Why Robert E. Lee wasn’t hanged as a traitor after the Civil War - We Are The Mighty
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Why Robert E. Lee wasn’t hanged as a traitor after the Civil War

The United States Constitution defines treason as “levying war against them [the U.S. government], or in adhering to their Enemies, giving them Aid and Comfort.” Under this definition, every Confederate soldier and leader is a traitor, no matter what their reasons for doing so may have been.

Throughout the Civil War, President Abraham Lincoln treated rebels with an incredible degree of leniency, issuing pardons for 128 Confederates for everything from holding office in the Confederate States to war-related offenses and, of course, treason. But President Lincoln wasn’t alive when it came time for most of the rebel leaders to pay the price for their perfidy. 

The United States Congress, unlike Lincoln and full of Republicans after the war, was out for justice and wanted to see retribution for the rebel leaders, especially Confederate President Jefferson Davis and Robert E. Lee. For most rebels, they would never get the chance.

Why Robert E. Lee wasn’t hanged as a traitor after the Civil War
Portrait of Gen. Robert E. Lee, officer of the Confederate Army. (Library of Congress)

President Andrew Johnson, taking office after Lincoln’s assassination, granted a wide amnesty to most rebel soldiers, officers, and officials as long as they took an oath of allegiance. There were more than a dozen exceptions among them, including Davis and Lee. Federal investigators tried everything they could to pin war crimes and other hanging offenses on the two leaders, to no avail, but the specter of treason still hung over both men. 

Confederate Gen. Robert E. Lee was arguably the most visible rebel leader during the Civil War. He is certainly the most enduring and recognizable, more than 150 years later. It makes sense that he would have been the target of opportunity, Congress’ chance to make an example of rebels and traitors in the postwar period. 

Lee would not only avoid a trial and execution, he would go on to spend much of the rest of his life as the president of Washington College (now called Washington and Lee University). Even at the signing of the surrender documents at Appomattox Court House, Lee was certain he would be tried and hanged after the war. 

Why Robert E. Lee wasn’t hanged as a traitor after the Civil War
General Robert E. Lee mounted on Traveller, his famous “war horse”, monochrome photograph by Michael Miley, 1866.

His punishment for leading the Army of Northern Virginia against the Union would be the loss of his right to vote. His traditional home in Arlington, Virginia was seized by the Federal government and turned into Arlington National Cemetery. His family would be compensated later, but Lee himself would be long dead before it happened.  

Northern newspapers began a nationwide call for Lee to be tried for his crimes. 

Lee and a number of other Confederate officers were indicted for treason on June 7, 1865. A grand jury decided that there was enough evidence to convict Lee and his fellow rebels for high treason against the United States, a punishment that carried a possible death sentence. At the time, President Johnson was ready to throw the book at the former general. 

Then, a visitor to the White House convinced the president that hanging Robert E. Lee would be a violation of the terms of surrender Lee agreed to at Appomattox earlier that year, terms agreed upon by President Lincoln. Lee’s surrender effectively ended the war and the visitor wanted to make sure the Federal government stood by its word. 

Why Robert E. Lee wasn’t hanged as a traitor after the Civil War
Confederate General Robert E. Lee in May 1869.

The man who visited the White House to save Robert E. Lee’s life that day was Gen. Ulysses S. Grant. The surrender terms that Lee agreed to wasn’t just the Federal government’s word, it was his word too. Grant believed that Lee escaping punishment would be the best way to restore good feelings in the south. 

It wasn’t easy. Johnson was fully resisting the idea of granting Lee clemency for his actions. This infuriated Grant who loudly informed the president that Lee would never have surrendered if he and his men weren’t guaranteed the ability to go home in peace. He also told Johnson that he would never arrest Lee as long as the former Confederate stuck to the terms of his agreement. 

Then Grant told Johnson he would resign his post as commander of the Army before he executed any order to arrest Lee or anyone else, as long as they obeyed the law. Johnson backed down and Lee avoided the gallows.

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