Critics of things Confederate these days love to throw around the “T word” (treason). One hears all the time, “Confederate were traitors, blah, blah, blah.” It was not always so.

After the war, units on both sides held reunions. During Reconstruction and shortly thereafter, these were sometimes bitter partisan affairs. By the 1870s and 1880s, passions had cooled to the point that the veterans had begun to hold joint reunions. Union and Confederate veterans came together under a gentlemen’s agreement. Union veterans never admitted that they had done anything wrong. Confederate veterans downplayed slavery. Both sides would focus on the bravery of the men on both sides. Confederate veterans would admit that it was just as well that the Union had prevailed and that they were proud and happy to be part of a reunited country. In this way, the veterans of both sides who actually fought achieved sectional reconciliation.

Two examples of this reconciliation will suffice. Union veteran Joshua Lawrence Chamberlain, whose division presided over the surrendering of arms by the Confederate Army of Northern Virginia at Appomattox, ordered his troops to salute the surrendering Confederates. Chamberlain described his feelings on the occasion this way:

The momentous meaning of this occasion impressed me deeply. I resolved to mark it by some token of recognition, which could be no other than a salute of arms. . . . Before us in proud humiliation stood the embodiment of manhood: men whom neither toils and sufferings, nor the fact of death, nor disaster, nor hopelessness could bend from their resolve; standing before us now, thin, worn, and famished, but erect, and with eyes looking level into ours, waking memories that bound us together as no other bond;—was not such manhood to be welcomed back into a Union so tested and assured?

Chamberlain concluded the passage with an anecdote demonstrating the benefit of his magnanimous approach. An unnamed (but allegedly well-known) Confederate officer said after the surrender ceremony, “Now that is my flag (pointing to the flag of the Union), and I will prove myself as worthy as any of you.”

President William McKinley, a Union army veteran, in a speech before the Georgia legislature in December 1898, said:

Every soldier’s grave made during our unfortunate Civil War is a tribute to American valor. [Applause.] … The time has now come, in the evolution of sentiment and feeling under the providence of God, when in the spirit of fraternity we should share with you in the care of the graves of the Confederate soldiers. [Tremendous applause and long-continued cheering.] The cordial feeling now happily existing between the North and South prompts this gracious act, and if it needed further justification, it is found in the gallant loyalty to the Union and the flag so conspicuously shown in the year just past by the sons and grandsons of these heroic dead. [Tremendous applause.]

These Union veterans were more interested in solidifying the Union than casting aspersions. Today’s critics of the Confederates, apparently more interested in self-righteousness than national unity, are attempting to be ideologically purer than the Union veterans themselves, by wielding the T-word where actual veterans did not.

A Short History of Treason

In ancient Rome, traitors were thrown from the Tarpeian Rock. A Vestal Virgin named Tarpeia betrayed the Roman Republic to the Sabines by allowing them access to the citadel. Romans had reason to expect the usual loyalty from Tarpeia. As a Vestal Virgin, she held one of the most honorable offices a Roman woman could hold. Instead, she used her position not to defend Rome, but to betray Rome. The Sabines allegedly crushed her to death on the rock that would bear her name, and from that point onwards, traitors to Rome were thrown from the top of the Tarpeian Rock.

In medieval England, Parliament defined treason. In 25 Edward III cap. 2 (1351), they declared “When a Man doth compass or imagine the Death of our Lord the King, or of our Lady his Queen or of their eldest Son and Heir… [that] ought to be judged treason.” In the feudal relationships of Medieval England, the king owed the subject protection, and in exchange the subject owed the king loyalty.

Constitution of the United States, in turn, defined treason. In Article III, Section 3, Clause 1: “treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” Levying war against the states is treason.

A Theory of Treason

This evolution established the relationship between the expectation of loyalty, and in exchange, protection. The Virginia Constitution of June 1776 announced Virginia secession from the British Empire, inter alia, for George III “declaring us out of his allegiance and protection.” Thus, when the sovereign denied protection to the citizen, the citizen could renounce his loyalty to the sovereign.

