Doc. 29. the Exchange of prisoners.
Commissioner Ould's statement.
From the date of the cartel until July, 1863, the Confederate authorities held the excess of prisoners. During the interval deliveries were made as fast as the Federal Government furnished transportation. Indeed, upon more than one occasion, I urged the Federal authorities to send increased means of transportation. As ready as the enemy always has been to bring false accusations against us, it has never been alleged that we failed or neglected to make prompt deliveries of prisoners who were not under charges, when we held the excess. On the other hand, during the same time, the cartel was openly and notoriously violated by the Federal authorities. Officers and men were kept in cruel confinement, sometimes in irons or doomed cells, without charges or trial.
In July, 1863, the enemy, for the first time since the adoption of the cartel, held the excess of prisoners. As soon as the fact was ascertained, whenever a delivery was made by the Federal authorities, they demanded an equal number in return. I endeavored frequently to obtain from the Federal agent of exchange a distinct avowal of the intentions of his Government as to the delivery of prisoners, but in vain. At length, on the twentieth of October, 1863, I addressed to Brigadier-General Meredith the following letter, to wit:
sir: More than a month ago I asked your acquiescence in a proposition that all officers and soldiers on both sides should be released in conformity with the provisions of the cartel. In order to obviate the difficulties between us, I suggested that all officers and men on both sides should be released unless they were subject to charges; in which event the opposite Government should have the right of holding one or more hostages, if the retention was not justified. You stated to me in conversation that this proposition was very fair, and that you would ask the consent of your Government to it.As usual, you have as yet made no response. I tell you frankly I do not expect any. Perhaps you may disappoint me, and tell me that you reject or accept the proposition. I write this letter for the purpose of bringing to your recollection my proposition, and of dissipating the idea that seems to have been purposely encouraged by your public papers, that the Confederate Government has refused or objected to a system of exchange.
In order to avoid any mistake in that direction, I now propose that all officers and men on both sides be released in conformity with the provisions of the cartel, the excess on one side or the other to be on parole. Will you accept this? I have no expectation of an answer; but perhaps you may give me one. If it, does come, I hope it will soon.
Respectfully, your obedient servant,
Ro Ould, Agent of Exchange.
On the twenty-ninth of October, 1863, I received from General Meredith a communication informing me that my proposal of the twentieth was “not accepted.” I was insultingly told that if the excess of prisoners was delivered they would be wrongfully declared exchanged by me and put in the field. To show how groundless this imputation was, it is only necessary for me to state that since then I have repeatedly offered to give ten Federal captives for every Confederate soldier whom the enemy will show to have been wrongfully declared exchanged.
From the last-named date until the present time there have been but few deliveries of prisoners, the enemy in each case demanding a like number in return. It will be observed that the Confederate authorities only claimed that the provisions of the cartel should be fulfilled. They only asked the enemy to do what, without any hesitation, they had done during the first year of the operation of the cartel.
Present position of the question.
Seeing a persistent purpose on the part of the Federal Government to violate its own agreement, the Confederate authorities, moved by the sufferings of the brave men who are so unjustly held in Northern prisons, determined to abate their fair demands, and accordingly, on the tenth of August, 1864, I addressed the following communication to Major John E. Mulford, Assistant Agent of Exchange, in charge of the flag-of-truce boat, which on the same day I delivered to him at Varina, on James River:sir: You have several times proposed to me to exchange the prisoners respectively held by [159] the two belligerents, officer for officer, and man for man. The same offer has also been made by the other officials having charge of matters connected with the exchange of prisoners. This proposal has heretofore been declined by the Confederate authorities, they insisting upon the terms of the cartel, which required the delivery of the excess of either side upon parole. In view, however, of the very large number of prisoners now held by each party, and the suffering consequent upon their continued confinement, I now consent to the above proposal, and agree to deliver to you the prisoners held in captivity by the Confederate authorities, provided you agree to deliver an equal number of Confederate officers and men. As equal numbers are delivered, from time to time, they will be declared exchanged. This proposal is made with the understanding that the officers and men who have been longest in captivity will be first delivered, where it is practicable. I shall be happy to hear from you, as speedy as possible, whether this arrangement can be carried out.Respectfully, your obedient servant,
Ro. Ould, Agent of Exchange.
I accompanied the delivery of the letter, with a statement of the mortality which was hurrying so many Federal prisoners at Andersonville to the grave.
On the twentieth of the same month Major Mulford returned with the flag-of-truce steamer, but brought no answer to my letter of the tenth of August. In coversation with him I asked him if he had any reply to make to my communication, and his answer was, that he was not authorized to make any. So deep was the solicitude which I felt for the fate of the captives in Northern prisons, that I determined to make another effort. In order to obviate any objection which technically might rise as to the person to whom my communication was addressed, I wrote to Major-General E. A. Hitchcock, who is the Federal Commissioner of Exchange, residing in Washington city, the following letter, and delivered the same to Major Mulford on the day of its date. Accompanying that letter was a copy of the communication which I had addressed to Major Mulford on the tenth of August:
Richmond, Va., August 22, 1864.sir: Enclosed is copy of a communication which, on the tenth instant, I addressed and delivered to Major John E. Mulford, Assistant Agent of Exchange. Under the circumstances of the case, I deem it proper to forward this paper to you, in order that you may fully understand the position which is taken by the Confederate authorities. I shall be glad if the proposition therein made is accepted by your Government.
