one of the great joys.

there's a lot of great things about working at shenandoah university, but one of the great joys for me is is getting to interact with historians of considerable note who have contributed much to the field over the years. historians who i've admired from afar, his who have influenced the way that i think and the next historian is one such historian i haven't met dr. paul finkelman until about 9:00 this morning, but certainly have been very, very familiar and, heavily influenced by his very, very sound insightful and really at times revolutionary. so dr. paul finkelman is

currently visiting professor marquette university school of law and he has had, needless to say, a very distinguished and continues to have a distinguished scholarly career. he is the author editor of more 50 books, has published more than 200 of you articles scholarly articles and book chapters. dr. finkelman is widely recognized as a leading expert in a variety of areas, including the american civil war. american legal history, constitutional law, slavery and law and religion the united states supreme court is quoted and cited. dr. work or mentioned him in six decisions. has lectured on human trafficking, on human rights issues. at the united nations and more than a dozen countries in. 2017 he held the fulbright chair in human rights and social justice at the university of ottawa. so please join me in giving a warm welcome to dr. paul

finkelman paul finkelman. thank you. it's a delight to be here. in case you're wondering, the thai has the people who ended slavery in the united states on it. ulysses, general sherman, general sheridan and various other united states army generals. during the civil war. i'm not going to talk a lot about slavery today. but slave obviously looms over everything we do. and it is important to understand when we think of the the war in 1861, 1865, by the way. do you know what the official for the war is, right? it is the war of the rebellion. it is not the civil war. it is not the war of southern independence. it is or the war of southern treason, depending on which side you're looking at.

it is the war of the rebellion. but the. the. can you hear me now? i'm not. which mic i'm supposed to be. how about. do i need to repeat all that, or did you get enough of it? okay, so. so one of the things to understand is that secession caused by slavery, everybody knows that in 1861, everybody knows it in 1860, when south carolina accedes and says, we are seceding because a president been elected who says that slavery should be put on the road of ultimate. now for lincoln that ultimate extinction might have been 19, 20, 1930. but for south carolina, that's way too close to 1860. we're out of here. alexander stephens, vice

president of the confederate. she says that the confederacy is created not only to preserve slavery. that is slavery is the cornerstone of the confederacy says, but also in that same which people don't ever want to talk about. he says it the cornerstone of the confederacy is also the understanding that black people are inferior to white people. and what we would today identify is white supremacy. so that is the cause of secession. secession is the cause of the civil war. the war is initially fought in sort different ideological, so that for the confederacy, it is about seceding so they can preserve slavery as the texas secession convention calls forever. and that is their goal for lincoln.

it is to preserve the union. and, of course, in a very famous letter in 1862, lincoln will say that my goal is to preserve the union. i would preserve the union by freeing none of the slaves. i would preserve the union by freeing some of the slaves. i would preserve the union by freeing all slaves. but my goal is to preserve the union. now, what's fascinating about that letter to the new york tribune is he's already written the emancipation proclamation. so the nonsense about freeing none of the slaves is simply his political argument. directed at northern, it has nothing to do with the reality. by the time lincoln that letter more than 100,000 slaves have not only been freed but are working in civilian capacities for. the united states army. he has already signed the militia act of 1862, which, for the first time since the revolution authorized, since the enlistment of blacks as soldiers in the united states army.

and so his i would free none of the slaves simply is not on the table and the goal is to free all the slaves and as he says in that letter this reflects my position as president. my personal goal is that all men everywhere can be free. okay. so that's what this war is about. but the war is of course also a civil war a conflict between neighbors, a between people who knew each other before the war. lincoln was actually kind of friendly with alex stevens when they served together for one term in congress. so this is the classic civil war and civil wars are often far more brutal than conventional wars, although not always, obviously. there's nothing more than the than german war in 1939 to 1945. and that is not a civil war. what is going on with czar putin

is not a civil war. it is an attack on another country. and it is clearly brutal. so that's the first thing i'm going to get to the law of war, because it's important. i want to make a little bit of a comment on the wonderful talk we just heard. by the way, we have not until today. but he is biography of general sheridan will be in a book series that i edited at routledge univer routledge press. so we corresponded and communicated in a number of ways. so the notion of the gingerbread war that we heard in our last talk and the notion of that you would sway a legion is by having a human chain war is conflict that will lead the law of war. and it is also a conflict in war

theory. so it may be the general scott, who had, after all, only fought as a general, the mexican war and had never really experienced the kind of war that was about to place. and he wants a gingerbread war. mcclellan didn't actually want a gingerbread. he wanted a war where he could parade around and have great parades and bands and never have to fire anything and anybody and, you know, lincoln, you know, wisely asked if he could borrow the army because mcclellan wasn't using it. and i remember know we heard a lot about soldiers letters. i remember reading a letter from a ohio officer riding home in 1864, and he says, will i vote for, you know, lincoln or will i vote for mcclellan?

