Chapter XVII

The following letter from General Butler to the rebel commissioner of exchange will throw some light upon the subject, and give an idea as to whom the blame of non-exchange and non-intercourse belongs:--

_Letter of Major-General Butler, United States Commissioner of
Exchange, to Colonel Ould, the Confederate Commissioner._

HEADQUARTERS DEPARTMENT OF VIRGINIA AND NORTH}
CAROLINA, IN THE FIELD, AUGUST, 1864. }

HON. ROBERT OULD, _Commissioner of Exchange_.

SIR: Your note to Major Mulford, assistant agent of exchange, under
date of 10th August, has been referred to me.

You therein state that Major Mulford has several times proposed "to
exchange prisoners respectively held by the two belligerents--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 Confederate 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 1863-4, 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 the 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 nought 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 neither consistent
with the policy, dignity, or honor of the United States, upon 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 unchanged 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 misunderstand 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 the
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 and 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 where 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 possessions. 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 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, vests in the United States.

Now, the United States have disposed of the property which they have
acquired by capture in slaves taken by them, i.e., by emancipating
them, and declaring them 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 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 already 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 its 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 privilege 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 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 postliminii_, or that principle of the law of nations
which inhabilitates 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 postliminary 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 complete
resubjugation 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 impossible 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 ground 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 corner-stone. 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 admitted 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 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 been so solemnly 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 itself to 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 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 tend to a speedy resumption of the negotiations
in 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,
BENJAMIN F. BUTLER,

_Major-General and Commissioner of Exchange_.