Did General Lee Violate his Oath in Siding with the Confederacy?
By
Rev. Dr. J.L.M. Curry.

        The New York Independent of the 6th of June has a letter from Berlin, written by Dr. Joseph P. Thompson, from which I make the following extract:

        During the American war the sympathies of the German people were strongly on the side of the North. They showed their good feeling toward the Union and their confidence in its success by subscribing largely for United States bonds, at a most critical period both for our arms and our finances -- a confidence which Congress has abused in a most humiliating way by providing for cheating the bondholders out of eight cents on the dollar. Thus do we ourselves efface the glories of the war and of emancipation.
        But while on the question of slavery and the Union the German people were with us, yet from a professional point of view military men in Germany rated the Southern generals, and especially Lee, above the generals of the Union. They do not seem to have mastered the grand strategy of Grant and Sherman, by which Richmond was at last shut up in a vice; the energy with which Grant drove Lee back to Richmond; the patience with which, having shut Lee up in his capital, he held him there, until Sherman's arrival at Charleston gave the signal for taking Richmond, without giving Lee a single chance of escape.
        The other day, seeing it announced that Captain Mangold, instructor in the Royal Academy of Artillerists and Engineers, in Berlin, would give a lecture on General Lee, I was curious to hear how a German officer would picture the military leader of the Confederacy. Captain Mangold has been a conscientious student of the American war in its military bearings, and so well did he perform this task, with so much discrimination, candor, fairness, that I felt constrained to say to the lecturer: "Were I a Southerner, I could not ask for more; and as a Unionist I should not have been satisfied with less." Surely, all Americans are now ready to accord to Lee his just meed of praise for brave, honorable and skillful soldiership in a mistaken cause.
        The lecture was a chapter from a book which Captain Mangold is writing upon the civil war in the United States, and was limited to a sketch of the personal character and the military career of General Lee. In the limits of an hour he could not give details of battles, and, indeed, he only sketched the Peninsula campaign. Briefly describing Lee's birth, family, education and early career in the United States army, and the relations of Virginia to the Union, the lecturer entered directly upon the act of secession, by which Lee felt himself drawn with his State -- though with reluctance and even protest -- into the vortex of civil war. His skill as an engineer in planning the fortifications of Richmond; his manly modesty when called to the supreme command; his tact in turning the military vanity of Jefferson Davis to the advantage of the army; the energy and secrecy with which he combined his forces so as to out- general McClellan, and the vigorous strategy with which he drove him from the Peninsula; and, when times of disaster came, his fertility in gathering resources, his wisdom in harmonizing the civil with the military authorities, his power of self command, his influence over officers and men, his patient endurance of ill fortune, his desperate struggle against hope, and, at last, his dignified resign to defeat -- these all were pictured and illustrated as exhibiting military genius of a high order and entitling Lee to a place in history among the first generals of the world.
        Lee's failure in the offensive was imputed to the intermeddling of Davis with the army; but two defects as a general were ascribed to him personally -- an indifference to discipline, and a too kindly consideration for incompetent officers, both resulting from excess of good nature. Captain Mangold was persuaded also that, from first to last, Lee's heart was not in the cause of secession. This was shown by the letter in which he threw up his commission in the United States army, and by his refusal to make himself military dictator when it became evident that Davis was ruining the Confederacy and the whole South was ready to transfer its allegiance to Lee.
        One point in Lee's conduct Captain Mangold could not reconcile with the apparent sincerity of his character, nor with the code of military ethics -- the violation of his oath as a United States officer. To a Prussian officer the violation of an oath is a crime so damnable as to be inconceivable. Captain Mangold stated fairly the reasons by which Lee justified his action in the trying dilemma in which he was placed; but he could find no ground upon which a Prussian officer could justify or even extenuate such a breach of honor. This must, indeed, remain a melancholy stain upon a name otherwise attested as noble and good. But the North should remember that Lee acted only for himself when secession forced the issue, and did not seek to organize a conspiracy against the government he had sworn to defend. One of the saddest comments on secession is the perversion it gave to such a character. Let the warning live with the memory of Lee!

