“3. Rolls of all the officers and men to be made in duplicate, one copy to be retained by the commander of the troops, and the other to be given to an officer to be designated by General Sherman. Each officer and man to give his individual obligation, in writing, not to take up arms against the Government of the United States until properly released from this obligation.
“4. The side-arms of officers, and their private horses and baggage, to be retained by them.
“5. This being done, all the officers and men will be permitted to return to their homes, not to be disturbed by the United States authorities so long as they observe their obligation and the laws in force where they may reside.
[Signed] “W. T. Sherman, Major-General,
“Commanding U. S. Forces in North Carolina.
[Signed] “Joseph E. Johnston, General,
“Commanding C. S. Forces in North Carolina.”
Here, Mr. President, was a solemn military convention, entered into by two generals, who had opposing armies in the field, in which convention the one and the other general stipulated for certain terms,—General Johnston agreeing to lay down his arms and disband his forces, and General Sherman agreeing, in consideration thereof, that the forces thus disbanded shall proceed to their homes, and there remain undisturbed by the United States authorities. I beg you to observe the use of the word “undisturbed,” one of the most comprehensive words in our language. I pray you also to remark the formalities with which this convention was drawn. We were treated as officers commanding armies, representing, of course, if not a de jure, at least a de facto government. Our proper military titles were acknowledged. I was myself styled and treated in the muster-rolls, and other papers drawn up by both parties, a brigadier-general and a rear-admiral. The honors of war usual upon surrenders, upon terms, were accorded to us, in our being permitted to retain our side-arms, private horses, and baggage. In short, the future historian, upon reading this convention, will be unable to distinguish it in any particular from other similar papers, agreed upon by armies of recognized governments. At the date of, and some weeks prior to the ratification of this convention, I commanded a brigade of artillery, forming a part of the army of General Johnston. I was, of course, included in the terms of the convention. I complied with those terms, under orders received from General Johnston, by turning over my arms to the proper officer, and disbanding my forces. The convention was approved by the Government of the United States. Your Excellency may recollect that the first convention entered into between General Johnston and General Sherman, which provided, among other things, for the return of the Southern States to their functions under the Constitution of the United States, was disapproved by the Government, on the ground that General Sherman, in undertaking to treat of political matters, had transcended his authority. The armistice which had been declared between the two armies was dissolved, and hostilities were renewed. A few days afterward, however, new negotiations were commenced, and the convention with which we have to do was the second convention entered into by those Generals, and which was a substantial readoption of the military portion of the first convention. It was this latter convention which was formally approved, both by General Grant, the Commander-in-Chief, under whose orders General Sherman acted, and by the Executive at Washington.
Confiding in the good faith of the Government, pledged in a solemn treaty as above stated, I returned to my home in Alabama, and remained there for the space of seven months, engaging in civil pursuits as a means of livelihood for my dependent family, and yielding a ready obedience to the laws. I had, in fact, become an officer of the law, having established myself as an attorney. It would have been easy for me, at any time within these seven months, to pass out of the country, if I had had any doubt about the binding obligation of the Greensboro’ convention, or of the good faith of the Government. But I had no doubt on either point, nor have I any doubt yet, as I feel quite sure that when you shall have informed yourself of all the facts of the case, you will come to the conclusion that my arrest was entirely without warrant, and order my discharge. While thus remaining quietly at my home, in the belief that I was “not to be disturbed by the United States authorities,” I was, on the 15th of December, 1865, in the night-time, arrested by a lieutenant and two sergeants of the Marine Corps, under an order signed by the Secretary of the Navy, and placed under guard; a file of soldiers in the meantime surrounding my house. I was informed by the officer making the arrest that I was to proceed