Lee Did Lee violate his oath?

All those cases address the legal concept of Federal Supremacy. Please believe me, as a lawyer, when I tell you that the first time the Supreme Court addressed secession was in Texas v. White. This is well understood in legal circles and is undisputed.
Please believe me, as a lawyer, when I tell you that until the Civil War the legality of secession did not present a justiciable case or controversy for the SCOTUS - a limitation it had followed since 1793. No secession, no case or controversy.
 
All those cases address the legal concept of Federal Supremacy. Please believe me, as a lawyer, when I tell you that the first time the Supreme Court addressed secession was in Texas v. White. This is well understood in legal circles and is undisputed.

Secession is an attempt to overturn federal supremacy, thus jurisprudence on the legal concept is precedent.

That someone is a lawyer is no reason to believe them, and in some circumstances can be a reason to disbelieve them

In the 1862 Prize cases, the Supreme Court referred to the rebels as having "cast off their allegiance and made war on their Government, and are nonetheless enemies because they are traitors". Doesnt say the word 'secession' but seems clear what the court thought of it.

Im pretty certain Mauran v. Insurance Company [73 U.S. 1] was before Texas v White. In that case the Court declared "all the proceedings of these eleven states, either severally or in conjunction, by means of which the existing governments were overthrown and new governments erected in their stead, were wholly illegal and void, and that they remained after the attempted separation and change of government, in judgment of law, as completely under all their constitutional obligations as before." Doesnt say the word 'secession' but seems clear what the court thought of it.
 
I see that -- its a reference to the several states composing the United States. Your point does not follow from it as Lee decided to choose against the several states composing the USA and in favor of people who claimed some of the States were no longer in the USA
You have hit upon what I think is the best counter argument to my position. That the oath has to be read as an oath to protect the states comprising the US. And since Virginia, for example, was no longer in the Union, then Lee violated his oath. But the official policy of the US government was that Virginia never left the US and was still a state in the US. If Virginia did in fact leave the US, then Lee did violate his oath. But then that means secession was legal and the US forced Virginia back into the US against the will of its people. If Virginia did not leave the US, because secession was illegal, as we know now from Texas v. White, then the oath becomes impossible to honor, since sovereign states are warring among each other. I know, I know, you disagree that Virginia was involved at all and it was just a bunch of rebels pretending to be Virginia (and the REAL Virginia was somewhere in hiding I suppose), but that seems to fly in the face of historic fact.
 
Please believe me, as a lawyer, when I tell you that until the Civil War the legality of secession did not present a justiciable case or controversy for the SCOTUS - a limitation it had followed since 1793. No secession, no case or controversy.
I agree completely.
 
Col. Robert E. Lee, US Army, resigned his commission, which was accepted April 25, 1861.
Robert E. Lee was appointed general in the Militia of the State of Virginia, commanding the State's military and naval forces April 23, 1865.
View attachment 416627
Was holding a State troops/militia commission and a US Army commission simultaneously a breach of oath? I doubt it.

April 27, the State of Virginia organizes a provisional army for defense..., commanded by Maj. Gen. Lee of the State of Virginia.

April 17, 1861; Virginia convention votes secession from the USA, pending a referendum vote (held and ratified, May 23).

April 25, 1861 the State of Virginia entered into a temporary convention with the Confederate States of America...

May 23, 1861, VA ratifies ordinance of secession after referendum vote in the affirmative.
May 24 US troops enter Virginia... at Arlington If I recall correctly...

June 19, 1861: the State of Virginia ratifies the Constitution of the CSA, and declares itself bound to it...

July 13, 1861: The United States Government Act declares a large part of the State of Virginia in rebellion... August 16, 1861 Pres. Lincoln by proclaims the people of Virginia, east of the Alleghenies, (including Gen. Lee) in rebellion against the USA...

Lee was commissioned as a General in the CS Army, in August, 1861 to rank from June 21, 1861. In early 1865 he was appointed General-in-chief of the CS Army...

Parole of Gen. Lee accepted by the US Army at Appomattox Court house, VA, April 9, 1865:
View attachment 416634

And general Lee was never "properly exchanged" by POW cartel to allow him to serve the CSA in any military capacity before the close of the war...

Oath of allegiance to the United States, signed Oct. 2, 1865:
View attachment 416632

In 1975, Lee's full rights of citizenship were posthumously restored by a joint congressional resolution effective June 13, 1865.

During his lifetime he was neither tried or convicted of treason. (If anyone is aware of a Confederate soldier or sailor convicted of treason, I would be interested in knowing).

The Constitution of the US defines treason as:

"Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted."


