What does hunting down fugitive slaves in Pennsylvania have to do with the "heat of that battle?" What does seizing free born blacks have to do with the heat of the battle. Absolutely nothing.
Nor does shooting, dismembering, or castrating capture soldiers AFTER the battle was over, which Confederate troops did (Although I do not think Lees soldiers were ever accused of mutilations) or enslaving captured US soldier who were black AFTER the battle was over?
My Southmayd talks like a combat veteran, and said earlier he had two tours in S.E. Asia. Surely he knows the difference between the heat of the battle and after the enemy has surrendered and been disarmed? Surely he knows the proper way to treat a POW. So, why would he imagine it was different in the 1860s? We condemned North Vietnam for mistreating our POWs and the Japanese for using POWs as slave labor. Why won't Mr. Southmayd apply the same principles the Confederacy?
----
Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
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From: Jeff Southmayd <[log in to unmask]>
To: [log in to unmask]
Sent: Friday, December 14, 2012 10:44 PM
Subject: Re: [VA-HIST] Was Lee legally responsible for the actions of his soldiers?
Interesting analysis. Those who have been in harms way in the heat of battle sometimes have to rely on their own concept of survival first ahead of statutes by beaurocarteswho think up these theories while sitting behind desks. I wonder if you have any experience in that regard that is part of your analysis?
JDS
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> Date: Fri, 14 Dec 2012 16:59:50 +0000
> From: [log in to unmask]
> Subject: Was Lee legally responsible for the actions of his soldiers?
> To: [log in to unmask]
>
> Mr. Southmayd has suggested that General Lee was not legally responsible for the actions of his soldiers. This turns out to be an interesting claim. At first glance, the claim is obviously in error, since under military law, "Command Responsibility" extends up the military chain of command to all officers aware of infractions. By this reasoning, if the actions of Lee's soldiers were criminal, Lee bears clear legal responsibility for them.
>
> However, the legal doctrine of Command Responsibility was not fully articulated until 1907, in the Hague conventions of that year. An important earlier antecedent was the "Lieber Code" of 1863, established by President Lincoln in response to the decisions of Confederate authorities to treat captured black soldiers radically differently from white, and to re-enslave (or just enslave) captured blacks. The Lieber code explicitly forbade the killing of prisoners of war, and established ethical standards for treatment of civilian populations. In the final years of the war, the Code provided the legal basis for prosecutions of southern soldiers for what we would not call "war crimes."
>
> But did the Lieber Code extend to Lee and his soldiers? Pretty clearly, northern civilian and military officers serving as judges believed that it did, since they successfully prosecuted southern soldiers for violating them. And of course, if it did, then pretty clearly Lee bears both moral and legal responsibility for those actions by his soldiers which violated the Code. Here, the issue gets mixed up in the question of the legality of secession. I find Lincoln's constitutional argument--the man was, after all, a very fine lawyer--that unilateral secession is illegal and unconstitutional to be compelling. If that is so, then the law of 1863 did extend to Lee and his soldiers, and Lee is thus both morally and legally accountable.
>
> Our larger conversation has largely turned on moral arguments, and Mr. Southmayd is correct to remind us that law and morality are not always the same thing. However, on closer inspection, in this instance they are quite close. General Lee could properly have been held legally accountable for the crimes of his soldiers. That he was not is a reflection of the prudential restraint of Northern authorities, but not on Lee's moral and legal culpability.
>
> All best wishes,
> Kevin
> ___________________________
> Kevin R. Hardwick
> Associate Professor
> Department of History, MSC 8001
> James Madison University
> Harrisonburg, Virginia 22807
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