Allen Guelzo is writing a biography of Robert E. Lee. This is the first thing I have seen him publish on the topic. Here are the main points of Guelzo’s argument in “Did Robert E. Lee Commit Treason?” at Athenaeum Review:
- “The Constitution’s definition of treason is a very narrow one
- “Lee would have to be tried in the jurisdiction where the treason occurred
- “The Chief Justice of the Supreme Court, Salmon P. Chase, would not co-operate”
- “Lee’s own self defense.”
And Guelzo concludes:
In the end, one has to say, purely on the merits, that Lee did indeed commit treason, as defined by the Constitution. But the plausibility of his defense introduces hesitations and mitigations which no jury in 1865—even Underwood’s “packed jury”—could brush by easily. That, combined with the reluctance of Ulysses Grant and Salmon Chase to countenance a treason trial for Lee, makes it extremely unlikely that a guilty verdict would ever have been reached. But the jury which might have tried him was never called into being, and without a trial by a jury of his peers, not even the most acute of historical observers is really free to pass judgment on the crime of Robert E. Lee. Yet the question remains far from academic. In the cosmopolitan atmosphere of global communications and cultural fluidity, the notion of treason has acquired an antique feel, not unlike medieval notions of honor or feudal loyalty. To the extent that global communications, mass migration, and instant universal commerce render national boundaries more and more meaningless, can modern individuals be held to the standard of absolute loyalty to a single political entity? “Citizenship does not free a man from the burdens of moral reasoning,” writes legal philosopher A. John Simmons. “The citizen’s job” is not to absorb obligations to the nation-state and “to blithely discharge it in his haste to avoid the responsibility of weighing it against competing moral claims on his action. For surely a nation composed of such ‘dutiful citizens’ would be the cruellest sort of trap for the poor, the oppressed, and the alienated.” Moreover, the assertion of the existence of international standards of human rights runs in direct conflict with how states regard, and are allowed to regard, the disloyal behavior of their nationals. Nor is this merely an exercise of left-internationalism; for many libertarians, treason loses the taint of moral betrayal and becomes a mechanism by which an all-powerful State prevents “dangers to its own contentment.” As it is, the Constitutional definition itself is so narrow that convictions for what might be considered treasonable offenses are prosecuted instead under the 1917 Espionage Act. But to deny that treason can occur, or that citizens can be held culpable for it, is to deny that communities can suffer betrayal to the point where their very existence is jeopardized.