lee’s handwritten letter appears on the website. Following is the somewhat erroneous transcript the Park Service published of this letter:

Arlington, Washington City, P.O
20 Apr 1861

Lt. Genl Winfield Scott
Commd U.S. Army


Since my interview with you on the 18th Inst: I have felt that I ought not longer to retain any Commission in the Army. I therefore tender my resignation which I request you will recommend for acceptance. It would have been presented at once but for the struggle it has cost me to separate myself from a Service to which I have divoted [sic] all the best years of my life, & all the ability I possessed. During the whole of that time, more than a quarter of a century, I have experienced nothing but kindness from my superiors & the most Cordial friendships from any Comrades. To no one Genl have I been as much indebted as to yourself for kindness & Consideration & it has always been my ardent desire to merit your approbation. I shall carry with me, to the grave the most grateful recollections of your kind Consideration, & your name & fame will always be dear to me. Save in the defense of my native state shall I ever again draw my sword. Be pleased to accept any more [illegible] wishes for the Continuance of your happiness & prosperity & believe me

Most truly yours
R E Lee

This transcription contains a few glitches. For example, the phrase “any more [illegible]” wishes in the final sentence reads plainly in Lee’s handwriting as “my most earnest” wishes for Scott’s happiness & prosperity.

The crucial sentence, however, Lee inserted in the margin:

Save in the defense of my native state shall I ever again draw my sword.”

This also appears to be a poor transliteration.  I cannot make out that sentence in the online copy of the original. See

I think Lee said something different.  Clifford Dowdey’s edition of Lee’s papers quotes the sentence:

Save in the defense of my native State, I never desire again to draw my sword.”

That is certainly the sense in which Lee’s decision has presented itself to history.

Was Lee’s statement merely affection for the people of Virginia where Lee was born and a refusal to make war on them? I do not think so. I think Lee found himself the citizen of a newly sovereign Virginia.

How could that have happened? The talking heads have overlooked Virginia’s legal status in 1861.

1. Virginia reserved the right to leave the Union in 1788.

The Virginia ratifying convention that accepted the Constitution of the United States met in June 1788. The debate lasted 25 days.

A large number of delegates opposed ratification – 89 voted for and 79 opposed. Patrick Henry led the opponents. (See “Virginia Ratifying Convention,” /

Those Pannills descended from the union of Col. William Pannill of Petersburg and Eliza Binns Jones might note that her grandfather (and our forebear) Col. John “Hellcat” Jones represented Brunswick County in the Virginia convention (The other Brunswick delegate was Binns Jones). Colonel Jones also served as president of the Virginia Senate.

Both of the Joneses voted No to the Constitution.

The resolution that passed included an express right in the State of Virginia to “resume” the “powers” granted to the Federal Constitution by the “People of Virginia.”

We the Delegates of the People of Virginia . . . Do in the name and in behalf of the People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression . . . .

I read this as a right of secession from the United States. With such a close vote, passage may have required this proviso.

2. Virginia expressly exercised its reserved right to resume  full sovereignty in 1861.

I have read that Virginia opposed secession until April 15, 1861. On that day President Lincoln called for 75,000 volunteers following the bombardment of Fort Sumter. The purpose, his proclamation read, was “to repossess the forts, places, and property which have been seized from the Union. . . .”

Lincoln’s call to arms turned Virginians around. People in the so-called Upper South read the proclamation as calling for an invasion of the Lower South, which infuriated them.

On April 17, two days later, the Virginia convention passed “AN ORDINANCE TO REPEAL THE RATIFICATION OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA BY THE STATE OF VIRGINIA, AND TO RESUME ALL THE RIGHTS AND POWERS GRANTED UNDER SAID CONSTITUTION.” The 1861 ordinance “repealed and abrogated” the Virginia ordinance of 1788.

The 1861 ordinance “dissolved” the Union of Virginia with the other states and declared that “the State of Virginia is in the full possession and exercise of all the rights of sovereignty which belong and appertain to a free and independent State.”

Sovereignty certainly included the creation of armed forces.

Colonel Lee met with General Scott on April 18, the day after the repeal. By then — and certainly by the 20th, when Lee wrote to General Scott — Lee had had time to learn of Virginia’s action.

Virginia had been an independent republic before adopting the Constitution. On the face of this ordinance, Virginia had resumed its place as an independent republic.

Lee was an officer in the Army of what suddenly became a foreign government under the  Virginia ordinances of repeal.   I think Lee’s statement that he would not again draw his sword except in defense of Virginia showed he believed he was no longer a citizen of the United States.

If Lee had kept his Army commission under the United States, he would have been a traitor indeed — but to Virginia. Lee’s watchword was “duty.” So I think he felt himself obligated to resign.

3. The Virginia ordinance of repeal offers a strong defense to a charge of treason by the United States.

Had the United States tried Lee for treason in 1865, his counsel would have had a powerful argument that he had obeyed the lawful commands of his republic of Virginia, sovereign once again. Virginia had expressly reserved the power to leave the Union in 1788. Virginia had exercised that power on April 17. Lee was entitled to honor the withdrawal of Virginia.

At Appomattox, Lee is said to have believed that Grant would arrest him upon his surrender, so he wore his best uniform and his ceremonial sword to the meeting at the McLean House. Grant declined to accept his sword. Instead, Grant merely required that Lee and all his soldiers sign an oath of allegiance and return to their homes. Grant even furnished Lee a military escort back to Richmond.

The United States did arrest Jefferson Davis and imprisoned him for a time. There were demands in the North that the Federal Government try Davis as well as Lee for treason. But the United States never tried Davis or anyone else in the Confederate government for treason.

I think Lincoln and his government knew they had a questionable case, at best, of treason. At any rate, the Union never pressed treason charges.

That may also explain why Grant proffered generous terms of surrender at Appomattox: Surely Lincoln had decided for Grant what terms to offer.

Lincoln’s thinking is supposition on my part. It would make interesting research.

But the claim of treason by Lee does not fit the facts of Virginia’s strong claim to sovereignty in 1861.