Major-General E. A. Hitchcock, United States Commissioner of Exchange:Respectfully, your obedient servant,
Ro. Ould, Agent of Exchange.
On the afternoon of the thirtieth August, I was notified that the flag-of-truce steamer had again appeared at Varina. On the following day I sent to Major Mulford the following note, to wit:
sir: On the tenth of this month I addressed you a communication, to which I have received no answer. On the twenty-second I also addressed a communication to Major-General E. A. Hitchcock, United States Commissioner of Exchange, enclosing a copy of my letter to you of the tenth instant. I now respectfully ask you to state in writing whether you have any reply to either of said communications; and, if not, whether you have any reason to give why no reply has been made?Respectfully, your obedient servant,
Ro Ould, Agent of Exchange.
In a short time I received the following response, to wit:
sir: I have the honor to acknowledge the receipt of your favor of to-day, requesting answer, &c., to your communication of the tenth instant, on question of exchange of prisoners. To which, in reply, I would say I have no communication on the subject from our authorities, nor am I yet authorized to make answer.I am, sir, very respectfully,
Your obedient servant,
I have thus fully set before you the action of the Confederate authorities in relation to a matter which lays so near your hearts, and how it has been received by the enemy. The fortunes of your fathers, husbands, sons, brothers, and friends are as dear to those authorities as their persons are precious to you, and I have made this publication, not only as an illustration of Federal bad faith, but also that you might see that your Government has spared no effort to secure the release of the gallant men who have so often fronted death in the defence of our sacred cause.
Reply of Major-General Butler.
Without awaiting my reply, Mr. Ould has printed his offer, for which purpose it seems to have been made.
I am, therefore, driven to the same mode of placing my justification of the action of this Government in possession of the public before it reaches the Confederate Commissioner.
Respectfully,
Hon. Robert Ould, Commissioner of Exchange:
You therein state that Major Mulford has several times propsed to exchange prisoners respectively held by the two beligerents, officer for officer and man for man, and that “the offer has also been made by other officials having charge of matters connected with the exchange of prisoners;” and that “this proposal has been heretofore declined by the Confederate authorities.” That you now consent to the above proposition, and agree to deliver to you [Major Mulford] the prisoners held in captivity by the Codfederate authorities, provided you agree to deliver an equal number of officers and men. As equal numbers are delivered from time to time they will be declared exchanged. This proposal is made with the understanding that the officers and men on both sides who have been longest in captivity will be first delivered, where it is practicable.
From a slight ambiguity in your phraseology, but more, perhaps, from the antecedent action of your authorities, and because of your acceptance of it, I am in doubt whether you have stated the proposition with entire accuracy.
It is true, a proposition was made both by Major Mulford and myself, as Agent of Exchange, to exchange all prisoners of war taken by either belligerent party, man for man, officer for officer, of equal rank, or their equivalents. It was made by me as early as the first of the Winter of 1863-64, and has not been accepted. In May last I forwarded to you a note, desiring to know whether the Confederate authorities intended to treat colored soldiers of the United States army as prisoners of war. To that inquiry no answer has yet been made. To avoid all possible misapprehension or mistake hereafter as to your offer now, will you now say whether you mean by “prisoners held in captivity,” colored men, duly enrolled and mustered into the service of the United States, who have been captured by the Confederate forces; and if your authorities are willing to exchange all soldiers so mustered into the United States army, whether colored or otherwise, and the officers commanding them, man for man, officer for officer?
At an interview which was held between yourself and the Agent of Exchange on the part of the United States, at Fortress Monroe, in March last, you will do me the favor to remember the principal discussion turned upon this very point; you, on behalf of the Confederate Government, claiming the right to hold all negroes, who had heretofore been slaves and not emancipated by their masters, enrolled and mustered into the service of the United States, when captured by your forces, not as prisoners of war, but upon capture to be turned over to their supposed masters or claimants, whoever they might be, to be held by them as slaves.
By the advertisements in your newspapers, calling upon masters to come forward and claim these men so captured, I suppose that your authorities still adhere to that claim — that is to say, that whenever a colored soldier of the United States is captured by you, upon whom any claim can be made by any person residing within the States now in insurrection, such soldier is not to be treated as a prisoner of war, but is to be turned over to his supposed owner or claimant, and put at such labor or service as that owner or claimant may choose, and the officers in command of such soldiers, in the language of a supposed act of the Confederate States, are to be turned over to the Governors of States, upon requisitions, for the purpose of being punished by the laws of such States, for acts done in war in the armies of the United States.
