The “E” Is For “Enigma”: How Should We Remember Robert E. Lee? Part 2

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[This is the second part of a series of blog posts about Robert E. Lee and what became of his stripped status as an American citizen after the Civil War. You can jump to the first post here.]

U.S. citizenship was only a vague legal idea prior to 1868. What I mean by that is the federal government had never previously defined who is a U.S. citizen. It was not the letter of the supreme law of the land, for example, that someone born in America was a U.S. citizen. The matter of who could vote or hold office was largely determined by the states, with only a few basic parameters set by the Constitution. And of course enfranchisement and political activity was excluded to women and African-Americans.

So when one says that Lee was “stripped of his American citizenship” it sounds far more dramatic than it really is.

Lee and other ex-confederates, for example, still enjoyed the protections of the law over their persons and property. They maintained their freedom of speech, freedom of movement, the right to bear arms, and all the other protections enshrined in the Bill of Rights. They still had the right to sue in court and petition their government for redress of grievances. They were not harassed for papers, nor did they have to report their whereabouts to federal or local authorities. Neither Lee nor any other Confederate could have been summarily banished or deported from the United States, as we might do with an individual without citizenship status today.

Still, of course, the removal of the power to vote, hold office, and serve in the militia is a serious business. That’s something that, today, we reserve for convicted felons and the insane.

These punitive legal consequences did not affect most members and supporters of the rebellion for very long, however.

For one thing, it seems several ex-Confederates did, despite the ban, manage to get elected or appointed to high office. District attorneys, by 1870, seem to have been investigating these cases and preparing to attempt to use the courts to remove such people from office. Those proceedings seem to have moved forward at a glacial pace. The whole business sounds part and parcel of the confusion and incompetence of Reconstruction Era policies.

So the 14th Amendment’s disqualification provisions apparently were quite impotent.

Then, in 1872 — considerably less than a decade after the war’s close — Congress took the step of passing an Amnesty Act. The Amnesty Act restored the ability to vote and hold office to almost every ex-Confederate. And this was signed by no less than former Union General Ulysses S. Grant himself, during his 1st presidential term! So anyone who claims the South was thoroughly under the thumb of carpetbaggers and backed up against a wall at bayonet point is on even shakier ground.

The 1872 Amnesty Act excepted only an elite class of former CSA figures from reenfranchisement. It held out on those whose actions prior to and during the Civil War were considered to be particularly obnoxious by the federal government.

Therefore, the 1872 exclusion included sitting members of each branch of the U.S. government —such as Congressmen, Senators, federal judges, and ambassadors — who had resigned their positions and sided with the Confederacy.

The exclusion also applied to members of the U.S. military who had renounced or abandoned their duty — and reneged on their sworn oath to “bear true allegiance to the United States of America, and to serve them honestly and faithfully, against all their enemies or opposers whatsoever.” So Robert E. Lee, who had not only been a Colonel in the U.S. Army but who had also been educated at West Point at the U.S. government’s expense, would not have received any relief from this new law.

The 1872 Amnesty Act paved the way for men like the ardently racist Wade Hampton III to return to power in the South on a tide of vicious campaign violence and murder. Such politicians commenced the process known as “Redemption:” the end of Reconstruction policies and the restitution of the Democratic Party in the South.

Finally, in 1898, another Amnesty Act removed the very last barriers to any ex-Confederate voting or holding office. This was largely symbolic: so much so that I haven’t even been able to find a single newspaper from June of 1898 that reported the story. The 1898 amnesty would have applied to very few people. Both legislation and the passing of years had whittled the still disenfranchised down to a small pool of potential voters and politicians indeed. (I’d be curious to know who some of the exceptions were. Anybody have an ancestor whom they know for a fact couldn’t vote for president during the yawning gulf between Abraham Lincoln’s reelection and 1904’s thrilling Theodore Roosevelt vs. Alton B. Parker matchup?)

So Robert E. Lee would have had his full political capabilities restored to him in 1898, at the age of 91.

But here’s the problem.

The storied Confederate general died on October 12, 1870.

 

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