Lee, Davis, Oaths, and Pardons

Lee amnesty oathOne of the favorite topics discussed by people who are fascinated by Robert E. Lee is whether he committed treason against the United States. After all, Lee in 1861 had reaffirmed his oath of allegiance to the United States when he accepted his commission as colonel, and when he wavered as to what to do in April 1861, it was Winfield Scott who reminded him that under the circumstances he needed to resign his commission … and Lee did not wait to learn that the resignation had been accepted before embarking on his career as a Confederate.

Lee paroleFour years later, when Robert E. Lee surrendered at Appomattox, he signed a parole, recognizing his status as a prisoner of war. Soon after his return to Richmond, and days after President Andrew Johnson issued his May 29,1865, proclamation setting forth his policy of pardon and amnesty, Lee sought clarification of his status. He had learned that he had been among a group of Confederate leaders indicted for treason by a grand jury meeting in Norfolk, Virginia, under Judge John C. Underwood.

On June 13, 1865, Lee wrote to Grant, outlining the situation. He had sought to comply with Johnson’s proclamation, but he had also learned about the indictment. What was his status? Was he still protected by the terms he signed at Appomattox? After all, he was still a prisoner of war (Johnson had not declared the war at an end). He was willing to stand trial, but if he was protected under the terms of the surrender agreement, then he wanted to file for pardon under the new proclamation … which included signing a loyalty oath (called an amnesty oath).

Grant endorsed the pardon application. He also told Lee that in his opinion the terms of the surrender remained intact. To Stanton he asked that the grand jury indictment be quashed. It would be bad policy, he claimed, to prosecute for treason those people who had complied with the terms of the surrender.

Andrew Johnson was not willing to grant the general his wish. The two men discussed the matter, and the president gave in after Grant threatened to resign his commission.

Eventually Lee signed an amnesty oath dated October 2, 1865, that served as a loyalty oath. It was not acted upon. Only when Johnson issued another proclamation on Christmas Day, 1868, was Lee included in an amnesty, although President Gerald R. Ford pardoned him in 1975.

Jefferson Davis never sought a presidential pardon, and he was excluded from presidential amnesty proclamations. He did not sign a loyalty oath. Johnson wanted to prosecute him for treason: what saved Davis was not any belief that secession was constitutional, but that the process to obtain a conviction for treason in a civil trial was fraught with problems. President Jimmy Carter eventually pardoned Davis.

It’s Lee’s oath that interests me the most. He was still determined to honor Confederate sacrifice and fighting spirit: thus his interest in writing a history of the Army of Northern Virginia. Nor do I think that he convinced himself that the Confederacy was wrong. But he did consider it as dead, and he chose to reestablish his United States citizenship.

Davis chose a different path. He believed he’d done nothing wrong, so he had no need to seek a pardon or sign an amnesty oath. Nor did he benefit from Grant’s intervention (and he never accepted the terms offered at Appomattox).

It remains a nice question as to which path was more admirable in the eyes of those who celebrate these two men. But it is clearly Davis and not Lee who should be honored by southern nationalists/separatists, because Lee accepted defeat (however much it hurt him) and reaffirmed his desire to be a member of the citizenry of the United States.

22 thoughts on “Lee, Davis, Oaths, and Pardons

  1. Rob Baker August 16, 2013 / 5:50 am

    I wonder if you might indulge is some counterfactual Brooks. Why do you think Lee’s Presidential Pardon was lost for so long?

    • Brooks D. Simpson August 16, 2013 / 10:29 pm

      Simple … because it was misfiled. Filing systems are only as good as the people who use them. Misfile something, and it may be lost forever.

      • Rob Baker August 17, 2013 / 10:05 am

        Awww Brooks. You’re no fun.

      • SF Walker August 17, 2013 / 5:34 pm

        @Brooks That’s a fact (about filing systems and “operator error”). The Internal Revenue stamp on Lee’s amnesty oath should be the first clue that we are talking about civil service employees here 🙂

  2. Bob Huddleston August 16, 2013 / 9:55 am

    Let me correct one small point.

    Lieutenant Colonel Robert E. Lee, 2nd Cavalry, was promoted by seniority to colonel, 1st Cavalry, vice Col. Edwin Sumner, who was promoted to brigadier general to replace Daniel Twiggs, dismissed for surrendering US forces in Texas. Col. Lee accepted the promotion on March 30 to rank from March 16. The law required an officer to file an oath of allegiance when he accepted a promotion. Lee’s 201 File contains an oath for his 1855 promotion to lieutenant colonel, but there is no oath for the 1861 promotion to colonel. Did someone remove it when he became a Rebel or did he fail to take the oath?

    Source: 201 File, Old Records Division, Adjutant General’s Office, 1917- , RG 407, National Archives Microfilm M-2063, Military Service Records of Robert E. Lee

    • Brooks D. Simpson August 16, 2013 / 10:28 pm

      As you say, “Col. Lee accepted the promotion on March 30 to rank from March 16. The law required an officer to file an oath of allegiance when he accepted a promotion.” Are you saying Lee failed to comply with regulations?

      When Lee resigned, he resigned his commission as colonel. No one ruled that the commission was invalid because of the absence of a signed oath. That would have been on his record as well if that were the case.

      This is a story of lost paperwork, after all.

