THE LOST INDICTMENT OF ROBERT E. LEE

The end came quickly for Robert E. Lee’s Army of Northern Virginia after it abandoned its trenches in front of Richmond and Petersburg, Virginia, on April 2, 1865. Exhausted and starving, many of the soldiers began deserting in even greater numbers. Just one short week prior to its ultimate surrender on April 9, the army would disintegrate, losing half of its total manpower.¹

General Lee’s army had been under siege for ten months as it engaged in demoralizing trench warfare with northern soldiers under General Ulysses S. Grant. The unceasing pressure by Union troops resulted in shortages of men, food, and horses for the Confederates. The horses had become so weak, Lee noted in a report, that they could no longer haul the wagon trains over muddy roads.² With additional Federal troops under General William Tecumseh Sherman heading north to link up with Grant, Lee could wait no longer, and he decided to leave his fortifications. Lee’s plan was to head south to combine with the Army of Tennessee under Major General Joseph Johnston in North Carolina. Hopefully, he’d be able to outrun the pursuit of Grant’s army.

Today, historians estimate that Lee had about sixty thousand troops when he left his trenches. He would be opposed during that final week by about eighty thousand soldiers under Grant. On the day he surrendered, Lee believed he had only around ten thousand soldiers who were actually fit for duty—and he guessed he was outnumbered by five to one. The belief that Lee was only defeated by an enemy possessing far more men and resources would become an article of faith for southerners after the war. Lee ultimately surrendered approximately twenty-eight thousand total troops, many of them having rejoined the ranks after the fighting stopped.³

In the days leading up to the surrender, it became abundantly clear to almost everyone that the end had finally arrived. Even General Lee’s leading corps commanders knew the days of the “grand old army” were numbered. With the situation becoming more and more desperate, they boldly held a somewhat mutinous private conference on the evening of April 7.⁴ There, they commissioned General William N. Pendleton, an Episcopal priest and chief of artillery for the Army of Northern Virginia, to inform Lee that the time had come for negotiations with General Grant.

Pendleton eventually caught up with Lee, who was taking a much needed rest on the morning of April 8 outside his headquarters north of Appomattox Court House. After Pendleton mentioned that the officers felt it was time to surrender, Lee replied, “Oh, no! I trust it has not come to that.”⁵ He then added,

General, we have yet too many bold men to think of laying down our arms. The enemy do not fight with spirit, while our boys still do. Besides, if I were to say a word to the Federal commander, he would regard it as such a confession of weakness as to make it the occasion of demanding unconditional surrender—a proposal to which I will never listen.

Lee was emphatic in his conversation with Pendleton that he didn’t intend to comply with the wishes of his corps commanders at that particular time. He’d rather die than accept “unconditional surrender” from Grant.⁶

Lee’s remarks to Pendleton are revealing about his thinking and strategy at this crucial juncture for his army. When he said “our boys” still fight with spirit, he was most likely trying to pacify his officers, at least for a little while. Several weeks after the surrender, when Lee could be more candid, he told President Jefferson Davis that his soldiers had become “feeble” during the final days, “and a want of confidence seemed to possess officers and men.”⁷ The “boys” of the Army of Northern Virginia may have possessed greater fighting spirit at earlier stages of the war, but that was no longer true in those trying days leading up to their surrender at Appomattox Court House. Lee, one of the finest military minds in American history, clearly knew this.

Lee’s strident unwillingness to accept an unconditional surrender that wouldn’t provide any guarantees to his soldiers seems like the real reason he wasn’t quite ready to give in to the wishes of his officers at that moment. General “U. S.” Grant actually had a reputation as “Unconditional Surrender” Grant as a result of his actions at Fort Donelson in 1862.⁸ When the Confederate defenders of the fort tried to engage in negotiations, Grant responded, “No terms except unconditional and immediate surrender can be accepted. I propose to move immediately upon your works.”

Lee, we can assume, felt his army had fought too hard and too well to accept such humiliating terms from an army whose only advantage, he believed, was sheer numbers. Surely, the victors of Fredericksburg and Chancellorsville deserved better than such an ignoble end. What Lee didn’t reveal to General Pendleton in their brief conversation is that he was already in communication with General Grant about possible terms.⁹ And Lee—who was highly regarded by his men for his audacity on the battlefield—was aiming to get a better deal for his army than unconditional surrender. Perhaps he wished to avoid the possibility of his soldiers being shipped to ghastly prison camps up north. He most certainly hoped to secure protections for his officers from future treason trials.

