^(o\ bv ^ £ 611 .898 Copy I THE EXCHANGE QUESTION. Letter of Major-General Butler, United States Commissioner of Exchange, to Col. Ould, the Confederate Commissioner. Headquaeters Depaetment of ~ ViEGINIA AND NOETH CAEOLINA, In the Field, Aurjast — , 1864. Hon. Robeet Ould, Commissioner of Exchange. SiE: — Your note to Major Miilford, 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 Mul- ford) 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 pro- posal is made with the understanding that the officers and (2T5) \^\ A 276 SUPPLEMENT. men on both sides who have been longest m captivity ■svill 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 by myself, as Agent of Exchange, to exchange all prisoners of war taken b}^ 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 for-^ warded to you a note, desiring to know whether the Con- federate authorities intended to treat colored soldiers of the United States army as prisoners of war. To that inquirj^ no answer has yet been made. To avoid all possible mis- apprehension or mistake hereafter as to your offer now, will you now say whether you mean by " prisoners held in cap- tivit}'," colored men, duly enrolled, and mustered into the service of the United States, who have been captured by the Confederate forces ; and if j'our authorities are willing to exchange all soldiers so mustered into the United States army, whether colored or otherwise, and the officers com- manding 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, Avhoever they might be, to be held by them as slaves. By the advertisements in your newspapers, calling upon THE EXCHANGE QUESTION". 277 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 insur- rection, such soldier is not to be treated as a i^risoner of war, but is to be turned over to his supposed owner or claimant, and put at such labor or service as that OA^mer 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 mil 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 repre- sent yet remain unrepealed, unannuUed, 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, revokcLl, 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 bo so, and you are so willing to exchange these 278 SUPPLEMENT. 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 exchauges T\'ill 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 anj' consideration, to allow those Avho, by our laws solemnly enacted, are made soldiers of the Union, and who have been duly enlisted, enrolled and mus- tered as such soldiers, who have borne arms in behalf of this country, and who have been captured while fighting in vin- dication 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 mc 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 contempo- raneously with this offer on your part to exchange prisoners- and which seems to include all prisoners of war, the Con- federate authorities have made a declaration that the negroes heretofore held to service by owners in the States of Dela- ware, Marjdand, and Missouri are to be treated as prisoners of war, wlien 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 insurrec- tionary States arc 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. THE EXCHANGE QUESTION. 279 In tliG view wliicli tlie Government of tlic United States takes of tlie claim made by you to the persons and services of these negroes, it is not to be supported upon any prin- ciple of national and municipal law. Looking upon these men only as property, upon your theory of property in them, avc 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 Govern- ment capturing and holding such possession. Upon this rule of international law all civilized nations have acted, and by it both belligerents have dealt \vith 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 disjjonendi,^'' 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 280 SUPPLEMENT. 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 hy 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 alwa3^s 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 cjuestioned by j'ou. Nor is the case altered if the property is not actually captured in battle, but comes either voluntarily or involun- tarily from the belligerent owner into the possession of the other belli2;erent. I take it no one would doubt the right of the United States to a drove of Confederate mules, or a herd of Con- federate cattle, which should wander or rush across the Con- federate lines into the lines of the United'States arm}'-. So it seems to me, treating the negro as i^roperty 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 OAvner 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 owner- ship 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 THE EXCHANGE QUESTION. 281 by them? This claim our fathers fought against undei Bainbriclge 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 farther, because I understand you to repudiate the idea that you will reduce free men to slaves because of capture in Avar, 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 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 bellige- rent 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 niay 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 ijroperty, and that too, only after the 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 movahle 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 Eomans even refused to re-enslave men captured from opposing belligerents in a civil war, such as ours unhappily is. 282 SUPPLEMEXT. Consistently then Avitli any principle of the law of nations, treating slaves as property merely, it would seem to be im- Ijtossihle 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 ques- tion upon any other or different grounds of right than those adopted by your authorities in claiming the negro as pro- perty, because I understand that your fabric of opposition to tlie 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 abandon- ment 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 suffer- ing endured by our prisoners in the hands of your authori- ties, 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 suficring to cou- tintie so long ? One cannot help thinking, even at the risk of being deemed uncharitable, that the benevolent sympa- thies 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 unser- viceable 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 ho.w to drive sharp bargains. The ^^Tongs, indignities, and privations suffered by our THE EXCHANGE QUESTION. 283 soldiers would move me to consent to anything to procure tlieir 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 ques- tion of property merely. It seems to address itself to you in this form. Will you suffer your soldier, captured in fighting 3^our battles, to be in confinement for months rather than release him by giving for him tliat 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 pro- perty 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 Eespectfully, Your Obedient Servant, BENJAMIN F. BUTLER, Major-General and Commissioner of Exchange LIBRfiRY OF CONGRESS 013 764 365 ^^ \ LIBRARY OF CONGRESS III nil III ml !lii i| III lill m II I III 013 764 365