I therefore am decidedly of opinion that the order of General Butler is inexpedient under existing circumstances, except that inasmuch as General Butler effected an exchange of some 500 prisoners, delivering and receiving about that number, he was authorized to declare a number equal to that delivered by him exchanged, furnishing an accurate list of them according to the fifth article of the cartel.
Fourth. The only authority conferred upon General Butler to make exchanges through me or within my knowledge is contained in the annexed copy of an order, marked A,* dated Fort Monroe, December 17, 1863, which was communicated to him under instructions from the War Department as exhibited in the annexed copy of an order, marked B,+ dated War department, December 16, 1863, addressed to myself.
The special order of the 17th of December, videcopy herewith marked C,++ was furnished to General Butler merely to enable him to make known if necessary his authority to meet the rebel agent under flag of truce on the business of exchange without exhibiting his detailed instructions.
It was not the intention of the instructions thus recited or referred to to authorize General Butler to act retrospectively and declare a body of prisoners exchanged then on parole within our lines unless their relations to the enemy should be change. General Butler was permitted by his instructions to waive the consideration of questions of difficulty then pending between this Government and the rebel authorities on the subject of exchange until further interchange of views between himself and those authorities, but he was not authorized to assume to dispose of those questions by an arbitrary decision of his own; he was authorized to exchange prisoners, man for man and grade for grade, irrespective of the then existing difficulties.
If there had been any sufficient authority for a declaration of exchange for the prisoners in question prior to general Butler entering upon duty in connection with the subject of exchanges General Butler might naturally assume that the claims of some 1,500 men and the claims of the Government and the country in relation to them would not have been overlooked. No change of relations in respect to those men has occurred within my knowledge, and none has been reported by General Butler so far as I know.
My answer to the fourth point is, therefore, that General Butler had no authority to make the declaration in question; and this unavoidably leads to the remark that we cannot expect to return to a becoming intercourse with the enemy under flag of truce except by a strict adherence on our part to the laws of war, and, as I consider the declaration in question in contravention of those laws, I have no hesitation in recommending that the order be revoked.
The intercourse of belligerents, apart from open violence in the field, which has, however, its own imperative laws, is always a matter of great delicacy, and cannot prosper except when both parties act upon common principles accepted by both; and nothing can embarrass intercourse under flag of truce more than an assumption by one party to decide a disputed point upon a judgment not submitted to the other for acceptance or remark.
It may be unfortunate that we have a number--possibly 1,500 or more--of our men on parole within our lines not to take arms until exchanged, but if we undertake to put these men with arms into the field without being duly exchanged went only expose the men to the danger of being dealt with, if captured again, for breach of parole, one
*See Hitchcock to Butler, p. 711.
+See Stanton to Hitchcock, p. 709.
++See Hitchcock to Butler, p. 712.