Colonel Robert Ould was the confederate commissioner for prisoner exchanges. Major General Benjamin F. Butler performed that role for the United States Army.
On August 27, 1864 Butler sent a message to Ould which contains the reason why exchanges were halted by the Federals, leading to the overcrowding of prison camps on both sides.
In that letter, which is in the Official Records [OR Series 2, Vol VII, pp. 687-691], Butler wrote, “Your note to Major Mulford, assistant agent of exchange, under date of 10th of 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.” Here the confederates appear to accept the United States insistence that all prisoners be exchanged without regard to race. Butler wants to clarify.
“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 U. S. 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 say now 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 U. S. Army, whether colored or otherwise, and the officers commanding them, man for man, officer for officer?” Here Butler gets right to the point, that the United States has wanted to exchange all soldiers without regard to race, but the confederates thus far have refused to do so, and he wants to get a clear statement from them that they intend to accept the Union’s condition for exchanges.
Butler continues, “At an interview which was held between yourself and the agent of exchange on the part of the United States, at Fort 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.” He’s calling their bluff, letting them know they aren’t treating black soldiers as if they were soldiers. He also addresses the problem of the officers of US Colored Troops units: “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.”
Now he asks for that clear statement: “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 a 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.”
Butler clearly states that if the confederates are willing to exchange man for man without regard to race, treating black soldiers like white soldiers, treating officers of black units like officers of white units, then the United States will resume exchanges.
“As I informed you personally, in my judgment, it is neither consistent with the policy, dignity, nor 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 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.”
That is the crux of the matter. It’s why the United States halted exchanges.
Butler next brilliantly uses the confederates’ own ideology to point out the immorality and illegality of the confederate position on black soldiers and their officers:
“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 of 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 are immediately 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 the 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 by any doubt that that property, like any other, vests in the United States? If the property in the slave does so vest, the jus disponendi, the right of disposing of that property, rests in the United State. 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 manner as we have chosen to dispose of our property in them which we acquire 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 U. S. 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 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 capture merely. do the Confederate authorities claim the right to reduce to a state of slavery freemen, 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.”
Butler continues, “This point I will not pursue further, because I understand you to repudiate the idea that you will reduce freemen to slaves because I understand you to 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 postlimini, 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 form us. But this postliminary right under which you claim to act, as understood and defined by all writers of national law, is applicable simply to immovable property, and that, too, only after the complete 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 in the case of slaves, but for 2,000 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 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.”
Butler begins to conclude: “I have forborne, sir, in this discussion to argue the question upon any other of 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 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 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.”
Butler now points out the hypocrisy of the confederates: “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.”
Butler takes one more shot at the immoral, hypocritical confederate position using their own prejudices against them: “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 properly 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 $5,000 in Confederate money, which is believed to be the price of an able-bodied negro in the insurrectionary States.”
Finally, he offers negotiations to renew the exchanges on the United States’ terms: “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 delivery of them to their respective authorities,”
This letter is a great example of Butler’s brilliance as a lawyer, his sense of humor, and his overall sharpness. He wasn’t a good field general, but he was incredible as an arguer. This incredible letter also lays out the reason why the exchanges halted, why men died in prison camps, and how the confederates were acting immorally, illegally, and hypocritically.