Grant contacted Lee first about surrendering on the evening of April 7. A Virginia doctor had told Grant of a recent conversation he’d had with captured prisoner General Richard Ewell, one of Lee’s senior commanders. Ewell had told the doctor that the “cause was lost” and that “for every man killed after this in the war somebody is responsible, and that it would be little better than murder.”¹⁰ Ewell went on to say he wasn’t sure Lee could surrender without consulting President Davis, but “he hoped he would.”

That piece of intelligence from Ewell provides the background to the initiation of a series of letters between Grant and Lee beginning on the 7th and concluding on April 9. Grant knew from recent engagements that Lee’s army was “crumbling and deserting.”¹¹ In his initial note, Grant wrote, “The result of the last week must convince you of the hopelessness of further resistance on the part of the Army of Northern Virginia in this struggle.”¹² Things had gone from bad to worse for Lee after abandoning his fortifications, and Grant was well aware of that fact.

In Lee’s response later that night, it’s evident that he was angling for generous terms for his army. Without committing himself to surrender, Lee politely wished to know what Grant was offering.

Grant replied on April 8 by stating that “there is but one condition that I would insist upon, viz, that the men and officers surrendered shall be disqualified for taking up arms again against the Government of the United States until properly exchanged.”¹³ Surprisingly, “Unconditional Surrender” Grant offered far more liberal terms than had been feared. Instead of insisting on a surrender without any guarantees, Grant proposed a deal based on the system of parole and exchange of prisoners that was quite common at that time. Confederate soldiers might possibly be allowed to return to their homes as long as they gave their word they wouldn’t return to the fight. They would be bound by their “paroles”—a word derived from French meaning “on one’s honor”—until either the war ended, or they were exchanged for northern prisoners of equal rank. Grant also implied he’d be flexible about secondary matters.

Encouraged, Lee then tried to get even more favorable terms, despite his extremely weak bargaining position. To Grant’s generous offer, Lee responded that he’d merely been interested in learning Grant’s proposals for peace. He then moved the discussion in another direction by saying, “I cannot, therefore, meet you with a view to surrender the Army of Northern Virginia; but as far as your proposal may affect C.S. [Confederate States] forces under my command, and tend to the restoration of peace, I should be pleased to meet you at 10 a.m. tomorrow.”¹⁴ Grant believed Lee’s delaying tactics were irresponsible under the circumstances. He would later say, “Lee does not appear well in the correspondence.” Grant did add, however, that subsequent interviews revealed him to be a “patriotic and gallant soldier.”¹⁵

With his army disintegrating by the hour, Lee tried to shelve any talk of surrender and instead arrange for a more general discussion of peace between the Union and the Confederate States—by this time in the war, it should be noted, Lee was the general in chief of all Confederate armies. Attempts at general peace talks had broken down before in the recent past, however, so the probability of this outcome was extremely low.

In late February 1865, Union Major General Edward Ord had met with Confederate Lieutenant General James Longstreet to discuss prisoner exchanges. They both agreed that a possible summit between Grant and Lee might bring an end to the disastrous war. Lee thought the idea worth pursuing and wrote Grant on March 2, “desiring to leave nothing untried which may put an end to the calamities of war.”¹⁶ He also advised Grant that he had the authority to act on whatever they agreed upon.

Grant sought guidance from Secretary of War Edwin Stanton, who then talked it over with the president. Stanton forwarded the following response to Grant that had been dictated by President Abraham Lincoln:

The President directs me to say to you that he wishes you to have no conference with Gen. Lee unless it be for the capitulation of Lee’s army, or on solely minor and purely military matters. He instructs me to say that you are not to decide, discuss, or confer upon any political question; such questions the President holds in his own hands; and will submit them to no military conferences or conventions—mean time you are to press to the utmost, your military advantages.