There appears to be many yet who would like to act as witnesses for some sort of prosecution.
There are three different concepts in play here: (1) violation of the oath; (2) treason; and (3) prosecution/conviction of treason. (1)'s obligation doesn't just disappear by resigning or retiring. (2) doesn't depend on the oath - it depends on citizenship. Plenty of those who took up arms against the US for the CSA had never attended West Point and taken the oath. (3) like any other violation, the decision not to prosecute doesn't mean there was no violation. It only means that the Government concluded that there were good reasons not to pursue it.
 
Col. Robert E. Lee, US Army, resigned his commission, which was accepted April 25, 1861.
Robert E. Lee was appointed general in the Militia of the State of Virginia, commanding the State's military and naval forces April 23, 1865.
...
Was holding a State troops/militia commission and a US Army commission simultaneously a breach of oath? I doubt it.
Depends on what the State troops were being used for.
April 24, 1861 Lee wrote "Our object is to interrupt the navigation of the Potomac by batteries"
 
...But the official policy of the US government was that Virginia never left the US and was still a state in the US.
In which case Lee was at war with the State of Virginia that remained in the US, as there was a recognized Unionist government that did not support the CSA nor was the source of his commission and that was recognized as within the USA the whole time fighting the rebel cancer within it

since sovereign states are warring among each other.
Except they werent under the theory that Virginia never left. In that legal framework, the rebel party was not a soveriegn state.

I know, I know, you disagree that Virginia was involved at all and it was just a bunch of rebels pretending to be Virginia (and the REAL Virginia was somewhere in hiding I suppose), but that seems to fly in the face of historic fact.
Not at all. I think historic fact is entirely on my side.
 
There are three different concepts in play here: (1) violation of the oath; (2) treason; and (3) prosecution/conviction of treason. (1)'s obligation doesn't just disappear by resigning or retiring. (2) doesn't depend on the oath - it depends on citizenship. Plenty of those who took up arms against the US for the CSA had never attended West Point and taken the oath. (3) like any other violation, the decision not to prosecute doesn't mean there was no violation. It only means that the Government concluded that there were good reasons not to pursue it.
To add to your list of concepts, and which could be the basis for another thread, is expatriation. If you have surrendered your citizenship you can't commit treason. That is why most who are tried for treason are people who act in the guise of a loyal citizen, but in fact are surreptitiously acting in favor of another country. Since the CSA achieved belligerent status its arguable that its citizens who openly declared themselves as CSA citizens had been expatriated. Not a slam dunk, but at least arguable. The law on what constitutes expatriation is very thin.
 
During his lifetime he was neither tried or convicted of treason. (If anyone is aware of a Confederate soldier or sailor convicted of treason, I would be interested in knowing).
In 1868 President Johnson issued a proclamation "Granting Full Pardon and Amnesty for the Offense of Treason Against the United States During the Late Civil War"
No treason trials for any confederate could go forward after that.
 
In which case Lee was at war with the State of Virginia that remained in the US, as there was a recognized Unionist government that did not support the CSA nor was the source of his commission and that was recognized as within the USA the whole time fighting the rebel cancer within it


Except they werent under the theory that Virginia never left. In that legal framework, the rebel party was not a soveriegn state.


Not at all. I think historic fact is entirely on my side.
Well, Virginia may be a poor example due to the Restored Government of Virginia which ultimately became West Virginia. But the Restored Government was pretty much a joke that controlled no land other than federal occupied land, and if memory serves, it was self appointed and did not engage in elections. But point taken. Of course, my argument works equally with respect to South Carolina and Georgia.

Oh, and Mauran and Insurance Company was decided by the Supreme Court in 1867.
 
Well, Virginia may be a poor example due to the Restored Government of Virginia which ultimately became West Virginia. But the Restored Government was pretty much a joke that controlled no land other than federal occupied land, and if memory serves, it was self appointed and did not engage in elections. But point taken. Of course, my argument works equally with respect to South Carolina and Georgia.

Oh, and Mauran and Insurance Company was decided by the Supreme Court in 1867.
And Texas V White was 1869?
 
To add to your list of concepts, and which could be the basis for another thread, is expatriation. If you have surrendered your citizenship you can't commit treason. That is why most who are tried for treason are people who act in the guise of a loyal citizen, but in fact are surreptitiously acting in favor of another country. Since the CSA achieved belligerent status its arguable that its citizens who openly declared themselves as CSA citizens had been expatriated. Not a slam dunk, but at least arguable. The law on what constitutes expatriation is very thin.
Interesting, but I think the argument is as "thin" as the law. Otherwise, anybody can declare him- or herself a citizen of the Nation of Zort, fire on the US, and claim it's not treason.
 
