Rebellion Record: a Diary of American Events: Documents and Narratives, Volume 11.
Frank Moore, Ed.

[161] any consideration, to allow those who, by our laws solemnly enacted, are made soldiers of the Union, and who have been duly enlisted, enrolled, and mustered as such soldiers — who have borne arms in behalf of this country, and who have been captured while fighting in vindication of the rights of that country, not to be treated as prisoners of war, and remain unexchanged, and in the service of those who claim them as masters; and I cannot believe that the Government of the United States will ever be found to consent to so gross a wrong.

Pardon me if I misunderstood you in supposing that your acceptance of our proposition does not in good faith mean to include all the soldiers of the Union, and that you still intend, if your acceptance is agreed to, to hold the colored soldiers of the Union unexchanged, and at labor or service, because I am informed that very lately, almost contemporaneously with this offer on your part to exchange prisoners, and which seems to include all prisoners of war, the Confederate authorities have made a declaration that the negroes heretofore held to service by owners in the States of Delaware, Maryland, and Missouri, are to be treated as prisoners of war when captured in arms in the service of the United States. Such declaration that a part of the colored soldiers of the United States were to be prisoners of war, would seem most strongly to imply that others were not to be so treated, or, in other words, that colored men from the insurrectionary States are to be held to labor and returned to their masters, if captured by the Confederate forces, while duly enrolled and mustered into, and actually in, the armies of the United States.

In the view which the Government of the United States takes of the claim made by you to the persons and services of these negroes, it is not to be supported upon any principle of national or municipal law.

Looking upon these men only as property, upon your theory of property in them, we do not see how this claim can be made, certainly not how it can be yielded. It is believed to be a well-settled rule of public international law, and a custom and part of the laws of war, that the capture of movable property vests the title to that property in the captor, and, therefore, when one belligerent gets into full possession property belonging to the subjects or citizens of the other belligerent, the owner of that property is at once divested of his title, which rests in the belligerent Government capturing and holding such possession. Upon this rule of international law all civilized nations have acted, and by it both belligerents have dealt with all property, save slaves, taken from each other during the present war.

If the Confederate forces capture a number of horses from the United States, the animals immediately are claimed to be, and, as we understand it, become the property of the Confederate authorities.

If the United States capture any movable property in the rebellion, by our regulations and laws, in conformity with international law and the laws of war, such property is turned over to our Government as its property. Therefore, if we obtain possession of that species of property known to the laws of the insurrectionary States as slaves, why should there be any doubt that that property, like any other, vests in the United States?

If the property in the slave does so vest, then the “jus disponendi,” the right of disposing of that property, rests in the United States.

Now, the United States have disposed of the property which they have acquired by capture in slaves taken by them, by giving that right of property to the man himself, to the slave, i. e., by emancipating him and declaring him free forever, so that if we have not mistaken the principles of international law and the laws of war, we have no slaves in the armies of the United States. All are free men, being made so in such a manner as we have chosen to dispose of our property in them which we acquired by capture.

Slaves being captured by us, and the right of property in them thereby vested in us, that right of property has been disposed of by us by manumitting them, as has always been the acknowledged right of the owner to do to his slave. The manner in which we dispose of our property while it is in our possession certainly cannot be questioned by you.

Nor is the case altered if the property is not actually captured in battle, but comes either voluntarily or involuntarily from the belligerent owner into the possession of the other belligerent.

I take it no one would doubt the right of the United States to a drove of Confederate mules, or a herd of Confederate cattle, which should wander or rush across the Confederate lines into the lines of the United States army. So it seems to me, treating the negro as property merely, if that piece of property passes the Confederate lines, and comes into the lines of the United States, that property is as much lost to the owner in the Confederate States as would be the mule or ox, the property of the resident of the Confederate States, which should fall into our hands.

If, therefore, the principles of international law and the laws of war used in this discussion are correctly stated, then it would seem that the deduction logically flows therefrom, in natural sequence, that the Confederate States can have no claim upon the negro soldiers captured by them from the armies of the United States, because of the former ownership of them by their citizens or subjects, and only claim such as result, under the laws of war, from their captor merely.

Do the Confederate authorities claim the right to reduce to a state of slavery free men, prisoners of war captured by them? This claim our fathers fought against under Bainbridge and Decatur, when set up by the Barbary powers