        The prejudice and ignorance exhibited in the above quotation are very singular, especially as coming from an accomplished scholar who writes books to acquaint the European mind with American institutions. The ignorance of foreigners of the geography of the country has become a standing jest. That they should not understand our peculiar political institutions, our complex and novel systems of governments, wheels within wheels, is less strange. This matter of breach of faith, so quietly assumed in this accusation by Captain Mangold and Dr. Thompson, turns entirely upon the character of our governments. To vindicate the South in the late civil war is far from my purpose, and the columns of the Independent or of other Northern journals would not be open to me if I were to make such an attempt. The conquered seldom or never write the accepted histories. The arbitrament of war has settled adversely the question of secession as a peaceful or feasible remedy for wrongs, real or imaginary.
        In passing judgment upon the personal faith and honor of General Lee and his associates, as affected by secession, the historian or critic or moralist must be careful to view things from the standpoint of 1860 and not that of 1878. The truth is as melancholy as it is undeniable, that whatever theory of States rights or of constitutional limitations may have been maintainable in 1860, the practice and the accepted theory of late years make the constitution a rope of sand, consolidation a political fact and the general government an irresponsible centralism. The amendments to the constitution since 1860 are to be excluded in all debates about the character of our Federal system prior to the war.
        "Codes of military ethics" have nothing to do with the obligatoriness of General Lee's oath as an officer of the army. They are as irrelevant as would be a citation from the Declaration of Independence on a matter of constitutional interpretation. No one disputes that General Lee in 1861 was an officer of the United States army, and as such had taken the usual oaths. It is alike undisputed that he was a native of Virginia, claimed citizenship and residence in this State. Virginia, the State of his nativity and citizenship, seceded from the union of the States, and in her. withdrawal claimed the allegiance and loyalty of her sons. The basal question, lying at the root of this discussion and determining it absolutely, is, had a State in 1861 the right to secede? If the answer be in the affirmative, then the allegiance of her citizens, ipso facto, ceased to be due, if it had ever belonged to the Union or Federal government.
        Secession may have been unwise, rash, inexcusable, suicidal. Let all that for the nonce be conceded. When a sovereign State acted, the decision was final so far as her citizens were concerned. Code of military ethics is an irrelevant suggestion. Did the oath of Lee as an officer of the United States bind him as against the sovereign command of his State? That turns on the right of the State to secede. If Virginia possessed that right nothing but expatriation could release her citizens from the obligation to follow her fortunes. Prior to the late amendments it is extremely doubtful whether such a thing as citizenship in the United States, apart from citizenship in a particular State, had any existence. Certainly General Lee was a citizen of Virginia, was a citizen of the United States only by virtue of being a citizen of Virginia, and no one who understands the A, B, C's of our government would pretend that to be an officer of the United States operated as an extinguishment of State citizenship, absolved from its obligations or debarred from its privileges and immunities.
        A "Prussian officer" may not understand our Federal system, may fail to comprehend the simple truth that the very idea of the people of the United States, as constituting a single political community, is the veriest delusion, but every moderately well informed American ought to know that the Union as a government sprang from the people of the several States, acting in their separate and sovereign character as distinct political communities. Its origin every Historical fact conclusively establishes not to be due to the people of the States forming one aggregate community. Now, whether the States, as parties to the constitution, had a right to judge of the infractions of the instrument and of the mode and measure of redress, and to protect their citizens against encroachments or imminent peril, or whether they delegated to the general' government the final and exclusive right to determine upon the kind and extent of the delegated and reserved powers, are questions which originated in the infancy of our of government. Nay, like the struggle between Jacob and Esau in the womb of Rebecca, presaging two manner of peoples, the conflict began in the convention that framed the constitution and in the separate State conventions which ratified it, and was the "great divide" betwixt the parties of the early and better days of the Republic. The States rights' men or Republicans, as contradistinguished from the Federalists, held that it was futile to attempt to distinguish "between a government of unlimited powers and one professedly of limited, but with an unlimited right to determine the extent of its powers." The general government being the creature of the States could not, by possibility, have any original powers, and beyond its defined sphere its limitations could have no more power than if it did not exist at all. Mr. Calhoun aphoristically said, "a State is, at all times, so long as its proper position is maintained, both in and out of the Union; in for all constitutional purposes, and out for all others; in to the extent of the delegated powers, and out to that of the reserved." "The boundary between the reserved and the delegated powers marks the limits of the Union. The States are united to the extent of the latter, and separated beyond that limit."
        I beg to repeat that I am not arguing but only stating the position of the Secessionists. It follows from the premises of the Secessionists (and the argument must turn on the premises which foreigners seem unable to understand) that the relation of the citizen to the Federal government was through the State; that the Union was a union of political communities and not of individual persons; that the States, as communities in ratifying the constitution, entered the Federal government only quoad hoc, and that whether a power exercised by the government was within its constitutional competency was to be judged by the creator and not by the creature. The State declared for her citizens the extent of their obligations to the general government, and such declaration was binding on the citizen -- code of military ethics, official oaths, acts of Congress, proclamations of the President, to the contrary notwithstanding. All this of course depends on whether the right to secede, to control citizens, was delegated or transferred: and that brings up the underlying question, who is to judge whether the transfer has been made, the general government through some of its departments, or the States who were the grantors of all the powers possessed by the general government. If the States rights theory be the sound one, then General Lee violated no oath, committed no breach of trust in obeying the commands of Virginia, nor did any citizen of the South in siding with his seceded State.
        Let it be borne in mind that this question of paramount allegiance of citizens, of the right of a State to decide upon infractions of the constitution, or to anticipate perilous possibilities, had never been decided prior to the war. It was an open question, hotly contested, and the equal honesty of the disputants must be presumed. How far the ratio regium, the wager of battle, the avoirdupois of numbers, can determine a question of conscience or law, need not now be discussed. Secession is now as practically dead as slavery, but it was too unsettled in 1860 to justify these efforts to pillory as a perjured traitor a veritable chevalier Bayard, sans peur et sans reproche. Whatever foreigners or prejudiced Americans may say or think to the reverse, when the passions and prejudices of the war shall have subsided, and the historic muse shall record an impartial verdict, the eulogy pronounced by Brougham on another illustrious Southerner will be equally applicable to Lee: "It will be the duty of the historian and the sage in all ages to let no occasion pass of commemorating this illustrious man; and until time shall be no more will a test of the progress which our race has made in wisdom and in virtue be derived from the veneration paid to the immortal name of Washington."

J. L. M. Curry

Source:  Southern Historical Society Papers, Vol. VI. Richmond, Va, August, 1878. No. 2

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