to Washington in his custody, there to answer to a charge, a copy of which he handed me. This charge, and the protest which I filed the next day with the Commanding General of the Department of Alabama, against my arrest, your Excellency has already seen. The question for you then to decide, Mr. President, is the legality of this arrest. Can I, in violation of the terms of the military convention already referred to, and under which I laid down my arms, be held to answer for any act of war committed anterior to the date of that convention? I respectfully submit that I cannot be so held, either during the continuance of the war, (and the political power has not yet proclaimed the war ended,) or after the war shall have been brought to a close by proclamation, and the restoration of the writ of habeas corpus, without a flagrant violation of faith on the part of the United States. If it be admitted that I might be tried for any act dehors the war, and having no connection with it—as, for instance, for a forgery—it is quite clear that I cannot be arrested or arraigned for any act manifestly of war, and acknowledged as such, (as the act, for instance, for which I was arrested,) whether such act be in consonance with the laws of war or in violation thereof; and this for the simple reason that the military convention was a condonation and an oblivion of all precedent acts of war, of what nature soever those acts might be. I am “not to be disturbed,” says the military convention. Disturbed for what? Why, manifestly, for any act of war theretofore committed against the United States. This is the only commonsense view of the case; and if the convention did not mean this, it could mean nothing; and I laid down my arms, not upon terms, as I had supposed, but without terms. If I was still at the mercy of the conqueror, and my arrest asserts as much, I was in the condition of one who had surrendered unconditionally; but it has been seen that I did not surrender unconditionally, but upon terms—terms engrafted upon a treaty ratified and approved by the conqueror’s Government. Nor is it consistent with good faith to qualify or restrain those terms, so as to make them inapplicable to acts of war that may be claimed to have been in violation of the laws of war; for this would be to refine away all the protection which has been thrown around me by treaty, and put me in the power of the opposite contracting party, who might put his own construction upon the laws of war. This very attempt, Mr. President, has been made in the case before you. I claim to have escaped, after my ship had sunk from under me in the engagement off Cherbourg, and I had been precipitated into the water, the enemy not having taken possession of me, according to the laws and usages of war, as your Excellency may read in almost every page of naval history; the Secretary of the Navy claiming the contrary. The true, and the only just and fair criterion, is, was the act for which the arrest was made an act of war? If so, there is an end of the question, and I must be discharged, for, as before remarked, the convention, if it is anything, is an oblivion of all acts of war of whatever nature.
But it may be said that, although I cannot be tried by a military tribunal during the war, I may yet be tried by a civil tribunal after the war. Let us look at this question also. I was, undoubtedly, amenable to the civil tribunals of the country, as well after as before the convention, for any offence of a purely civil nature, not founded upon an act of war—to instance, as before, the crime of forgery. If I had committed a forgery in North Carolina, I could not, upon arraignment, plead the military convention in bar of trial. Why not? Because that convention had reference only to acts of war. I was treated with, in my capacity of a soldier and a seaman. But, does it follow that I may be tried for treason? And if not, why not? The Attorney-General tells you that treason is a civil offence, and in his opinion triable exclusively by the civil courts, and he hopes you will give him plenty of occupation in trying “many whom the sword has spared.” (See his letter to you of the 4th of January, 1866.) But does not that officer forget that treason is made up of acts of war; and is it not apparent that you cannot try me for an act of war? The Constitution of the United States, which the Attorney-General says he loves even better than blood, declares, in words, that treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort—all of which adherence, giving of aid and comfort, &c., are equally acts of war. There is no constructive treason in this country. Thus I can neither be tried by a military tribunal during the war, nor a civil tribunal after the war, for any act of war, or for treason which consists only of acts of war.