and he said, i would rather vote for jefferson davis than mcclellan, because jefferson davis is an honest traitor. unlike mcclellan. and weirdly, mcclellan is also on my tail, though i don't know why. but he did win antietam and that mattered. so the alternative theory of war to the gingerbread war is by the greatest theorists of the 19th century. on war. and that, of course, is clausewitz. and clausewitz says war is thus an act of force to compel our enemy to do our will. we must the enemy powerless. that is the true aim. warfare and clouds, which his theory of war is really quite different. humane war kills more people in the war and makes it much worse. what you should go do is go and smash the enemy and destroy the

enemy and get rid of their army. get rid of their ability to fight the war. and that is the humane, because that will end the war quickly. you want to see a good example of it. you look at the second iraq war where united states destroyed, the army of saddam hussein in about ten days and, it was shock and awe. that is that is closer which in action. unfortunately the the mop in the piece never happened and took forever and took many more lives than war took. so that's one way to think about the the conflict between the gingerbread war and the theories of war. i will be talking a lot about francis today. francis lieber was born in germany in 1898. his earliest recollection in life was when he was eight and

napoleon's troops through berlin and it was the saddest day of his life because he was a patriotic german and this was horrible to see. this french army devastating prussia. he would move to the united states in the 1820s with a fresh ph.d. in mathematics from from berlin, universal city. but he would end up being a professor of political economy, which they would call political science at south carolina college, which today we is the university of south carolina. he would stay at south carolina until 1850s when he was forced, not because he was openly anti-slavery, although he despised slavery, but rather because he soft on being pro-choice. he wasn't pro-slavery enough to

teach at the university of south carolina in the 1850s, and he was out and he then went to columbia university and when the war begins, he be asked to, be a consultant, a helper to general henry halleck, who is the senior officer in the united states army. halleck in addition to his west point training, had been a lawyer after he left the army in the 1850s. and lieber is brought to into the war department to write what will become general order 100, which is known mostly today as the lieber code and the lieber code is. first carefully thought out expert offensive, deeply thoughtful, set of rules that creates the law of war. now, today the lieber code is recognizes, even though, of course, in many ways we are

beyond that. and oddly, a year after the legal lieber code you get the first geneva convention on the treatment of prisoners during wartime. so lieber is setting stage for what is today the modern law of war. somebody asked me, you know, is there a law of war? and the answer, of course there's a law of war. and much of what jonathan was talking about was how the law of war was enforced or not enforced. so that the guy stealing cherries under the lieber code, it was permissible for him to take cherries to eat because it permissible to forage. would, however, have been a crime. the lieber code to take those cherries, sell them to somebody else because a is emphatic that. while soldiers may pillage and they may bring food and horses

and whatever they need to fight the war, they may not personally profit from what they are doing. and so that is one of the rules of, the law of war that develop in the american civil war. the other is, of course, that when one talks about the mild, the gingerbread war, we often forget the massive war crimes mostly committed by confederate troops. the best example is not the burning of chambersburg, which is clearly a war crime, but rather jubal early and i'm in a hotel on jubal early road or whatever it is which is a little weird. so when, when the gettysburg campaign begins jubal early and his troops spend most of their time kidnaping free of

pennsylvania chaining them up and bringing to the south and using and his slaves because they find every free black person in pennsylvania they confine ed and bring these people back and enslave. the last time armies did that in large were caesar's legions. i mean, the show. so in a sense, what a number of confederate senior are doing are harkening to the ancient world where there was no law war. and of course, then we can think about the younger james gang, quantrell paul and the various other massacres of civil ends by these bushwhackers who are in fact adjuncts of the confederate army. so let's let me now turn i want

to give you one, one piece of the lieber code and then i want to turn to a more formal, you know, how we how do we get there. military admits of all destruction of life or of armed enemies and other persons whose destruction is incidentally unavoidable in the armed contests of the war. it allows the capturing of every armed enemy of and every enemy of importance to the hostile government or of a particular danger to a captive. it allows for the destruction of all property and the obstruction of the ways channels of traffic, travel and communicate and of all withholding sustenance or means of life from the enemy and of the appropriation of whatever an enemy's affords necessary for. the subsistence and safety of the army. but it does not allow you to

