Stacking Arms “What Ifs?” – Episode VII: “What If” Grant Had Not Used His Peculiar Language in the Appomattox Surrender Terms?

“In accordance with the substance of my letter to you of the 8th instant, … each officer and man will be allowed to return to their homes, not to be disturbed by United States authority as long as they observe their parole and the laws in force where they reside” (emphasis supplied). Terms of Surrender offered by Lt. Gen. Ulysess S. Grant and accepted by Gen. Robert E. Lee, April 9, 1865, Appomattox Court House.[1]

With these soon to be controversial words, Grant may have saved Lee’s life. The man known as “Unconditional Surrender” Grant included a critical condition within the surrender terms offered Lee. That condition afforded Lee and other officers of the Army of Northern Virginia a valuable legal defense when they were indicted for treason after their surrender at Appomattox Court House.

In drafting his Appomattox terms, Grant was motivated by a spirit of magnanimity that had been encouraged by Abraham Lincoln in meetings with Grant.[2] Grant also wanted to ensure that Lee’s men and after them, other Confederate forces, laid down their arms rather than engage in what might become a protracted and bitter guerilla war.[3] Grant hoped that with Lee’s surrender, the war would come to a close. The victor wanted the vanquished to return home without humiliation and turn to peaceful pursuits.[4]

Yet not all agreed with Grant’s generous terms. As historian Caroline Janney has noted, “…almost from the moment he penned the agreement Grant found himself on the defensive,” with many in the Northern public asking, “Why had he been so lenient?” and, “Had he afforded protections to the rebels beyond his capacity as a military commander?” Especially after President Abraham Lincoln’s assassination, vengeance-seekers wanted the rebellion’s leaders punished. One crowd chanted “Hang Lee!”[5] U.S. Quartermaster General Montgomery Meigs, who had interred Union dead in Mary Lee’s rose garden at Arlington House, ‘wanted Lee and other Confederate leaders tried and executed “by the government which they have betrayed [and] attacked.”’[6]

Action against Lee came quickly. In June 1865, a grand jury sitting in Norfolk, Virginia and overseen by ardent Unionist Judge John C. Underwood indicted Lee for treason.[7] Underwood acknowledged that it would be difficult to convict Lee before a Virginia jury, but was confident that he could arrange such a result by “packing” the jury.[8]

Upon learning of his indictment, Lee contacted Grant. Lee said that he had understood that Grant’s phrase “not to be disturbed by United States authority” meant that he was immune from prosecution. Grant agreed and advised Lee to apply for the pardon Lee had said he had decided to seek before he learned of his indictment.[9]

Taking no chances, Lee submitted his pardon application directly to Grant. Lee wrote that while he did not seek to avoid trial, he believed that the Appomattox language shielded him. Grant forwarded Lee’s application to President Andrew Johnson with this endorsement: “In my opinion the officers and men paroled at Appomattox Court-House, and since, upon the same terms given to Lee, cannot be tried for treason so long as they observe the terms of their parole…. Good faith, as well as true policy, dictates that we should observe the conditions of that convention.”[10]

Johnson disagreed. In a heated meeting with Grant, Johnson demanded to know why would “any military commander have the right to protect an arch-traitor from the laws?” Grant argued that he had pledged his word, claiming that had he not done so Lee would not have surrendered. When Johnson persisted, Grant threatened to resign from the army if the treason charge were pursued. Grant told his staff “I will not stay in the army if they break the pledges that I made.” Johnson blinked. On June 20, Johnson’s Attorney General, James Speed, ordered the prosecution dropped.[11]

While Grant prevailed, he had indeed overstepped his proper sphere. Grant was not empowered to grant amnesty or pardon. Grant surely knew this. Indeed, only the month before Grant had been warned not to touch any political questions in dealing with Lee. On March 3, Secretary of War Edwin Stanton wrote Grant: “[The President] 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.”[12]

Moreover, Grant’s claim that Lee would never have surrendered absent a promise of amnesty was baseless. Lee himself had not raised the subject. On April 9 Lee’s army was effectively surrounded, on the verge of destruction. Lee had worn his best uniform to meet Grant because he expected to be taken prisoner.[13] Lee was actually relieved when Grant told him in the surrender conference that his (Grant’s) terms were the same as offered the day before, that is, Lee’s men were to give up their arms and be paroled.[14] In fact, only hours before Lee had described those terms as both “honorable and liberal.”[15] Lee had to have been glad to still get them.

Nor could Grant claim that he was simply following Lincoln’s wish to be magnanimous, because he went beyond even what Lincoln was on record as being prepared to do. In his December 8, 1863 Proclamation of Amnesty and Reconstruction, Lincoln offered a pardon to those who laid down their arms, took a loyalty oath and accepted the Emancipation Proclamation. But Lincoln’s offer did not extend to soldiers above the rank of colonel or anyone who had resigned a commission to fight for the Confederacy; thus, Lee was doubly excluded under Lincoln’s offer.[16] Yet Grant still extended a pardon.

