United States v. Rucker

The citation for this case is 27 Fed. Cas. 911, Case No. 16,203. This 1866 case was in the District Court for the Western District of Tennessee. The case involved Edmund Rucker, who had been arrested and charged with treason after the Civil War. He moved that the case be dismissed on the ground that he was part of the surrender agreement struck between General Joseph E. Johnston and Major General William T. Sherman, which stated that as long as the confederate soldiers observed their paroles, they would remain undisturbed by the US Government.

“The Court held, that the granting of these terms of surrender was ‘the exercise of a belligerent right, sanctioned by the laws of war; and not that of sovereignty, as distinguished from belligerent. The sovereignty of the government did not reside in the president as the military chief of the nation, and he could not delegate to his subordinate officers in the field any right of sovereignty which did not properly pertain to him in his military character, under the constitution and laws of the United States;’ that the agreement was a military parole, intended to terminate with the war; that the court would certainly not have permitted the prisoner to have been arrested on its process during the war; but that the war was now ended. The Court accordingly refused to discharge the prisoner, but admitted him to bail.” [27 Fed. Cas. 911]

By this ruling, former confederates, after the war, could be arrested for treason even though their surrender terms stipulated that so long as they observed their paroles the US Government would not disturb them. This ruling was counter to the understanding Ulysses S. Grant had of the effect of the surrender terms, but Grant was not a lawyer. Rucker was given bail and was subsequently covered by one of Andrew Johnson’s pardons.


  1. Hmmm, I suppose that makes sense from a more global, legal perspective. It still bothers me a little that Grant’s interpretation of Lincoln’s position when proposing those surrender terms could be considered legally overruled the very next year.

    1. Well, the President isn’t a dictator, and just because he wants something to happen doesn’t make it a law in and of itself. 🙂

  2. OTOH by the pardon, Andrew Johnson made it happen.

    1. Johnson’s pardons short-circuited many charges of treason, and in a demonstration of the law of unintended consequences led to a situation today where people who don’t know much about the law make the absurd claim that because confederates weren’t convicted of treason in court after the war they therefore didn’t commit treason.

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