take things that are not for the subsistence. so for in sherman's famous march to the sea which of course there are different takes on that right? there's gone with the wind wind or there is the understand being that sherman's march to the sea is the greatest liberal ocean of human beings in the history of the world. until the allies march on berlin in 1944. in 1945. sherman's march to the sea. probably liberates a million people from slavery, and it destroys the heart of southern slave system. but in sherman's march across the south, many of his soldiers pillage things. they go to get food and they come back with silver or bad or paintings or furniture. and there are wagons which have this personal property that

they've stolen. sherman these soldiers executed under the lieber code, he executes his soldiers this because it is violating the new rule of war. private citizens. this is example of lieber code lieber code. private citizens no longer murdered, enslaved or carried off to distant parts and the inoffensive individual is has little disturbed in his private relations as. the commander of the hostile troops can afford to grant in the overall and demands a vigorous war. and that is partially creation of the rule law in wartime. so condemnations of war are easy to find. social critics politician ins and generals often speak out against war. the philosopher john stuart mill called it ugly thing. george clemenceau, though the

prime minister of france during, world war one, believed that war is too serious, a matter to leave to the soldiers. general smedley butler, who was twice awarded congressional medal of honor and was common down to the marines, said that war is, quote, a racket, but war is also fascinating and alluring. robert e lee remarked, it is well, war is so terrible or, we would grow too fond of it. now the history of the united states is in many ways a history of warfare. by my calculus ation about one fifth of u.s. history since the revolution has been taken up in warfare. there are major wars, of course, there are big wars, but there are also numerous military

adventures in china, mexico, nicaragua, dominican republic, the soviet. some of you may not know that during war one we invaded vladivostok, east, the pacific shores of the soviet in an attempt to march moscow to overthrow the new communist. soviet union. lebanon. grenada. kosovo libya. syria. somalia. it goes on and on and on. of america. american military. i am neither condemning nor endorsing these adventures. some of them, i think, were highly moral and worth doing. others are very problematic. but what are important to understand is, is that war is constantly part of u.s. history. i suspect, by the way, it is even more part of british history because course, britain always had a colonial war somewhere. the sun never sets on the

military doing something right that would be that would be the warfare. you know and if you want to have fun, you get a map from the the the early part of the 20th century where the british were great britain and all the colonies will be in red and can sort of see that the only place isn't red on the map are those time zones where there is no landmass or islands for the british to plant the flag. so. so war warfare is a occurrence occurrence. and that's important. understand? military conflict is also the manifest nation of politics as karl philip godfried von clausewitz succinctly put the point. war is merely the continuation of policy by another means. and mao tse tung, who understood the power of force as well, one

of his favorite stagings was, power grows out of the barrel of a. he understood these things, but he also said that politics is without bloodshed while war politics with bloodshed. just as an aside and as we watched current events since you pointed out how actually since you're dean pointed out how relevant this conference is i'm what i'm trying to figure out whether we'll be seeing kind bloodshed in the war that's currently going on within the fight to. decide who will be the speaker of the house for next couple of hours or and whether that will lead to bloodshed or not. but clearly know politics and war seem to be emerging even when there is peace. the law war aims to reduce civilian and military deaths. are diplomats, generals and

scholars who've tried to develop rules for warfare, to eliminate unnecessary violence, unnecessary and suffering, and to protect as much as possible the lives and property of non-combat agents. and of course, we've just heard a lecture about the tension that within a war. the law of war has also incorporated rules to protect the lives of captured soldiers and regulate their treatment, to ban the use of certain kinds of weapons such as poison or poison gas, small explosive projectiles, mustard gas or serrated bayonets. because these things are inhuman implements, even wartime. the law of war has developed to rein in the horror of war. sherman succinctly put it right. war is hell.

but the law war is designed to reduce that helplessness as much as possible. but ironically these humanitarian restraints have condoned destruction of property, the killing of large numbers of human beings. and in the end we come back to the problem that. the war of war. the law of war like war itself is about taking human lives as c scott sustained fully and brilliantly put it in his portrayal of george patton in the movie. no -- ever won a war by dying for his country. he won it by making the other poor dumb -- die for his country. the and that is part of the can i say, this kind of this language at this university? i hope so. because it's important. the war of law is about regulating the carnage,

controlling the and reducing the horror and limiting the destruction. but the law of war there neither prevents nor condemns, per se. and thus condones, or at least allows. the killing of large numbers of people. modern law of war begins 1863, when the lieber code is issued by abraham lincoln and the league lieber code becomes the law of war. thousands of copies. the lieber code the all hundred and 56 provisions of it are 157, depending on how you count them. the the thousand copies of the letter lieber code are and given to almost every officer in the united army during the war. so the officers have their hands. what the rules are and so that

leads, of course, to to some of the questions about that we heard today after after the lieber code is put in place. why are some of these officers doing things which seem to be in violation of the lieber code and why aren't they cracking down on soldier who are violating the code. and the answer, of course, is always because in what people call the fog of war lots of things happened that nobody knows about nobody's there to to implement. the code has a very special and secure place in the history of international efforts to use law limit war. the military historian sir adam roberts writes that they were responses to the wars of their time and to developments, science and technology.

