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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