You must be aware that there is still a proclamation by Jefferson Davis, claiming to be Chief Executive of the Confederate States, declaring in substance that all officers of colored troops mustered into the service of the United States were not to be treated as prisoners of war, but were to be turned over for punishment to the Governors of States.
I am reciting these public acts from memory, and will be pardoned for not giving the exact words, although I believe I do not vary the substance and effect.
These declarations on the part of those whom you represent yet remain unrepealed, unannulled, unrevoked, and must therefore be still supposed to be authoritative. By your acceptance of our proposition, is the Government of the United States to understand that these several claims, enactments, and proclaimed declarations are to be given up, set aside, revoked, and held for naught by the Confederate authorities, and that you are ready and willing to exchange man for man those colored soldiers of the United States, duly mustered and enrolled as such, who have heretofore been claimed as slaves by the Confederate States, as well as white soldiers?
If this be so, and you are so willing to exchange these colored men claimed as slaves, and you will so officially inform the Government of the United States, then, as I am instructed, a principal difficulty in effecting exchanges will be removed.
As I informed you personally, in my judgment, it is consistent neither with the policy, dignity, nor honor of the United States, upon [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 [162] on the Northern shore of Africa, about the year 1800, and in 1864 their children will hardly yield it upon their own soil.
This point I will not pursue further, because I understand you to repudiate the idea that you will reduce free men to slaves because of capture in war, and that you base the claim of the Confederate authorities to re-enslave our negro soldiers when captured by you, upon the “jus post limini,” or that principle of the law of nations which rehabilitates the former owner with his property taken by an enemy, when such property is recovered by the forces of his own country,
Or in other words, you claim that by the laws of nations and of war, when property of the subjects of one belligerent power, captured by the forces of the other belligerent, is recaptured by the armies of the former owner, then such property is to be restored to its prior possessor, as if it had never been captured, and, therefore, under this principle your authorities propose to restore to their masters the slaves which heretofore belonged to them which you may capture from us.
But this post liminary right under which you claim to act, as understood and defined by all writers on national law, is applicable simply to immovable property, and that, too, only after the complete re-subjugation of that portion of the country in which the property is situated, upon which this right fastens itself. By the laws and customs of war, this right has never been applied to movable property.
True it is, I believe, that the Romans attempted to apply it to the case of slaves, but for two thousand years no other nation has attempted to set up this right as ground for treating slaves differently from other property.
But the Romans, even, refused to re-enslave men captured from opposing belligerents in a civil war, such as ours unhappily is.
Consistently, then, with any principle of the law of nations, treating slaves as property merely, it would seem to be imposible for the Government of the United States to permit the negroes in their ranks to be re-enslaved when captured, or treated otherwise than as prisoners of war.
I have forborne, sir, in this discussion, to argue the question upon any other or different grounds of right than those adopted by your authorities in claiming the negro as property, because I understand that your fabric of opposition to the Government of the United States has the right of property in man as its cornerstone. Of course it would not be profitable, in settling a question of exchange of prisoners of war, to attempt to argue the question of abandonment of the very corner-stone of their attempted political edifice. Therefore I have omitted all the considerations which should apply to the negro soldier as a man, and dealt with him upon the confederate theory of property only.
I unite with you most cordially, sir, in desiring a speedy settlement of all these questions, in view of the great suffering endured by our prisoners in the hands of your authorities, of which you so feelingly speak. Let me ask, in view of that suffering, why you have delayed eight months to answer a proposition which, by now accepting, you admit to be right, just and humane, allowing that suffering to continue so long? One cannot help thinking, even at the risk of being deemed uncharitable, that the benevolent sympathies of the Confederate authorities have been lately stirred by the depleted condition of their armies, and a desire to get into the field to affect the present campaign, the hale, hearty and well-fed prisoners held by the United States in exchange for the half-starved, sick, emaciated and unserviceable soldiers of the United States now languishing in your prisons. The events of this war, if we did not know it before, have taught us that it is not the Northern portion of the American people alone who know how to drive sharp bargains.
The wrongs, indignities and privations suffered by our soldiers would move me to consent to anything to procure their exchange, except to barter away the honor and faith of the Government of the United States, which has so solemnly been pledged to the colored soldiers in its ranks.
Consistently with national faith and justice, we cannot relinquish this position. With your authorities it is a question of property merely. It seems to address you in this form. Will you suffer your soldier, captured in fighting your battles, to be in confinement for months rather than release him by giving for him that which you can call a piece of property, and which we are willing to accept as a man?
You certainly appear to place less value upon your soldier than you do upon your negro. I assure you, much as we of the North are accused of loving property, our citizens would have no difficulty in yielding up any piece of property they have in exchange for one of their brothers or sons languishing in your prisons. Certainly there could be no doubt that they would do so were that piece of property less in value than five thousand dollars in Confederate money, which is believed to be the price of an able-bodied negro in the insurrectionary States.
Trusting that I may receive such a reply to the questions propounded in this note as will lead to a speedy resumption of the negotiations for a full exchange of all prisoners, and a delivery of them to their respective authorities, I have the honor to be, very respectfully, your obedient servant,
