April 22, 1865.
Honorable EDWIN M. STANTON,
Secretary of War:
SIR: I have the honor to acknowledge the receipt of your letter of the 22nd of April. In it you ask me three questions, growing out of the capitulation made betwixt General Grant, of the U. S. Army, and General Lee, of the rebel army. You ask:
First. Whether rebel officers who once resided in the city of Washington and went to Virginia or elsewhere in the South and took service can return to the city under the stimulation of the capitulation and reside here as their homes.
Second. Whether persons who raised in Washington about the time the rebellion broke out, left the city and went to Richmond, where they have adhered to the rebel cause, entered into the civil service, or otherwise given it their support, comfort, and aid, can return to Washington since the capitulation of General Lee's army and the capture of Richmond and reside here under the terms of the capitulation.
Third. You state that, since the capitulation of General Lee's army, rebel officers have appeared in public in the loyal States wearing the rebel uniform, and you ask whether such conduct is not a fresh act of hostile on their part to the United States, subjecting them to be dealt with as avowed enemies of the Government.
Your letter is accompanied with a copy of the terms of capitulation entered into betwixt Generals Grant and Lee. It is as follows:
"Rolls of all the officers and men to be made in duplicate - one copy to be given to an officer [to be] designated by me, the other to be retained by such officer or officers as you may designate the officers to give their individual paroles not to take [up] arms against the Government of the United States until properly exchanged, and each company or regimental commander sign a like parole for the men of their commands. The arms, artillery, and public property to be parked and stacked, and turned over to the officer appointed by me (General Grant) to received them. This will not embrace the side-arms of the officers, nor their private horses or baggage. This done, each officer and man will be allowed to return to their homes, not to be disturbed by United States authority so long as they observe their paroles and the laws in force where they may reside."
I. In giving constructions to these articles of capitulation we must consider in what capacity General Grant was speaking. He of course spoke by the authority of the President of the United States as Commander-in-Chief of the Armies of the United States. It must be presumed that he had no authority from the President except such as the Commander-in-Chief could give to a military officer.
The President performs two functions of the Government - one civil, the other military. As President of the United States and its civil head he possesses the pardoning power; as President of the United States he is Commander-in-Chief of the Armies of the United State and is the head of its belligerent power. His power to pardon as a civil magistrate cannot be delegated; it is a personal trust inseparably connected with the office of President. As Commander-in-Chief of the Armies of the United States he has of necessity to delegate a vast amount of power. Regarding General Grant, then, purely as a military officer, and that he was speaking as one possessing no power except belligerent, and considering that fact to be well known to the beligerents with whom he was making the stipulation, let us come to the consideration of the first question which you have propounded.
It must be observed that the question is not as to the extent of the power that the President as Commander-in-Chief of the Armies possesses; it is not whether he, as Commander-in-Chief of the Armies of the United States, could grant parole by virtue of his military authority to rebels to go to and reside in loyal communicates - communicates that had not been in rebellion against the Government of the United States; but the question is whether by and under the terms of the stipulation he has granted such permission.
In the cases in 2 Black, commonly called the Prize cases, the Supreme Court of the United States decided that the rebels were belligerent; that this was no loose, unorganized insurrection, without defined boundary, but that it had a boundary, marked by lines of bayonets which can only be crossed by force; that south of that line is enemy's territory, because claimed and held by an organized hostile and belligerent power; that all persons residing within that territory must be treated as enemies, though not foreigners, and it is well settled that all persons going there without license pending the hostilities, or remaining there after hostilities commenced, must be regarded and treated as residents of that territory. It follows, as a matter of course, that residents of the territory in rebellion cannot be regarded as having homes in the loyal States. A man's home and his residence cannot be district the one from the other. The rebels were dealt with by General Grant as belligerent. As belligerent their homes were of necessity in the territory belligerent to the Government of the United States. The officers and soldiers of General Lee's army, then, who had homes prior to the rebellion in the Northern States, took up their residences within the rebels States, and abandoned their homes in the loyal States, and when General Grant gave permission to them by the stipulation to return to their homes, it cannot be understood as a permission to return to any of the loyal States. That was a capitulation of surrender, and not a truce. Vattel lays it down that, (p. 410) "during the truce, especially if made for a long period, it is naturally allowable for enemies to pass and repass to and from each other's country, in the same manner as it is allowed in time of peace, since all hostilities are now suspended. But each of the severe going is at liberty, as he would be in time of peace, to adopt every precaution which may be necessary to prevent this intercourse from becoming prejudicial to him. He has just grounds of suspicious against people with whom he is soon to recommence hostilities. He may even declare at the time of making the truce that he will admit none of the enemy into any place under his jurisdiction.
"Those who, having entered the enemy's territories during the truce, are detained there by sickness, or any other unsurmountable obstacle, and thus happen to remain in the country after the expiration of the armistice, may, in strict justice, be kept prisoners; it is an accident which they might have foreseen, and to which they have, of their own accord, exposed themselves; but humanity and generosity commonly require that they should be allowed a sufficient term for their departure.
"If the articles of truce contain any conditions either more extensive or more narrowly restrictive than what we have here laid down, the transaction becomes a particular convention. It is obligatory on the contracting parties, who are bound to observe what they have promised in due form, and the obligations thence resulting constitute a conventual right."
Now, if the rights of enemies, during a long truce and suspension of hostilities, are thus restricted, it would seem evident that their rights under a capitulation of surrender, without any suspension of hostilities, could not, without express words in the stipulation to that effect, be anything like as large as under a truce and suspension of hostilities.
Regarding General Grant, then, as speaking simply as a soldier, and with the powers of a soldier, regarding this war as a territorial war, and all persons within that territory as residents thereof, and, as such, enemies of the Governments; and looking to the language of the stipulation, I am of opinion that the rebel officers who surrendered to General have no homes within the loyal States, and have no right to come to places which were their homes prior to their going into the rebellion.
II. As to your second question: The stipulation of surrender made betwixt Generals Grant and Lee does not embrace any persons other than the officers and soldiers of General Lee's army. Persons in the civil service of the rebellion, or who had otherwise given it support, comfort, and aid, and were residents of the rebel territory, certainly have no right to return to Washington under that stipulation.
III. As to the third question: My answer to the first is a complete answer to this. Rebel officers certainly have no right to be wearing their uniforms in any of the loyal States. It seems to me that such officers, having done wrong in coming into the loyal States, are but adding insult to injury in wearing their uniforms. They have as right to bear the traitors' flag through the streets of a loyal city as to wear a traitors' garb. The stipulation of surrender permits no such thing, and the wearing of such uniform is an act of hostile against the Government.
Very respectfully, your obedient servant,
By order of the Secretary of War
O.R. Series 1, Vol. 46, Part 3, pp. 918-920