Grant wrote back to Lee on March 4 advising him that he did not have the authority to meet Lee “for a conference on the subject proposed. Such authority is vested in the President of the United States alone.”¹⁷

The attempt at “general” peace discussion among the military leaders revealed that the president believed Grant had authority to only discuss military matters and that point had been communicated directly to Lee. Attorney General James Speed would later state that a president performs two functions, “one civil, the other military.”¹⁸ Civil actions such as pardoning could not be delegated to a battlefield commander. Any powers that might be delegated to General Grant, therefore, could have been solely of a military nature. This distinction would later become critical.

With the likelihood of a humiliating surrender increasing by the hour, Lee decided on one more audacious gamble during the early hours of Sunday, April 9. At 2:00 a.m., Major General John B. Gordon’s infantry attempted to break out of the Union encirclement in the vicinity of Appomattox Court House. John Brown Gordon had risen up through the ranks without any military training prior to the war and had become one of Lee’s most tenacious commanders. Unfortunately for the Army of Northern Virginia, Gordon’s men eventually ran into a much stronger Union force. Lee’s aide-de-camp, Colonel Charles Marshall, wrote, “it became evident that the end was at hand.”¹⁹

Around 3:00 a.m., Gordon sent a note back through the lines that said, “Tell General Lee, I have fought my corps to a frazzle, and I fear I can do nothing else unless I am heavily supported by Longstreet’s corps.”²⁰ Alas, Longstreet’s men were already engaged against superior numbers and could offer no assistance. Upon hearing Gordon’s message, Lee responded aloud to no one in particular, “Then there is nothing left me to do but to go and see General Grant, and I would rather die a thousand deaths.”²¹

Lee’s life, up until this point, had consisted of a series of triumphs over formidable obstacles.²² Abandoned by his profligate father, “Light Horse Harry” Lee, young Robert looked after his mother and eventually secured admission to West Point. As a young adult with relatively few resources, he married the daughter of George Washington’s adopted son, and gradually built up an impressive investment portfolio that allowed him to support his growing family. Later, during the Civil War, Lee overcame early struggles to emerge as one of the most successful military leaders of all time. For many southerners, Lee’s military exploits surpassed those of George Washington.

Lee’s youth could not have been easy. Light Horse Harry, a renowned cavalry commander during the Revolutionary War, piled up debts and was unable to provide a stable environment for his wife and children. After having been beaten by a mob in Baltimore, Harry Lee headed to the West Indies to recover, leaving his family behind. Six-year-old Robert would never see his father again.

Growing up, Lee became quite close to his mother, Ann Carter Lee. By age thirteen, he was already assuming numerous responsibilities in the household, and was frequently looking after Ann Lee who suffered from poor health. Without money for college, Robert decided upon West Point, which was free to attend. Cadet Lee graduated second in his class at the Academy, without having incurred a single demerit. Among his classmates, he was known as the “Marble Model” because of his attractive looks and good behavior.

After graduation, Lee began his adult life with relatively few financial resources. At age twenty-four, he married Mary Custis—the daughter of George Washington Parke Custis. Mary grew up at Arlington House amidst a 1,100-acre estate. Lieutenant Lee had married well. In his twenties and thirties, he invested in banks and railroads and increased his net worth considerably. By age forty, he could comfortably support his wife and seven children.

Lee’s most dramatic triumphs were on the battlefield, of course. In one particular engagement during the Mexican War, General Winfield Scott described Lee’s actions as “the greatest feat of physical and moral courage performed by any individual in my knowledge.”²³ During the Civil War, Lee, who was nicknamed “Granny Lee” for his caution early on, became better known later for his audacity in battle. The Chancellorsville campaign may have marked the pinnacle of his success. With an army only half the size of the enemy, Lee divided his troops and then methodically defeated the Union army. After this stunning victory, Colonel Marshall wrote that Lee “sat in the full realization of all that soldiers dream of—triumph.”²⁴

Lee almost couldn’t bear the thought of surrender at Appomattox, despite his stoic resignation to do his duty. Earlier in the war, he had told a close relative that he preferred “annihilation to submission.”²⁵ As he reflected on what now lay ahead, he looked off into the distance and said, “How easily I could be rid of this, and be at rest! I have only to ride along the line and all will be over!”²⁶ Recovering, he added, “But it is our duty to live. What will become of the women and children of the South if we are not here to protect them?”²⁷

Lee then sent Grant a note requesting “an interview” so they could discuss the surrender in accordance with the terms Grant had laid out in their correspondence.²⁸ Grant, who had been suffering from a migraine, had spent the previous night bathing his feet in hot water and mustard, and putting mustard plasters on his wrists and neck “hoping to be cured by morning.” The instant Grant saw the contents of Lee’s note, however, his headache miraculously disappeared.