they seen as the foundation, stone, stones of the modern law of war. this of course, is the lieber code and the geneva convention, which is implemented here year after the lieber code and francis lieber is properly recognized along henry dunant, who drafted the geneva code as the people who begin a careful law of war. now no scholar would argue that there was no law of war before the war began or before the lieber code. in fact, there were many rules of war in place. and one of the things that's fascinating about the law of war is both the confederate army and the united states army has a military code that had been taught at west point since 1806. and so when we see things like

jubal early troops kidnap people and chaining them up and making into slaves. he is violating the code that he learned at west point and the code that the confer government had endorsed for its army. so you didn't need a new law of war to understand that we do not enslave noncombatants and we don't enslave captured soldiers. so as early as 1621 king gustavus of sweden issues rule for his army. he is about to engage in war. what is today lithuania with, a russian army. so he's going cross over and among things his rule for the is it limits assaults, women, pillaging, burning churches or hospitals. so some some from at least in

the 17th century, there is a law war that says these are things armies can't do. now, of course, the problem is what happens if the other army is putting its cannon inside a church. then you might have to bomb the church, you might have to candidate the church, you might to take it down. so again, the law of war best when both sides the rules and there have been examples of that. you know where where where neither side is is using the hospital or the church or a mosque to or a synagogue or a temple to hide their military. if both sides are not doing that, then you're not going to be destroying these places places. francis lieber is asked by

halleck. i said to write to the lieber code. it is implemented april 24th, 1863, and the document is approved by the president of the united states. now, of course, lincoln is a good lawyer. he's a very good lawyer. so he probably read the code carefully before approving it. and it's, as i said to every in the united states army, quickly, just to follow for a moment. so, lieber is born in 1798, his earliest is napoleon's troops marching for berlin in 1806 at age eight at age 17. he enlists in the army to fight napoleon once again. and weirdly, both lieber and klausen which are fighting the battles of namur and waterloo in 1815, lieber is shot and

severely wounded in war at battle of waterloo and left on the field for dead. but somehow, and ultimately is. in 1827, he moves to the united states. by 1835, he is at the university of carolina. he had expected he would have had a position teaching at one of the more prestigious universities, harvard yale, columbia. that doesn't happen in part because he's an immigrant. he speaks with a german accent and in part because he's german and not an american. so they haven't yet recognized the value of foreign scholars. that will come later and at the university, at south carolina college, which is today university of south carolina. he struggles to deal with world that he's in. he does not instance believe in slavery, but also knows that if he condemns slavery, he will be

fired. and if he supports slavery, all of his friends in new england, in new york will stop to him. so he's a real dilemma. and so what he does is pretty much says nothing about slavery for 20 years. he simply hides it as a professor at the college. he is expected to maintain that certain kind of lifestyle and as you would all realize you thought about it in the 19th century that kind of lifestyle requires lots of household help. there's no electricity there's no indoor plumbing. there's refrigeration. dinner means somebody goes to the market either every day or, every other day to buy the fresh food that you're going to serve. you have to have lots of health and health. lieber solves problem initially by importing his nieces germany and this is a pretty good deal for them. you know these young teenage

girls come, they work for for for uncle francis a year. they get some american money. they might learn some english. and then they go home with a dowry and they can get married and live happily ever after in in germany. but after about two years of this, he is pulled aside by the authorities at the college, told that white women don't do this kind of work even if they're your nieces from another country. and so whether he likes it or not, ends up owning a few slaves. this is an example throughout the late 18th century until the civil. this is the example of the enormous corruption that slavery brings. no matter how much you want to get from it. it's really very hard to do in new england, for example, there are people who organize to only use maple sugar rather than the

kind of sugar that you get from the caribbean because they don't want to buy sugar from slave owners and they don't want wear cotton because it's produced by slaves. so they wear wool and linen. but these are very small number of people, members of congress who were anti-slavery in those days. congress only meets for a few months every so they rent from a boardinghouse. and initially there with the fact that they're in a boarding house they're being served by slaves every day. slavery is everywhere. finally, by the 1850s, there are sort of some free labor boarding houses where where people realize, hey, we can fill our boardinghouse representatives from these weird states like ohio and massachusetts and new hampshire and vermont where and new york where they don't believe in slavery. so you have free black labor working in the and that's where

the. antislavery members the senate and the house board as i said by the 1850s you can longer be neutral on slavery. labor can't hide from it. and so he is literally out of the the college and he moves to new york and now as a very famous political theorist who's published a lot. lieber is given a position at columbia university that he was not even considered for when first came to the united states. and then the war begins. lieber has spent. almost 25 years in the heart of the confederacy. the heart of the american slave ocracy. his oldest son enlists the confederate army and his two younger sons fight for the united states.