But it may further be said that this convention, of which I am claiming the protection, is not a continuing convention, and will expire with the war, when, as Mr. Speed thinks, you may hand me over to the civil tribunals. Whence can such a conclusion be drawn? Not from the terms of the convention, for these contradict the conclusion; not by implication merely, but in totidem verbis. The terms are, “not to be disturbed, so long as they shall observe their obligation and the laws in force where they may reside.” A misuse of terms, Mr. President, sometimes misleads very clever minds. And I presume it is by a misuse of terms that the Attorney-General has fallen into this error. (See his letter to your Excellency, before referred to.) That officer, while he admits that PAROLE protects the party paroled from trial during the war, yet contends that it does not protect him from trial by a civil tribunal, for treason, after the war. As I have shown that treason can only consist of acts of war, and that the military convention is an oblivion of all acts of war, the Attorney-General, when he says that a paroled party may be tried for treason at the end of the war, (the parole being no longer a protection to him,) must mean that the parole will have died with the war. This is entirely true of a mere parole, for a parole is only a promise, on the part of a prisoner of war, that if released from imprisonment, he will not take up arms again unless he is exchanged. This parole is as frequently given by prisoners of war, who have surrendered unconditionally, as by those who have surrendered upon terms. There cannot be any parole, then, without a prisoner of war, and the status of prisoner of war ceasing, the parole ceases—cessante ratione cessat et ipso lex. Thus far the Attorney-General is quite logical, but by confounding in his mind the certificates given to the officers and men of General Johnston’s army, stating the terms of the Greensboro’ convention, and guaranteeing those officers and men against molestation, in accordance with those terms, with PAROLES, it is easy to see how the mistake I am exposing can have been made. But the convention made between General Johnston and General Sherman was not a mere release of prisoners on parole; nor, indeed, had it anything to do with prisoners, for none of the officers and men of General Johnston’s army ever were prisoners, as may be seen at a glance by an inspection of the terms of the convention. It was a treaty between commanding generals in the field, in which the word parole is not once used, or could be used with propriety; a treaty in which mutual stipulations are made, one in consideration of another, and there is no limit as to time set to this treaty.
On the contrary, it was expressly stated that the guaranties contained in it were to continue and be in force, so long as the parties to whom the guaranties were given, should perform their part of the treaty stipulations. It was made, not in contemplation of a continuation of the war, but with a view to put an end to the war, and the guaranties were demanded by us as peace guaranties. It did, in effect, put an end to the war and pacify the whole country; General Taylor in Alabama and Mississippi, and General Buckner and others in Texas, following the lead of General Johnston. Are we to be told now by an Attorney-General of the United States, that the moment the object of the convention, to wit, the restoration of peace, was accomplished, the convention itself became a nullity, its terms powerless to protect us, and that General Johnston’s army surrendered, in fact, without any terms whatever? You cannot sustain such an opinion, Mr. President. It will shock the common sense and love of fair play of the American people. But to show still further that it was the intention of the parties that this should be a continuing convention, the words used were, “not to be disturbed by the United States Authorities,” these words being co-extensive with the whole power of the Government. We were not only “not to be disturbed” by General Sherman, or any other military commander or authority, but by any authority whatever, civil or military. Nor will it do to say that General Sherman, being merely a military man, had no authority to speak for the civil branch of the Government, for his action, as we have seen, was approved by the Administration at Washington.
One more remark, Mr. President, and I will forbear to trespass further on your time and patience. The act of war for which I was arrested, was well known to the Department of the Government making the arrest, ten months before the convention was entered into at Greensboro’. It was also well known to the same Department, that about the middle of February, 1865, I was assigned to the command of the James River Squadron, near Richmond, with the rank of a rear-admiral; being thus promoted and employed by my Government, after the alleged illegal escape off Cherbourg. If the Federal Government then entertained the design, which it has since developed, of arresting and trying me for this alleged breach of the laws of war, was it not its duty, both to itself and to me, to have made me an exception to any military terms it might have been disposed to grant to our armies? I put it to you, Mr. President, as a man and a magistrate to say, and I will rest my case on your answer, whether it was consistent with honor and fair dealing, for this Government first to entrap me, by means of a military convention, and then, having me in its power, to arrest me and declare that convention null and void, for the course recommended to you by Mr. Speed comes to this—nothing more, nothing less.