All of this leads to an intriguing “what if.” What if Grant, knowing he was forbidden to touch political questions, that Lincoln had excluded high Confederate officials from any automatic pardon, and that he had Lee and his army at his mercy, had on April 9 simply offered the terms he had suggested to Lee in his recent correspondence, which themselves were liberal, a far cry from “unconditional surrender”?

What if Brig. Gen. John A. Rawlins, Grant’s chief of staff and a former lawyer, who had only the day before reminded Grant that he had no authority to meet Lee to discuss peace, had cautioned his superior that he was straying into the political? Lieutenant Colonel Ely Parker, Grant’s private secretary and also a trained lawyer, might have raised the same concern about the political implications of the “not to be disturbed” language when Grant had Parker go over the terms with him before presenting them to Lee.[17]

Grant, who only weeks before had had his knuckles firmly rapped by Stanton and Lincoln for seeming to inject himself into non-military issues, might have recognized that he could be accused of a similar trespass. He might then have shied away from the possible controversy, deciding he simply did not need such at his moment of triumph. Let Lincoln deal with such post-war issues as treason trials. Indeed, Grant would have assumed (correctly) that there was no need to fear such retribution with Lincoln having already expressed his “malice toward none” policy.[18] A stroke of the pen would have obliterated the controversial phrase, with the final surrender document simply granting Lee a normal parole.

With a Grant-provided promise of amnesty gone, Lee would have been vulnerable to his future treason indictment. Moreover, by that time, the benevolent Lincoln also was gone, replaced by a vengeance-inclined Johnson, backed by a Northern populace out for blood. Grant probably still would have been dismayed at the thought of prosecuting Lee. Yet he could not have presented Johnson with the claim that he (Grant) had given his word that Lee would face no trial, because in this scenario, Grant would not have done so. Perhaps Grant, while appalled, would have submitted to Johnson’s will without threatening to resign his commission. Grant might have felt that his country needed his services more than ever because of the risk of a violent reaction in the South to Lee’s prosecution.

Moreover, Lee would have faced more risk of conviction than Davis ever did, due to the governing law. In connection with Davis’s treason case Attorney General Speed had issued an opinion concluding that any trial against the ex-Confederate President had to be brought in Virginia, because Davis had committed his (alleged) treason there. Speed opined that Davis could not lawfully be deemed to have been effectively “present” wherever Confederate armies had engaged in warfare against the United States.[19]

Lee’s case, of course, was entirely different. Lee had led troops waging war against the U.S. in Maryland and Pennsylvania. Lee could be reindicted and tried in either state. And of course, it would be far easier to empanel a jury of loyal citizens hostile to Lee in, say, Pennsylvania than Virginia.

Perhaps Adams County, Pennsylvania, whose citizens had recently borne the brunt of Lee’s invading army, might have furnished an appropriate venue for Lee’s treason trial. In the end, the little town of Gettysburg might have become known less for the “few appropriate words” spoken by a martyred president, and more as the place where the person Johnson called the “arch-traitor” was found guilty of treason and hanged.

Part of a series.

[1] “Surrender Documents,” National Park Service, https://www.nps.gov/apco/learn/historyculture/surrender-documents.htm (emphasis supplied); see also The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies, Ser. I, Vol. XLVII, Pt. III (Government Printing Office, Washington, D.C., 1880-1901), p. 140, https://babel.hathitrust.org/cgi/pt?id=hvd.hwanre&seq=144 (hereafter “OR”). Curiously, the wording of the highlighted language differs slightly in the version printed in the OR.

[2] Ulysses S. Grant, John F. Marszalek with David S. Nolen and Louie P. Gallo, Eds., The Personal Memoirs of Ulysses S. Grant: The Complete Annotated Edition (The Belknap Press of Harvard University Press, Cambridge, MA, 2017), p. 681; Ron Chernow, Grant (Penguin Press, New York, NY, 2017), pp. 468, 485; Eric J. Wittenberg, We Ride A Whirlwind: Sherman and Johnston At Bennett Place (Fox Run Publishing, Burlington, NC, 2017), pp. 200-218 (Appendix B, “The Basis for Sherman’s Belief That Abraham Lincoln Would Have Supported His Actions at Bennett Place on April 17, 1865”).

[3] Caroline E. Janney, Ends of War: The Unfinished Fight of Lee’s Army After Appomattox (The University of North Carolina Press, Chapel Hill, NC, 2021), pp. 22, 27, 87-88.

[4] Grant, p. 724; John Russell Young, Around The World With General Grant: A Narrative Of The Visit Of General U. S. Grant, Ex-President Of The United States, To Various Countries In Europe, Asia, And Africa, In 1877, 1878, 1879: To Which Are Added Certain Conversations With General Grant On Questions Connected With American Politics And History (Subscription Book Department, American News Co., New York, NY 1879), Vol. 2, pp. 457-458, https://archive.org/details/aroundworldgrant02younuoft/page/456/mode/2up?q=lee; Janney, pp. 25, 27, 87; Chernow, pp. 508, 510, 513-514.