when one talks about, you know, one one brother wore blue, one brother wore gray. this is a family where that happens. his oldest is killed at the battle williamsburg. one of his other sons, hamilton, loses an arm. note, by the way that he names his son hamilton. i mean that tells you a lot about where lieber's at. as a german who has become a naturalized american citizen, hamilton loses an. his other son survives the war unscathed. norman and he ends the war as a lieutenant so for labor the of war is personal because it involves own children. the war has traditionally been known to have killed. 620,000 soldiers. a few years ago, a historian who

counts things say claimed that was really more like 750,000. but it's a weird kind of counting because what this article which some people have just bought without thinking very clearly as this article counts, all the people who subsequently died after the war from a wound they got during the war and to my way of thinking it's to figure out how you calculate that in terms of the war itself although obviously the lingering effects the war are real. there is a reason why mississippi is the poorest state in the united states. more than 150 years after the civil war ended, it's because mississippi is devastated. there's reasons why alabama. until very recently was that poor as well? because in some places in the

deep south, there's never recovery from the war. it was a devastating war. i learned this morning that the estimate is that there 50,000 civilian deaths and on one hand, that's a lot of people. and on the other hand, when you think about the civilian deaths in modern it's not a lot of people. and these are again the kinds of calculations we have think about. and many of these civilian deaths are caused by the war and how many are caused by other things during the war is not entirely clear. so. in the war. by the way, the quantitative historian jay david hacker, who makes his argument, says direct targeting the civilian population, the civil war

appears to have been a rare exception rather than the rule. and i think that is true, that it not a war directed at civilians in the way for example that world war two will be a war where in both sides people are directing the war at civilians. so the nazis clearly simply want to murder many people as they can. and they're effective at it. the british air force returns the favor in in bombing parts of germany. the united states literally levels japanese. as sherman would have noted. war is hell. but the civil war, as best i can tell, and i'm not military historian, although one can't help but but read a lot of military history to understand this, that the civil war is not a war where there is a great deal of contact between armies

and civilians. yes, army is located in a town. it is here it is. there it is somewhere and there is some contact. but the armies are also just kind of, you know, moving around, sleeping in tents, being, being where they are. and it's not the same thing as, let us say. the u.s. military sitting in cities in iraq or afghanistan for 20 years, where there's going to be a lot day to day, direct contact civilians. and again, if you look at modern war, what we see is the army from somewhere else is not only inside, but they're actually employing people in the cities to work for the army. so, a, there's a very different kind relationship between civilians and and and and the

military today than there was then. now, before the in the invention of the law of war, there are basically no rules. prisoners of war captured civilians were executed tortured, enslaved city, were surrounded by armies and told surrender. and if the city did not surrender, then they would be plunder and burned to the ground and people would be carried off as slaves. rome course is a giant nation of slavery. slavery is everywhere in rome, and those slaves are coming from captured soldiers, from around the known world of rome, which is pretty large, it's it's, you know, all of mediterranean basin all the way up to england into

what is today germany, into. lots of people to enslave and in battle. if you are on enough to be disarmed in battle and roman soldier sticks a sword your throat and says you can come back to rome as my slave or i will kill you. which do you prefer? and by the way, the other side defeats the roman soldier. you will come back to goal or wherever i'm from and, you will be my slave or i can kill you. that is the rule of war. at the time. and there is there is no limitation on what you can do to the enemy. captured people, civilians. so jurors. women. children everybody are paraded through the streets of rome in the ancient world and in other places as well. i used rome as an example because they're the most successful at. but everybody's doing it.