Lee and Grant agreed to meet at the property of Wilmer McLean at Appomattox Court House, Virginia. The gathering at McLean’s property would become one of the most iconic scenes in American history. Two old warriors—both graduates of West Point who vaguely knew of each other during the Mexican War—would shake hands in the living room of a Virginia farmhouse to reunite a suffering nation. For many, Appomattox would symbolize for all time America coming together again, finally heeding Abraham Lincoln’s declaration from his First Inaugural: “We are not enemies, but friends.”

It should be remembered, however, that the Appomattox agreement didn’t end the war—Lee only surrendered the Army of Northern Virginia that day. General Johnston’s army would remain in the field for another two weeks before surrendering to Sherman on April 26. And the last Confederate force would finally give up in Texas on June 2, 1865. The war wouldn’t be considered officially over until President Andrew Johnson’s proclamation on August 20, 1866. This date was significant to prisoners of war whose status would change once the war was declared legally ended.²⁹

Grant greeted Lee very cordially, and they engaged in some light conversation for a short time.³⁰ Eventually, Lee gently terminated the small talk by saying he wanted to discuss the terms of the surrender of his army. Grant then simply stated that he wanted Lee’s army to “lay down their arms” and not “take them up again during the continuance of the war unless duly and properly exchanged.” Lee said he understood and accepted those terms, and Grant wrote them out in pencil.

After reading the first draft, Lee said that allowing his officers to keep their side arms and horses would have “a very happy effect on his men.” He then noted that his cavalrymen and artillerymen owned their own horses, unlike the Union army.

At this time, either Lee or Grant—the sources differ on this point—mentioned that those men would need to have their horses to put in a spring crop, so it was agreed they could keep them. Regardless of whether it was Lee or Grant who actually said it, that particular anecdote has symbolized the transition from war to peace for many Americans. Grant also agreed to provide Lee’s starving army with enough food for twenty-five thousand men.

The final terms were then written out by Grant’s adjutant Ely S. Parker—a Native American from the Seneca Tribe—as follows:

General R. E. Lee
Commanding C.S. Army
GENERAL: In accordance with the substance of my letter to you of the 8th instant, I propose to receive the surrender of the army of Northern Virginia on the following terms, to wit: Rolls of all the officers and men to be made in duplicate, one copy to be given to an officer to be designated by me, the other to be retained by such officer or officers as you may designate. The officers to give their individual paroles not to take up arms against the government of the United States until properly exchanged; and each company or regimental commander to sign a like parole for the men of their commands. The arms, artillery, and public property to be parked and stacked, and turned over to the officers appointed by me to receive them. This will not embrace the side-arms of the officers nor their private horses or baggage. This done, each officer and man will be allowed to return to his home, not to be disturbed by United States authority so long as they observe their paroles and the laws in force where they may reside.

So, instead of being rounded up and taken off to prisoner-of-war camps, the Confederate soldiers were free to return to their homes for the remainder of the war. The last line—which has been described by the historian Bruce Catton as one of the greatest sentences in American history—was remarkably lenient given the violence and intensity of the fighting over the previous four years.³² The soldiers could return home “not to be disturbed by United States authority” as long as they obeyed the law. Both Lee and Grant took this agreement to mean there wouldn’t be treason trials and prison terms for the Confederate soldiers in the future.³³ Indeed, Grant would later point out that Lee wouldn’t have surrendered if he “supposed that after the surrender he was going to be tried for treason and hanged.”³⁴ General E. Porter Alexander, one of Lee’s most trusted officers, believed Grant’s liberal terms could only be “ascribed to a policy of conciliation deliberately entered upon.”³⁵

Alexander was mostly correct in his belief. Grant had talked with Lincoln, along with General Sherman and Admiral David D. Porter, about how to treat the rebel soldiers while aboard the River Queen, anchored off City Point, Virginia, in March 1865. Lincoln said he wanted to be lenient with the rebels feeling they should “let ’em up easy.”³⁶ He told his commanding officers, “Let them once surrender and reach their homes, they won’t take up their arms again. . . . Let them have their horses to plow with. . . . Give them the most liberal and honorable terms.” As the historian Brooks D. Simpson has remarked, Grant—who didn’t say much during the conversation—was always a very good listener.³⁷

Yet, Grant had received mixed signals from his commander in chief. In early March 1865, Lincoln had told him “you are not to decide, discuss, or confer upon any political question.” Then in late March, Lincoln appeared to give his general broad leeway for making “honorable terms.” The gray area between purely military matters and political questions would pose problems in the future.