  3. John Randolph August 16, 2013 / 12:02 pm

    While I can’t speak to the question as to which path is more admirable in the eyes of those who support the Southern cause, i think one has to give Lee some credit for ultimately recognizing the futility of the struggle and having the moral courage to end it rather than fleeing to the hills and continuing to fight in some misguided attempt to avoid the shame of surrender. I think Davis would have continued to spill blood and inflict misery for no other reason than to say that he never gave in. Although he should have ended it much sooner, Lee finally acted in the realization thar the continued suffering of his own soldiers was totally in vain and could not be justified for any reason.

  4. Michael Confoy August 16, 2013 / 10:15 pm

    No, it should be Mosby and Longstreet whom are honored for telling the south to get a life.

    • Mark August 22, 2013 / 2:03 pm

      Yes I agree. I’ve always been amazed that people give Lee so much credit for not fighting a guerrilla war. And though he did accept defeat, I do think we see how better men really accepted defeat. People strain so hard to find good in him that they’ll grasp at anything. His personal life was positively creepy when it comes to character. He is a marble man.

  5. Nancy Winkler August 17, 2013 / 8:48 am

    Lee didn’t have a choice. He would have cut his way out except for all those blue coats surrounding him.

    • Brooks D. Simpson August 17, 2013 / 3:48 pm

      But he had a choice as to whether to sign that oath and apply for pardon. Why deny that?

      • Nancy Winkler August 17, 2013 / 9:13 pm

        I was thinking of the situation right before the surrender at Appomattox. You’re right, afterwards he could have tried to form another army and resisted via guerrilla tactics. But I think the bulk of southerners were sick and tired of war and would not have supported him for long.

  6. TF Smith August 18, 2013 / 11:50 am

    I think Lee was too much of an aristocrat and also to old to have led a guerilla war from the Appalachians. This is, after all, someone who was used to a certain standard of comfort, even in wartime. The “dress uniform” bit at Appomattox, for example.

    Mosby or Quantrill, even Forrest, I can see retreating back up into the hollers – Lee, not so much.

    • Michael Confoy August 18, 2013 / 7:36 pm

      Not Mosby. Mosby became a Republican in the Grant administration.

      • TF Smith August 19, 2013 / 8:18 am

        True, although Mosby’s allegiance came a little after the fact…

  7. SF Walker August 19, 2013 / 12:12 am

    I wonder how long a Confederate army fighting a guerilla war in the Appalachians would have been able to subsist itself, given the fact that Unionist sentiment in the mountains was strong.

    • Jimmy Dick August 19, 2013 / 6:50 am

      The idea of Lee as a guerrilla is pure fantasy. The men were deserting rapidly. They had no food. They were low on ammunition. They had few horses. Like you just mentioned, the residents of the Appalachians were for the most part Unionists. If not they had their own objections to the way the Tidewater types had treated them for decades. There wasn’t going to be much of a guerrilla war. Look out in Missouri. There was the place where one had raged for four years. In 1865 that came to an end and the ones that “held out” (if that’s what you want to call it) revealed themselves for what they were, criminals.

      For a successful guerrilla operation to work it absolutely must have the support of the people (and a source of military supply. No foreign nation was going to supply CSA guerrillas). Look at how CSA deserters had some bands of what could be similar to guerrillas working out of the mountains. They were a nuisance, but they were unable to do much other than raid for supplied for themselves. Now consider what would happen with a guerrilla force needing food. They would be forced to take it from the people and that would wipe out their popular support.

      No, there was never a chance that a guerrilla war would work for the ANV. I think Lee recognized this as well.

      • SF Walker August 30, 2013 / 4:25 pm

        I think you’re right. In fact, Lee should have surrendered upon the capture of Fort Fisher two months before, which nailed shut the Confederacy’s last door to the outside world and basically checkmated the ANV.

  8. SF Walker August 19, 2013 / 12:20 am

    What interests me is the fact that Lee, as general-in-chief of all Confederate armies, technically had the authority to surrender ALL of those forces at Appomattox, not just the Army of Northern Virginia. I believe he was unwilling to do this without first conferring with Davis, who was on his way to Danville at the time and not able to be contacted.

    • TF Smith August 19, 2013 / 8:19 am

      Good points. The numbers in “Lincoln’s Loyalists” certainly bear that out.

  9. Mark DC (@FilmCriticOne) August 22, 2013 / 5:31 pm

    Jefferson Davis was clearly guilty of treason, as a seamstress in his house, Keckely, reported Davis wife, Varina, told her over CHristmas of 1860 that Jefferson was meeting with numerous other Southern soldiers about a military coup should Lincoln actually show up to take office.

    That is treason, right there, unless Keckley was lying in her autobiography. She was mentioning this not so much about Jefferson Davis, as about her relationship with Varina. Varina was trying to talk her into going to the South with her, for a while, until the military coup was over. Ms Keckely wisely decided not to to the deep south, with anyone.

    Was Lee aware of Davis’s plan? If so, that would be treason for Lee too. Upon hearing such plans, Lee would be obligated to resign immediately, or arrest the person speaking of a military coup. You may know that Lee’s oath was to the President personally, and emphatically.

    Lee also took another oath, when he received his promotion to full colonel, a promotion for Lincoln, in April, It’s defies logic to think Davis did not check with Lee, on which side he would be on, in case of a coup.

    Still, there is no smoking gun as to Lee’s knowledge of Davis plan for a possible coup.

  10. Hosea Meyer November 4, 2015 / 1:11 pm


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