there's no you know there's no limitation limitation. the brutality of war in the ancient world was modified to some extent by medieval concepts of a just war. but even as the medieval world produces the notion of, a just war, there still massive slaughter, civilians, enslavement or simply murder of the enemy. if capture the enemy, remain. when the portuguese and the spanish begin, move into what is first africa with henry the navigator. you know, circumnavigating the tip of africa. what does he come back with from africa slaves. and when first goes to the caribbean he comes back with carib indians, which he gives as a present to queen isabella

saying, i found this whole island full people like an enslaved here's some for you slavery is a vibrant institution in europe well into the 5000s particularly on the mediterranean side where you have the opposite unity. if you are on the north rim of the mediterranean to enslave from the southern rim and if you are on the southern rim, can enslave christians from the northern rim. so you're enslaving your own people. you're you're enslaving other people. and of course, paradoxically, as i mentioned at the very beginning of this talk, the scholars of warfare at time and since have always said that the more brute all the war, the more

unrestrained in the war, the more humane the war be, because it would end more quickly. and one might make the argument that had the united army understood what the war against the confederacy was all about, it would have been a shorter war because there wouldn't have been anybody not wanting to do what had to be done, which is in a sense to destroy the ability of the other side to make war. and you do that by destroying their infrastructure, not killing their civilians, and that that's where that's where labor becomes so important, because what says is, is that the you cannot kill civilians and you cannot take their property, except when you need to for purpose of the war. however, lieber code also says that slavery is completely unacceptable and therefore you

can free slaves as you march through the south, which of course the army does. and so the united army becomes a great army of liberation. so the first law of war question comes at the very beginning of combat with the battle of bull run, because at the battle of bull run, the united states captures confederate soldiers and the confederates capture united states soldiers. so if secession is illegal, which of course, is the position in the united states from day one, then the confederate army is not an army of another nation. the confederate army is, in fact, a terror research organization, a organized nation of pirates, organization of bushwhackers. it is not a legitimate.

and so the question becomes how do you treat confederate p.o.w.s and lieber, who is not yet working for the u.s. government, but is still at columbia, writes a an open letter in new york times dealing with the question of confederate prisoners. and this the beginning of the law of war and what lieber says that you have to recognize the reality of war that is it doesn't matter whether we recognize the legitimacy of the confederate government. what matters is we recognize that there is a war going on and. therefore, you should treat the prisoners humanely, as of war. rather than shooting them or hanging them. because after if they're pirates, if they're if not legitimate, if they're brigands,

then you treat them accordingly. and what lieber does is make this analogy when a highway robber asks for purse and i being unarmed, consider it expedient to give it, which of course, he would write. i certainly recognize the robber, but it is no more than a recognition of a fact. so he has not recognized that the robber has right to take my purse, but merely he's got a gun and i don't. and so i'm going to do it. and so that's how lieber proposes it. the other thing, course lieber says, which again goes directly to the development of the law of war, is that if we kill their prisoners they will kill our prisoners. and. or maybe i should reverse that. if we kill the prisoners of them that we hold, then they will kill our soldiers. they hold as prisoners. and so -- for tat, you don't you

don't you don't kill prisoners. by the way, the lieber code when it's implemented says this very clearly that cannot kill prisoners of war says that you can exchange of war but it also says you do not have to exchange prisoners of war. and what will happen during the american civil war is when the united states, starting in 1860, in in august of 1862, the united states begins to train black soldiers. the the first five regiments of black soldiers do not include the famous glory brigade from massachusetts. the glory brigade, the is is not a the 54th massachusetts is not the first black regiment. it is the first black regiment from the north. by this time, they were three black regiments have been trained in south carolina.

general david hunter is the one who is training them and he's dealing with south carolina. so it doesn't surprise me when he comes to to virginia. he he has been dealing in some ways with a much more recalcitrant than virginia. and so he's bringing his experience him. so they train three regiments on the silk of south carolina and. two regiments are trained in louisiana. so when this happens the. confederacy refuses to exchange prisoners of war. if they are black. now, in ways this strikes me as weird and it illustrates the the danger of allowing your ideology to work against you if african-americans are inferior

white soldiers, which is the official policy, the confederacy, then one would have thought that the confederacy say we are happy to send black captured soldiers who are not as good as the whites, southern soldiers that we're going to get back. they should have been anxious to do that, but instead they the confederate position is we will not exchange black soldiers because we do not consider them to be legitimately soldiers. and general grant says, fine, there will be no more prisoner exchanges for the rest of the war until you change your mind. and there any. and that, of course, leads to enormous hardships for. prisoners on both sides. but grant's position is really quite simple. simple men in blue uniforms are men in blue uniforms. and you cannot discriminate as are then the confederates say we are going to enslave captured black soldiers and grant to that

is forever. u.s. army showed you that you turned into a slave. we will shoot two confederate captured prisoners of war. that stops policy immediately. but that's also an example of the brutality of war that you have to you have implement during the war and again comes up. i love. having you go first because i learned so much and it sort of sets it up for some of this. so during the war, the goal of the war changes, the aims of the war change, the war begins. the united states perspective simply to preserve the union. but of course very quickly, it becomes a war to end slavery because within a month of the war beginning,.