Using one’s status as apparently loyal to gain an advantage is inappropriate as well. Perfidy in international law means appearing to be one thing in order to gain protections of that status while in fact being another thing. Appearing to surrender in order to get enemy soldiers to come forward to search and process the prisoners and when suddenly the “surrendering soldiers” change status back to combatant is an example of perfidy. Benedict Arnold, the most famous traitor in American history, was not hated for changing sides. Most of the leaders of the Revolution had changed sides, but they had done so overtly, first collectively through the Declaration of Independence and personally by changing uniforms. Arnold was reviled not because he changed sides, but because he had changed sides while still appearing to be loyal to the Patriot cause, Arnold used his apparent loyalty to gain access to military secrets and subvert Patriot defensive positions.

In 1861, the peoples of the Confederate states openly declared themselves out of the Union, absolving them of any appearance of loyalty to the Union. Each state adopted and published its secession declaration. Jefferson Davis on leaving the Senate said this:

A State finding herself in the condition in which Mississippi has judged she is, in which her safety requires that she should provide for the maintenance of her rights out of the Union, surrenders all the benefits, (and they are known to be many,) deprives herself of the advantages, (they are known to be great,) severs all the ties of affection, (and they are close and enduring,) which have bound her to the Union; and thus divesting herself of every benefit, taking upon herself every burden, she claims to be exempt from any power to execute the laws of the United States within her limits.

Each southern state declared to the world that she was surrendering the benefits of membership in the Union and assuming all the rights and burdens of independence.

The War to Prevent Southern Independence

If we proceed to the War to Prevent Southern Independence, some interesting observations come to light. No northerner would open himself to injury from perfidy by trusting a Confederate soldier in a cadet grey uniform. The Union soldiers knew the soldiers in grey had renounced their membership in the Union. Thus the Confederates never committed nor were never charged with perfidy. The case was different on the other side, however.

The Union position in that war was that the southern states were still in the Union. Lincoln had argued that the seceded states were still in the Union and insisted in his declaration of April 1861 that it was merely that “combinations too powerful to be suppressed by the ordinary course of judicial proceedings” had taken power in seven of the states. Of course, this is a ludicrous in terms of constitutional theory. The “combinations” Lincoln spoke of were the peoples of the several states, states Lincoln said were still in the Union. Thus, from the federal perspective, the seceded states were still in the Union and their citizens entitled to the privileges and protections the federal government owed to its citizens.

Southern civilians had reason to expect protection of themselves and their private property from Union soldiers. Instead, Union soldiers seized (without payment) food, livestock and other property from southern civilians. They wantonly destroyed, in violation of the Law of Armed Conflict, livestock and foodstuffs of civilians. They stole private property of no military value from southern civilians whose loyalty they claimed and to whom the Union rightfully owed protection.

Lest anyone doubt that the federal government and its northern allies were levying war against states in violation of the Constitution, the federal authorities during the war and after its conclusion, overthrew eleven state governments, denied the vote of the citizens of those states, denied (in a direct violation of Article I, Section 2 of the Constitution) their senators seats in the Senate, ordered them to draft new state constitutions, and informed them that they would be re-admitted to the Union only after they had ratified the XIV Amendment. All of these acts were unconstitutional. These acts amounted to waging war against the states of Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Tennessee and Texas and the peoples thereof. In every case, the elected state governments were overthrown and they were replaced by appointed military governors in plain violation of Article IV, Section 2 of the United States Constitution. Levying war on a state that is still in the Union is the very definition of treason.

This is one of those problems that arise because Lincoln acted antidemocratically and unconstitutionally. Lincoln could have recognized the independence of the seceded states, but this would have diminished his power. Lincoln could have respected the limitation the Constitution placed on the federal government. Instead, Lincoln said, “You southern states are still in the Union and we are going to wage war on you.” This was an antidemocratic unconstitutional act of violence. Those supporting that effort were committing treason.

At the end of conflict, the terms on the table were to stop fighting, give up on secession, accept the abolition of slavery, and resume civilian life. The post-reconstruction gentleman’s agreement between combatants was as follows: acknowledge the results of the war (slavery was dead, and maybe secession as well), acknowledge the bravery of the both sides, and get on with being Americans. Southerners for a century lived by that agreement.

By the late nineteenth century, ex-Confederates declined to accuse their opponents of anything really evil in exchange for the same privilege in return. Then came the radical neo-abolitionists. They have introduced treason-word. If they wish to throw around the treason word, so be it. Union soldiers were the traitors in that conflict. They waged war against states they themselves said were “in the Union.” Thus, the traitors in that conflict were the ones wearing blue. We would do well to remind today’s cultural Taliban of that.