Grant later wrote that Lincoln gave his “hearty approval” of the terms given Lee. OR, Ser. I, Vol. XLVI, Pt. III, p. 1276, https://babel.hathitrust.org/cgi/pt?id=uc1.31210010132882&seq=1282. Indeed, during a March 20, 1865, meeting with Grant, Maj. Gen. William T. Sherman and Adm. David Porter at City Point, aboard the River Queen, in discussing the terms of surrender he wanted, Lincoln was recorded as saying “Let them surrender and go home…. I say, give them the most liberal and honorable terms.” Joan Waugh, ‘”I Only Knew What Was in My Mind”: Ulysses S. Grant and the Meaning of Appomattox,’ Journal of the Civil War Era, Vol. 2, No. 3 (University of North Carolina Press, Chapel Hill, NC, September 2012), pp. 307-336, at p. 321, https://www.jstor.org/stable/10.2307/26070247.

[5] Janney, pp. 22, 219-220; Waugh, p. 329; Elizabeth R. Varon, Appomattox: Victory, Defeat and Freedom at the End of the Civil War, pp. 198-199 (Oxford University Press, New Yor, NY 2014); Charles Bracelen Flood, Lee: The Last Years(Houghton Mifflin Company, Boston, MA, 1981), p. 58; Myrta Lockett Avary, Dixie After the War; An Exposition of Social Conditions Existing in the South, During the Twelve Years Succeeding the Fall of Richmond (Doubleday, Page & Company, New York, NY, 1906), p. 89, https://archive.org/details/dixieafterwarexp00avar/page/88/mode/2up.

[6] Robert O’Harrow, Jr., The Quartermaster: Montgomery C. Meigs, Lincoln’s General, Master Builder of the Union Army, pp. 207-208 (Simon & Schuster Paperbacks, New York, NY 2016).

[7] Janney, pp. 219-221.

Thirty-six other ex-Confederate leaders, including sixteen officers of the Army of Northern Virginia, also were included in the June 1865 indictments. Id. at 221.  Davis already had been indicted, in Washington, D.C., although he would later be reindicted in Virginia in May 1866. Cynthia Nicoletti, Secession on Trial: The Treason Prosecution of Jefferson Davis(Cambridge University Press, New York, NY 2017), pp. 140, 164-167, 185 & n. 5.

[8] Report of the Joint Committee on Reconstruction, H.R. Rep. 39-30, pt. 2, p. 10 (1866) (January 31, 1866 testimony of John C. Underwood). Underwood at the time was focusing on the prospect of convicting Davis but clearly was willing also to pack a jury against Lee.

[9] Flood, pp. 62-63.

[10] Flood, p. 63; OR, Ser. I, Vol. XLVI, Pt. 3, pp. 1275-1276, 1286-1287 (Lee & Grant correspondence),https://babel.hathitrust.org/cgi/pt?id=uc1.31210010132882&seq=1293.

[11] Young, pp. 460-461; Janney, pp. 224-225; Chernow, pp. 552-553; Flood, p. 63. In an initial draft of his official report of operations since becoming general-in-chief, Grant reiterated his claim that if Lee had been “persuaded that he was to be tried for treason and pursued as a traitor, the surrender never would have taken place.” Grant struck this language from his final report. Janney, p. 226.

[12] Chernow, p. 474; Janney, p. 26. Stanton’s stern message was sparked by Grant reporting that Lee had suggested peace discussions by what he called a “military convention.” For the background of this scheme, see James Longstreet, From Manassas to Appomattox: Memoirs of the Civil War in America (Barnes & Noble, Inc., New York, NY, 2004), pp. 501-505; Clifford Downey & Louis H. Manarin, Editors, The Wartime Papers of Robert E. Lee (DaCapo, New York, NY, 1961), pp. 897-898, 911-912; Chernow, p. 474; Stanton’s Letter to Grant, March 3, 1865, Encyc,https://encyc.org/wiki/Stanton%27s_Letter_to_Grant,_March_3,_1865.

[13] Chernow, p. 506.

[14] Flood, p. 9.

[15] Varon, p. 42.

[16] Lincoln’s December 8, 1863 Proclamation of Amnesty and Reconstruction, located at http://www.freedmen.umd.edu/procamn.htm, excluded from its protections, inter alia, civil officers of the Confederacy, military officers above the rank of colonel, anyone regardless of rank who had resigned a commission in the U.S. army or navy to fight for the Confederacy, and all involved in failing to treat African American soldiers lawfully as prisoners of war.

[17] Burke Davis, To Appomattox: Nine April Days, 1865 (Eastern Acorn Press, reprint by Publishing Center for Cultural Resources, New York, NY, 1992), pp. 32, 335, 369, 383; Janney, p. 15.

[18] “With Malice Toward None…”: Lincoln’s Second Inaugural Address, National Park Service (September 12, 2021), https://www.nps.gov/articles/000/-with-malice-toward-none-lincoln-s-second-inaugural.htm.

[19] Nicoletti, pp. 137-141, citing James Speed, “Case of Jefferson Davis,” Opinions of the Attorney General II (1866), pp. 411-413, https://babel.hathitrust.org/cgi/pt?id=mdp.35112101351627&seq=429.