three slaves on the coast of virginia run away to a fortress where they taken in. and the next day in what might be the most surreal moment of the american war, a confederate major shows up at fortress monroe with a white flag and says, i am here to recover the fugitive slaves of my colonel. and of course, the men at fortress monroe is benjamin butler, who i would argue, despite what the weiners in new orleans might complain about. i would argue, is one of the single most important generals in the war not because. he's a great tactician because he isn't, but because he out the problem, because he's a very good lawyer. he spends the whole he brought a trunk of law books with them. he spends the whole night reading international law.

and the next day when the major comes to get to have a conversation john butler says come tomorrow you know i've got to think about this. he says that i'm these slaves were being used to build fortifications and they are contrabands of war no different than a gun you left on the battlefield no different than a cannon no different than the horse. and so i cannot return contrabands of war to you. and then he says and but the major says, what about the fugitive law and the fugitive slave clause of the constitution? and butler says well, one of the in felicity's of your page i love this one of the felicity's of your position is that the fugitive slave law does not extend to nations which virginia pretends to be. but butler being a good lawyer.

oh knows there's always room for negotiation right. you always settle the case. so he. however, if your colonel come here and swear an oath of allegiance to the united states of. and i even have a blue uniform for him if he wants to us, i'm happy to give him his slaves back. that doesn't happen. lincoln, from all evidence we have was almost ready to do in the white house over this policy. he refers to it as general butler's fugitive slave law. and it solves the of slavery for the first year of the war. it doesn't make the united states an anti-slavery nation yet. so it is not threatening slavery in kentucky or maryland or missouri. you know, during this period, you know, a group of ministers comes to lincoln and says you'll

have god on your side if you free the slaves. and he says, i'd like to free the slaves out. and i'd i'd like to have got on my side. but i need kentucky and and that, of course, is true true. but by the beginning of the summer of 1862, this has changed. we all think of the emancipate proclamation it issued right after antietam as a major element in the war and a major element in the law of war. because now the law of war that you can free slaves but it actually much earlier than that when. first passes a law to have compensated emancipation for slaves in the district of columbia providing money for slave owners there because of course slaves are property so you can't take property without compensation because the district of columbia is part of the united states. but course the payment is much

less than it might have been a few years earlier, because value has gone down tremendously. but so you abolished slavery, the district of columbia. you abolish slavery in the federal territories. you pass a law which makes it crime. this again, the law of war. it makes it a crime for a u.s. army officer to practice paid in the return of a fugitive slave. then introduced the emancipation proclamation. and by the time him, he is inaugurated for a second time, which is when the law of when the war really is changed. he reshapes the notion of the war not as a war for union, but as what we would call a good war as a just war as a war where and this, again, is what heard soldiers saying, you know, they they changed their mind when they see what it is that they're

destroying. and so lincoln changes the nature of the war from preserving union to in a sense america regaining its purpose as a nation and its humanity. if wills that the war continue until all the wealth piled up by the bonds means 250 years of unrequited toil shall be sunk. and until every drop of blood drawn by the last shall be paid for by another drawn by the sword, as it was said, 3000 years ago. so still, it must be said the judgment of the lord, our true and righteous together. and so he has changed. the civil war to a war about recovering the essence, the declaration of independence. this of course begins with the gettysburg address and.

so the law of war emerges as law to transport to the united states from fighting a war about politics, secession to the war, and the law of war, changes by, saying that there are things you cannot do, war you cannot steal people's beds. you cannot steal their brass bed. you cannot steal their silverware. you can take their food. but one of the fascinating is, is that no soldier may, from what they do on the other side. and here's where we need to end on the other, what we see is that there is a significant amount of truly appalled treatment by the confederacy against black u.s. troops and white officer as you command

those troops. so at fort surrendering blacks are shot. some of them are mutilated. some of are thrown into graves. alive and buried alive. and when the states complains about this and the u.s. and the confederacy or community waiting all this time, the united states complains about this. jefferson davis does nothing it. the secretary of war does nothing about it. the secretary of war, who is archibald campbell, who had been a supreme court before the war, does nothing about and robert e lee does not reprimand and his generals for this kind of behavior. he says nothing. and so what we see at fort pillow and what we see in enslavement of black troops, what see in other places is a complete digital oration of the