Both Lee and Grant attended West Point, where they learned to resist imposing harsh punishments on their defeated enemies.³⁸ Some soldiers and political leaders throughout history, however, viewed civil wars much differently, as historian John Fabian Witt has shown. Such men as Lord Charles Cornwallis (who surrendered to the Colonial Army at Yorktown) and Napoleon had delivered horrific punishments to rebels in civil wars. That “brave, bad man” Oliver Cromwell was another leader who believed treason and rebellion must be punished severely—ironically, his body would be dug up and hanged when the Stuarts returned to power three years after his death.

How would Confederate soldiers and politicians be treated once the remaining Confederate armies in the field were defeated and the war was finally over? As honorable opponents who should be forgiven or traitorous rebels who must be tried and hanged? As we’ll see, there were many differences of opinion on these questions. After the assassination of Lincoln, quite a few prominent and influential legal minds would argue that the military agreement at Appomattox would not remain binding on the government once the fighting stopped. Treason trials, especially for leading rebels like Jefferson Davis and Robert E. Lee, might become a reality after all.

When the meeting with Grant was all over, Lee returned to his men around 3 p.m.³⁹ He told them, “I have done for you all that it was in my power to do.” He then concluded his brief remarks by saying, “Go to your homes and resume your occupations. Obey the laws and become as good citizens as you were soldiers.” Meanwhile, Grant telegraphed Secretary of War Edwin Stanton that “General Lee surrendered the Army of Northern Virginia this afternoon on terms proposed by myself.”⁴⁰

After surrendering his army, Robert E. Lee told Colonel Marshall to prepare a farewell note to the troops.⁴¹ Lee made a few changes to Marshall’s draft, which eventually was titled “General Order No. 9.” Lee then signed it, and distributed it to his men. This document would become a central text for southerners in the decades after the war.

Lee began by telling his devoted soldiers why he decided to surrender. The Army of Northern Virginia had been “compelled to yield to overwhelming numbers and resources” and it had become clear that further resistance would have resulted in a “useless sacrifice” of men. Lee decided to make the best deal possible for the army. He commended the men for their “consciousness of duty faithfully performed” and concluded his note by expressing his admiration for their “constancy and devotion” to their country. By using the word “country,” he meant the Confederate States of America. That country’s relatively brief existence would soon be extinguished, however, as the armies of Generals Grant and Sherman began the final push against General Johnston.

With his farewell complete, Lee declined to attend the formal surrender ceremony.⁴² He left his quarters in the field on April 12, and headed home to Richmond as a prisoner on parole. His legal status was just like the rest of his soldiers. Accompanied by his son Custis and several colleagues, he took his time making the journey home of approximately eighty miles. On April 14, the small band arrived at Lee’s brother’s house on the outskirts of town. There—on the grounds of the property—Lee slept in a tent for the last time in his life. That very same evening, America’s political situation would be turned upside down, threatening all of the progress made at Appomattox.

The famous actor John Wilkes Booth had shot President Abraham Lincoln that night at Ford’s Theatre. Secretary of State William Seward had also been gravely injured at his home in a related attack. The nation’s beloved president, who had steadfastly led the nation through its most harrowing struggle, would die in the early hours of the next morning. With the extent of the conspiracy still unknown, Americans experienced tremendous fear and grief.

On Saturday, April 15, around 3 o’clock in the afternoon, Lee’s party finally arrived at Richmond, a city that now resembled a smoking ruin. Countless factories, warehouses, and family homes had been destroyed. As a driving rain soaked him to the bone that day, Lee possibly reflected on all that had been lost as a result of the war.