Lee resigned from the US army on the 20th of April 1861 but that resignation didn't take effect until the 25th. However, Lee joined the rebels on the 22nd (before the resignation took effect). Technically speaking, yes: Lee broke his oath.
Good point. And that assumes that he was off the hook on the 25th by the contrivance of resigning.
 
Interesting, but I think the argument is as "thin" as the law. Otherwise, anybody can declare him- or herself a citizen of the Nation of Zort, fire on the US, and claim it's not treason.
Which is why I said the fact the CSA achieved belligerent status was an important part of the analysis. So your example is not really responsive to my argument.
 
Lee resigned from the US army on the 20th of April 1861 but that resignation didn't take effect until the 25th. However, Lee joined the rebels on the 22nd (before the resignation took effect). Technically speaking, yes: Lee broke his oath.
Was the State of Virginia in rebellion on April 22-23 when he accepted his commission as Major General of State forces? The State was preparing for secession, but the popular vote was not until late May. What if the vote turned out differently?
 
These incidents all are technicalities based on a common opinion and divisive belief among men. In our country there was an argument which arose between two opposing principles of belief, over property rights and the Will of a people under God. Take away all the vanity of airs, all the pompous insignia, rank and honor from these men, and base your perception on what the fight is about. The legalese and the way the laws were written were in contention and due to that fact of unsettled opinion it led to war. Common men with their own will and their own belief chose what side to fight on. You can add all the high-fallutin honors and plumage of previous victories, but these men were only men, regardless of their rank, serial number etc. They had a fight among them that was finally settled by significant gains, and supported by renewed laws that regenerated our freedoms. To continue in a controversy that pits high man against low man is stupid. These men were all equal and judged before God and Country as so.
Lubliner.
 
I dont think you get the point I am making. I admit its a bit legalistic, but then I am a lawyer. Since the oath used the plural to refer to the US, its as if Lee made an oath to each and every state. So how could he comply with his oath if he defended some states, and fought against others? So in a sense, Grant violated his oath when he fought against Virginia, since he swore to defend Virginia against all of its oppressors.

And I did not say secession was legal. I said the legislature voting to secede was a legally permissible act. There was no precedent at that time that said secession was illegal. If you know of any cases on that I would be interested in reading them. It was not until the Supreme Court determined in Texas v. White in 1868 determined that secession was legal. So until the Constitutional question was finally determined one way or another, State legislatures are free to legislate. But after their is a definitive ruling, then sates no longer can legally legislate in areas of settled law. Secession was simply an unsettled question in 1860.

Whether he resigned or not is irrelevant to my legal reasoning.

And I do not think Confederate traitors are heroes. I am no lost causer by any means.
The court cannot rule on an issue until it comes before it. However the court had ruled on the nature of the union and the constitution in several cases prior to the civil war that make it clear that secession (at least uni-lateral secession as done by the southern rebels) is unconstitutional.

"We the people of the United States, do ordain and establish this Constitution. Here we see the people acting as sovereigns of the whole country, and, in the language of sovereignty, establishing a Constitution by which it was their will that the State governments should be bound, and to which the State Constitutions should be made to conform. Every State Constitution is a compact made by and between the citizens of a State to govern themselves in a certain manner, and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves as to general objects in a certain manner. By this great compact however, many prerogatives were transferred to the national government, such as those of making war and peace, contracting alliances, coining money, etc. etc." – Chisholm v. Georgia, 1793

"The people made the constitution, and the people can unmake it. It is the creature of their will, and lives only by their will. But this supreme and irresistible power to make or to unmake, resides only in the whole body of the people; not in any sub-division of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated their power of repelling it." Cohen vs Virginia 1821
 
Lee violated his oath and committed treason against America. He should have been hung by the neck until dead after the war.
There is overwhelming evidence that the union was meant to be perpetual and that unilateral secession was unconstitutional.

The notes and letters we have from Madison, the father of the constitution, shows the Union was meant to be permanent.

The title of the articles of confederation AND perpetual union shows the founders desired the union to be perpetual.

There were several supreme court decisions during the antebellum era that clarified the nature of the constitution and they show that unilateral secession was unconstitutional. In fact I could find no supreme court decisions that even hinted that unilateral secession would be constitutional. https://civilwartalk.com/threads/supreme-court-cases-for-and-against-secession.170214/

Presidents Jackson's nullification proclamation during the nullification crisis.

Precedent's set by Presidents when faced with insurrection/rebellion. https://civilwartalk.com/threads/di...n-of-the-southern-states.169547/#post-2254975
 
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