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"The Trial That Didn’t Happen" Topic

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Tango01 Supporting Member of TMP13 Feb 2020 9:21 p.m. PST

"Treason is defined by the Constitution in Article 3, section three, as consisting in levying War against the United States or in adhering to their Enemies, giving them Aid and Comfort. Stark as that prescription is, fewer than 30 people have been tried for treason by the federal courts. Two of these—Philip Wigle and John Mitchell—were convicted for their role in the 1794 Whiskey Rebellion but then pardoned by President George Washington. Aaron Burr was tried for treason after a failed conspiracy to set up his own political empire in the Mississippi Valley, but he eluded conviction because, as Chief Justice John Marshall reasoned, "war must actually be levied against the United States." Burr's plot hadn't become more than a plot, and since "conspiracy [to levy war] is not treason," Burr walked free.

But surely the oddest treason trial is one which never took place, that of Robert E. Lee. Surely, if anyone could be said to have levied war against the United States, it must have been the man who for four years inflicted one embarrassing defeat after another on United States troops during the Civil War and almost single-handedly kept the Southern Confederacy alive until its final expiry in 1865. What aggravates Lee's offense is his pre-war career of over 30 years as a U.S. Army officer and the offer of command of the U.S. Army made to him at the outbreak of the Civil War in 1861, which he refused. "What has General Robert Lee done to deserve mercy or forbearance from the people and the authorities of the North?" the Boston Daily Advertiser shrilly demanded after Lee surrendered his dwindling, scarecrow band of rebels at Appomattox Court House on April 9, 1865. Lee was "the bloodiest and guiltiest traitor in all the South," and Congressman George Julian foamed at the outrage of allowing "old General Lee" to roam "up and down the hills and valleys of Virginia," free and unarrested…"
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Bill N13 Feb 2020 9:39 p.m. PST

I would suggest The Lost Indictment of Robert E. Lee by John Reeves.

ScottWashburn Sponsoring Member of TMP14 Feb 2020 5:18 a.m. PST

I think that making treason charges against Southern officers who resigned their commissions in the US Army and then went to their homes before joining the Confederate Army would have been a stretch. However, as I recall there were a couple of junior officers who remained in the US Army for a few months, sending information south about what the north was planning, before they finally fled south. Those could certainly have been tried on treason charges.

bjporter14 Feb 2020 7:37 a.m. PST

Stupid argument, Lee resigned his commission and took up arms only after his state succeeded. If he were to be tried for treason so would every other Southerner.

wpilon14 Feb 2020 11:11 a.m. PST

If he were to be tried for treason so would every other Southerner.

And the problem with that is….?

Tango01 Supporting Member of TMP14 Feb 2020 11:29 a.m. PST



jamemurp14 Feb 2020 2:23 p.m. PST

wpilon: Because the Union was fighting for reunification, not obliteration. Most on both sides were sick of the bloodshed. At the end of the day, whatever they did with Confederate leadership was largely symbolic. Since they repudiated the Confederacy and the country needed to move on, the Feds decided to cut Lee and crew some slack. Whether that was the right call is certainly debatable.
What is interesting is that regardless, the Civil War soundly demonstrated that the Constitution had soundly failed. Yet instead of comprehensively reforming the government, the United States decided an Amendment here or there was good enough. Jim Crow would continue the institutions of racism that precipitated the war and, along with gender disenfranchisement, was the most obvious manifestations of a system that was built on some very undemocratic foundations (some, such as the Senate and Electoral College intentionally so).
The use of force would become a hallmark of these systemic inequalities. Lincoln's actions, though necessary at the time, would form the bedrock for an increasingly centralized, militarized federal government that ramped into hyper militarism and an increasingly "imperial" presidency in the 20th and 21st centuries. Likewise, changes such as the 17th Amendment would have profound effects on the interaction and checks and balances of the federal branches.

Dn Jackson14 Feb 2020 3:53 p.m. PST

"And the problem with that is….?

That by definition it wasn't treason.

donlowry14 Feb 2020 7:32 p.m. PST

Lee could not be prosecuted for treason because of his parole at Appomattox. Jeff Davis, on the other hand …

Wackmole914 Feb 2020 9:07 p.m. PST

John B. Floyd used his position as Secretary of War in President James Buchanan's Cabinet to help the rebellion.
So he was a traitor.

donlowry15 Feb 2020 9:49 a.m. PST

John B. Floyd used his position as Secretary of War in President James Buchanan's Cabinet to help the rebellion.
So he was a traitor

Which is why he skipped out of Fort Donelson rather than surrender with his troops.

wpilon17 Feb 2020 6:05 p.m. PST

Since they repudiated the Confederacy and the country needed to move on, the Feds decided to cut Lee and crew some slack.

But they didn't really repudiate the Confederacy. The ink wasn't even dry on the terms of surrender before they were raising the Klan, functionally repudiating the 14th and 15th Amendments and promulgating all that "Lost Cause" lying male bovine waste product.

George Thomas had their number, but no one listened.

The greatest efforts made by the defeated insurgents since the close of the war have been to promulgate the idea that the cause of liberty, justice, humanity, equality, and all the calendar of the virtues of freedom, suffered violence and wrong when the effort for southern independence failed. This is, of course, intended as a species of political cant, whereby the crime of treason might be covered with a counterfeit varnish of patriotism, so that the precipitators of the rebellion might go down in history hand in hand with the defenders of the government, thus wiping out with their own hands their own stains; a species of self-forgiveness amazing in its effrontery, when it is considered that life and property—justly forfeited by the laws of the country, of war, and of nations, through the magnanimity of the government and people—was not exacted from them.

wpilon17 Feb 2020 6:08 p.m. PST

That by definition it wasn't treason.

You are misinformed. The Constitution says:

Section 3.

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.

What were the adherents of the "Confederacy" doing for four years if not "levying war against the United States"? And there were far more than two witnesses.

MiniPigs17 Feb 2020 9:48 p.m. PST


That's a very interesting quote by George Thomas.

I dont know that the ringleaders were let off because they hadnt committed treason but perhaps there were worries of making martyrs out of them. Before we say, well, they didn't learn their lesson and instead started up the Klan, think that it might have actually been worse.

The war was already an expensive in every way bloodbath and I am not sure the Government wasnt worried that if they were too harsh, the South might rise up again. Northen industry might've profited from the war but I am fairly sure the government was in hock.

In any case, on the Southern side, a lot of innocent people got caught up in that war and I think we might have shown leniency for their sakes. We did as much for Germany and Japan after WW2.

Sean Barnett19 Mar 2020 5:05 p.m. PST

Lee was paroled at Appomatox but he didn't have his citizenship restored until 1975: link

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