Personally, it had been an enormous tragedy for the professional soldier, who had served the US Army for thirty-four years prior to the outbreak of hostilities in 1861. The Lees lost numerous family members—among them their twenty-three-year-old daughter Anne Carter Lee—along with their ancestral home “Arlington House” in Arlington, Virginia. The home, which had been bequeathed to Lee’s wife Mary Anna Custis—the daughter of George Washington’s adopted son—had been seized by the federal troops shortly after the fall of Fort Sumter. Later, the US government took legal title to the property due to unpaid taxes by the Lees. In 1864, the estate was converted into a national cemetery for the Union. Today, we can still see Arlington House on a hill overlooking the Potomac River and Washington, DC. It’s now a national landmark on the grounds of Arlington National Cemetery. Lee and his wife never got over the loss of this magnificent property.

The country—both North and South—had experienced tremendous losses as well. Roughly 750,000 soldiers lost their lives during the conflict. Additionally, there were approximately 1.5 million casualties. Among just southerners, around one in three households lost at least one family member, and the South’s overall wealth decreased by 60 percent.⁴³

As Lee approached his new home on 707 East Franklin Street in Richmond, onlookers began to cheer.⁴⁴ He responded to them by raising his hat. And then, moving slowly and with great emotion, he dismounted from his horse, Traveller, made his way through the crowd, and quietly entered his house.

Over the next several weeks, while the rest of the nation was fixated on the dramatic events surrounding Lincoln’s assassination, Lee spent most of his time at home, catching up on his sleep. On occasion, he’d slip out late at night for walks around the city. Friends noticed his sadness during that painful time. One of them asked him, “Why will you look so heartbroken?” Lee responded, “Why shouldn’t I? My cause is dead! I am homeless—I have nothing on earth.”

Just one day after Lee arrived home in Richmond, the famous photographer Mathew Brady took photographs of Lee on his back porch in “several situations.”⁴⁵ Brady later said, “It was supposed that after his defeat it would be preposterous to ask him to sit, but I thought that to be the time for the historical picture.”

Brady was assisted in arranging the session by Lee’s wife and Colonel Robert Ould, who was the Confederate agent for the exchange of prisoners during the war. Brady was given just one hour to photograph Lee on Easter Sunday, April 16, which was also, we should remember, one day after the death of Lincoln.

There were six photos in all. First, Lee was photographed while seated. Then he appeared with his son Custis and his aide Colonel Walter Taylor. And then finally, there was a shot of Lee standing in the doorway.

Brady remembered, “There was little conversation during the sitting, but the General changed his position as often as I wished him to.”⁴⁶ Lee wore his finest uniform along with well-shined black shoes. He didn’t, however, wear his sword, sash, and boots.⁴⁷ The photographs became hugely popular. Brady remembered selling them by the thousands.⁴⁸ And devotees of Lee often asked Mary for signed photos of the general. Brady clearly succeeded in preserving the great man for history.

Lee’s biographers have attempted to extract meaning from the photos to help better understand that tragic moment in American history. Douglas Southall Freeman, Lee’s leading biographer, sees a “shadow of anguish and defiance lingering on his face.”⁴⁹ Another historian perceives “the light of battle in his eyes”—Lee is “surrendered but not defeated.”⁵⁰

It’s probably not all that helpful to project one’s own beliefs onto images from 150 years ago. Trying to interpret the meaning behind Lee’s various poses seems like a hopeless exercise. It’s much more promising to view the photos within the context of what we now know. On that Easter Sunday, just one day after the death of Abraham Lincoln, Robert E. Lee decided to pose for posterity in a clean military uniform with polished shoes. He could have firmly said no, but he didn’t. He also could have posed in civilian clothing. What we see appears to be a proud, dignified soldier who felt he had nothing to apologize for. And by posing in his own home, instead of on the battlefield or in a jail cell, it feels like the war is over and Lee is a free man.⁵¹

There’s one interesting fact about the photos that is often overlooked by writers on this subject. Lincoln was assassinated by Booth on Friday, April 14, and died on Saturday morning, April 15. Information traveled more slowly back then. One newspaper account notes that Lee was told of Lincoln’s death by Robert Ould on Sunday afternoon, April 16—more than twenty-four hours after the event. Since we know Ould is the exact same person who arranged the Brady photo session, there’s a real possibility that Lee had just heard the news of Lincoln’s death prior to sitting for the photos. Lee would later say the South lost a friend in Lincoln, and that Lincoln was likely to be more lenient than his successor, Andrew Johnson.⁵² One wonders if he was preoccupied with such thoughts during his time with Brady.

