Dusky and Lieutenant Varner are either exchanged under some suitable agreement to be entered into between the Government of the United States and the State of Virginia or until they are unconditionally discharged. And I deem it a duty I owe to the cause of humanity and civilization to hold the residue of the prisoners I have now in custody as well as all who may hereafter come into the possession of this Sate as hostages for the good treatment of unoffending citizens of Virginia who have been incarcerated for no other cause than being loyal to their own State and the government of their choice- a government which has in a thousand instances been recognized and acknowledged by the Government of the united States as one of the sovereign and independent States of the former Union and which they are now waging a hopeless war to restore to its position. Believing, however, that it would be better for the Government of the United States, better for the citizens, better for the cause of humanity and of civilization that these departures from he rules of modern warfare should no longer be permitted to exist I respectfully ask that some arrangement should be made for the proper exchange of the prisoners named and some agreement be entered into for the exchange of all state prisoners hereafter. If no such agreement be made and the course hitherto pursued be continued I shall without hesitation, so long as the honor of Virginia and the safety and welfare of their citizens are intrusted to me as her chief Magistrate, unflinchingly retaliate to the utmost of my ability and power for any improper, unusual or harsh treatment practiced upon officers, soldiers or citizens of Virginia. The sin of its commencement shall rest upon the Government of the United States; the virtue of its continuance shall be proudly upheld by the authorities of this Commonwealth.
Governor of Virginia.
WAR DEPARTMENT, ADJUTANT- GENERAL'S OFFICE,
Washington, January 2, 1863.
Major General A. E. BURNSIDE,
Commanding Army of the Potomac, Falmouth, Va.
SIR: The record of proceedings of the general court- martial before which John W. Irwin, a rebel soldier, was tried and convicted of being a spy together with your Special Orders, Numbers 358, of December 21, 1862, remitting the sentence of death in his case has been received. The following indorsement on the record has been made by the judge- Advocate- General of the Army:
The remission of the sentence in this case by General Burnside is inoperative. Having confirmed the proceedings the pardoning power can be exercised by the President of the United States alone. The question is whether a simple letter from a rebel general shall be held sufficient to overthrow the sworn testimony given before the court- martial and thus protect a spy from the gallows to whih he has been condemned.
I am, directed in accordance with the above opinion to say that the prisoner, Irwin, will be held in custody until the President's pleasure is made known.
I have the honor to be, sir, &c.,
E. D. TOWNSEND,