law of not the lieber code, but under the official military code of the army that these officers had learned when they had gone to west point. so i am out of time. i only have about 30 more pages that i wanted to give you. do i have time to take a question even though i because you told me you're a disciplinarian. so i to be sure. yes. my question in terms of the so when it comes out in 1963. yeah in stages. do you think you're saying sorry? did the confederacy have its own version of it? did they recognize it? how so? so what happens is the lieber code implemented confederates. obviously find out about it because it's published and they probably, you know, find copies of it from from captured u.s. soldiers. the lieber code course does not apply to the confederacy, but the united states makes it clear

that we will hold the confederate c to the rules of war in the lieber code. now there's a certain kind of arrogance of that, right? you know, you can't the enemy, you got to obey our laws. but but the confederates are on notice that this will happen. one person who obviously never gets the news of the noticed is the commandant at andersonville who will be properly executed for war crimes. now his is a disaster and if one we're talking about, you know, a fair trial, you might say he didn't get one. but it's also the first war crimes trial in history of the world. and a meaningful way. and no one knows quite how to do it. but it is clear that what the what happens the andersonville is a calculated desire to kill

u.s. troops. by the way, the camp is being by really simple example. the only water supply in andersonville is a is a stream running andersonville. there is a confederate camp upstream which uses that stream as their basic latrine. so all of the water the prisoners are drinking is contaminated. and most them are dying because of this. and the only fresh water is a little tiny stream of fresh water in the middle of the creek. and. henry wirtz, the commander, has wires on either side of. this. and if a soldier reaches over, get fresh water. he shot for trying escape. so so that that that that becomes law of war. but the confederates are on those. but the reality is, if the confederacy had followed its own

rules from 1806, there would have been a lot less bloodshed. chambersburg not have been burned. one, by the way, one of the one of the aspects of the lieber code is you cannot destroy private property for revenge. now, this leads to interesting questions when you're dealing with bushwhackers and whether you're burning a 60 year old possessions right. but the answer would be that this isn't revenge against her. this isn't revenge is for her acts, not for something. in other words, you can't punish because of chambersburg. you can punish her for the acts that she committed. now, these are these are hard to to pass especially in the fog of war. another question. yes. did the. in the mike johnson sway gen

general sheridan is riding the general sheridan is riding with the meek right now. does the lieber code predate. i'm not sure if it was formal or. informal. naval of war. i know the lincoln year was sunk in world war two by the germans. the as many people off of it as possible that were at sea because the commander was following. that would be the jewels sea that has been in since man started sailing. well, don't think it would be since man started sailing because certainly roman galleys might not have done that. but but by by the time of world war one and certainly by the time of world war two, there are very geneva conventions, which germany was a signatory. and by the way, one of the

things that's fascinating, despite the unspeakable horrors of the nazi regime and of the german officers who were professional military men, some of whom would later be hanged after nuremberg despite their unspeakable things, include ing, killing thousands and thousands of soviet troops who were captured and, setting them up for slave labor. the germans pretty good about following the geneva convention with british and american and canadian, in part because we had a lot of their troops, but also because these generals were were accepted. then on other hand, there are a fair number examples in world war two of submarines, ships and then surfacing and machine gunning the people were trying to survive. well, because germany issued

after the soviets said that they couldn't do if they had to. yes. one more question. where in the back, because the mikes there. yeah, it is. and so you are talking about just how the rules of law from like the civil war like set a precedent for just kind of like what we know today. how have you seen the enforceability of the rule of law like change over time especially with like the geneva connection convention world war one world war two the the creation the u.n. creation of the icc. like all of those things, like how you seen the enforceability. okay. that's i know it's a loaded. i'm so sorry. no, it's not a loaded question. i just need another hour. but. but, but, but. but, but, but. but here would be think the quick answer in some ways is the law of actually works. so for example following the

again horrendous barbaric treatment in the wars which of what used to be yugoslavia we have had war criminals prosecuted jailed for war crimes against humanity on both sides and properly so. so where there is a the power of the world community to actually act, you can do it now. i, i will display my, my, you know, political views here. i don't think that we will be able to prosecute vladimir putin for war crimes or his generals, although they surely deserve it. they have violated many, many rules of war, including at the most simple level kidnaping,

large numbers of children and bringing them back to mother russia, to to be auctioned off to the highest bidder or however they're distributing them. these these are war crimes. these are crimes that at nuremberg and afterwards were hanged for. we don't hang people in international law, but these are these are crimes for which people should be put in a concrete box for a really, really long time. i don't expect that to happen because what however, his aggression in ukraine ends it's probably not going to be with him seized and arrested and tried in the international courts, but i'm happily be proven wrong. thank you.