While Lee is held in high esteem by many Americans nowadays, the same could not be said in April 1865. Politicians, soldiers, and ordinary people were much more divided in their opinion of his role in the bloody Civil War. A perfect symbol of this divided outlook can be seen in Brady’s photo of Lee standing alone on his back porch.⁵³

Despite being a paroled prisoner, Lee appeared dignified in his uniform in front of the back door to his family home. Here we are meant to see a great leader who fought gallantly for a cause he passionately believed in. Unbeknownst to Lee and Brady, however, someone had preemptively spoiled the picture by writing the word “Devil” on the brick to the left of the door. Brady erased the graffiti once he noticed it and took that photo again.⁵⁴ Lee would have a harder time in the coming months “erasing” the beliefs of those who felt he had betrayed his country.

One northern newspaper had a particularly negative reaction to the Brady photos.⁵⁵ Just two weeks after the shoot, The Providence Journal wrote that it had learned the news that “General Lee has had his photograph taken in six different attitudes, all very life-like.” The piece then snidely lists the various moods. The first one is the “meditative mood” where Lee, prior to his resignation, listens to his commanding officer’s plans for “the first campaign against the rebels.” The second one is the “sneaking mood,” where Lee “having determined to become a traitor to his country, is sneaking away from Washington.” Provocatively, the fourth mood is labeled the chivalric mood—“permitting the Union prisoners to be starved.” The concluding mood, according to the newspaper, is the current one of Lee in Richmond. As the crowd cheers, Lee directs “the United States officers to remove the colored sentinels from his private mansion, as they were quite offensive to him and his wife.”

Lee didn’t enjoy being in the spotlight, but he couldn’t avoid it in the weeks after Appomattox. Despite his love of seclusion, he actually agreed to an interview with Thomas Cook of the New York Herald just a week after the sitting for Brady.⁵⁶ As a general rule, Lee didn’t talk with journalists, so this was an unusual event. The interview appeared in print on Saturday, April 29 and provides us with a fascinating glimpse into the mind of Lee at that pivotal time in our nation’s history—its richness as a source makes it worth considering in detail (see appendix A for the complete transcript). Lee’s remarks to Cook provoked spirited reactions in both the North and the South. For southerners, Lee personified their noble but failed cause. Indeed, many of his remarks would provide the intellectual underpinnings for the southern outlook that would prevail over the subsequent decades after Appomattox.

For many northerners, however, he appeared disdainful and unapologetic. Worst of all, perhaps, his apparent defiance came at a time when most Americans were still mourning the loss of President Lincoln. Lee, who was almost always careful not to roil the waters of public opinion, most certainly would have been aware of the dangers of being interviewed at such a sensitive time. Remarkably, he agreed to do it anyway. Lee may have been audacious on the battlefield, but he was usually quite circumspect when it came to making public statements.

Cook’s interview was surprisingly wide-ranging and intimate. Even though he wrote for a publication that had been very critical of the Lincoln administration, Cook is viewed by most historians as fair and accurate. While Lee told Cook he had no desire to talk politics, he nevertheless shared his views on secession, slavery, the death of Lincoln, and what must be done to restore harmony to the nation. On a personal note, he revealed that he just wanted to “retire to private life and end his days in seclusion.” Sadly, he also confessed that he’d have “been pleased had his life been taken in any of the numerous battle fields on which he had fought during the war.”

At times, Lee was conciliatory. He said he found notoriety distasteful, “but was ready to make any sacrifice or perform any honorable act that would tend to the restoration of peace and tranquility to the country.” Cook also told his readers that General Lee, “strange as it may appear, talked throughout as a citizen of the United States.” In the three weeks since Appomattox, Lee had gone from talking about two countries to just one country—even though the war wasn’t officially over yet.

Lee’s views on the assassination of Lincoln would have been appreciated by northerners. He believed the event was “one of the most deplorable that could have occurred,” and he was adamant that no one in a leadership position in the South would have sanctioned such a crime.

Alongside this spirit of reconciliation, Lee also exhibited moments of proud defiance. He warned that if the US government insisted on “arbitrary or vindictive or revengeful policies,” then “the end was not yet.” The South still had resources and would be able to continue the struggle, if necessary. Offering some cautionary guidance, Lee said, “if a people are to be destroyed they will sell their lives as dearly as possible.”

Lee vigorously defended Jefferson Davis when Cook suggested that soldiers might receive amnesty, while politicians would be “held to a strict accountability.” Lee believed Davis was no different than any other southerner. Davis, according to Lee, shouldn’t suffer more than anyone else—“his acts were that of the whole people, and the acts of the whole people were his acts.”

This incredible interview feels raw and authentic to the modern reader—it’s as if Lee was caught momentarily without his usual defenses when making public remarks. At times, Lee calmly and benevolently tries to make amends with his former enemies. At other times, however, he implies that the South’s return to the Union was conditional. A lenient policy might possibly lead to a “restoration of peace and tranquility to the country.” Hard measures—like treason trials and prison sentences—could result in an even bloodier conflict down the road, however. The word “restoration” was carefully chosen by Lee, too. He liked the idea of returning to a Union that looked more like the one in 1860 than some other future possibility.

On one crucial level, this interview can be viewed as the opening argument for Lee’s defense against any future prosecution or condemnation—by either government lawyers or by the bar of history. Surprisingly, Lee told Cook he was an opponent of secession at the outset of the conflict, but he firmly believed in the doctrine of “States rights.” So when Virginia withdrew from the Union, Lee felt “he had no recourse, in his view of honor and patriotism, but to abide her fortunes.”

For Lee, there was a legitimate debate surrounding the relative powers of the various states versus the federal government. Ultimately, it required war to settle the disagreement—such a war, according to Lee, “cannot be considered treason.” He then made a general remark that obviously applied to him personally: “A man should not be judged harshly for contending for that which he honestly believes to be right.”

At this point, in what must have been a pretty shocking perspective for Cook and his readers, Lee argued that slavery, from the southern viewpoint, hadn’t been an obstacle at all for securing peace. He added, “The best men of the South have long been anxious to do away with this institution, and were quite willing today to see it abolished.” The real challenge in the future, for Lee, was “what will you do with the freed people?” Lee doesn’t offer an answer to that question beyond saying, “the negroes must be disposed of” and a humane course would be needed before setting them free.

Lee’s thoughts about slavery and freedmen in this interview are curious, if somewhat implausible. He told Cook the South had been ready for peace over the past two years, and that the “best men wanted to do away with the institution.” Yet, two years earlier, immediately after the issuance of Lincoln’s Emancipation Proclamation that freed the slaves, President Jefferson Davis had declared before the Confederate Congress that “a restoration of the Union has been rendered forever impossible by the adoption of a measure which from its very nature neither admits of retraction nor can coexist with union.”⁵⁷ And in May 1863, the Confederate Congress, meeting in secret session, passed legislation enabling capital punishments for any white officers and black soldiers who tried to implement emancipation. As the commander of the Army of Northern Virginia, Lee’s job was to help enforce that legislation. Finally, at the very beginning of the Confederacy in March 1861, its vice president, Alexander Stephens, said:

Our new Government is founded upon exactly the opposite idea; its foundations are laid, its corner-stone rests upon the great truth, that the negro is not the equal of the white man; that slavery—subordination to the superior race—is his natural and moral condition.

This, our new Government is first, in the history of the world, based upon this great physical, philosophical and moral truth.⁵⁸

One wonders who Lee was referring to when he said the “best men” wanted to end slavery.

The major tenets of Lee’s defense that emerge from the New York Herald interview—that his primary loyalty lay with Virginia and that the war wasn’t about slavery—soon became central to the Lost Cause tradition—a set of beliefs that were extremely popular in the South in the decades after the war. In his interview with Cook, the combative Confederate general in chief had fired off the first salvo and would now await the return volley. The response would be considerably harsher than Americans might think today. Instead of a president who wanted to “let ’em up easy,” there was now a new commander in chief from the border state of Tennessee who vowed to make “treason odious.” Ever the stoic, Lee would be ready for whatever came next. Later that spring, he’d tell his adored cousin “Markie,” “I am aware of having done nothing wrong & cannot flee.”⁵⁹ Lee’s critics saw things much differently. They would now make their case.

“I AM AWARE OF HAVING DONE NOTHING WRONG & CANNOT FLEE.”