Southern Historical Society Papers/Volume 01/April/Comments of General J. A. Early
Upon this order General J. A. Early, in a recent communication, makes the following eminently just comments:
It is very manifest that that order was issued for the purpose of embarrassing General Lee's army with the guarding and feeding of the prisoners, amounting to several thousand, then in our hands; and in consequence of the order, information of which reached us immediately, General Lee sent a flag of truce to Meade on the 4th of July, after the close of the battle, with a proposition to exchange prisoners. The latter declined the proposition, alleging a want of authority to make the exchange, or, from his own views of policy, he positively declined to entertain the proposition; I am not certain which.
According to the laws of war in the earliest ages a captive in war forfeited his life. Subsequently, in the cause of humanity, the penalty of death was commuted to slavery for life; and this continued to be a law of war for more than one-half of the Christian era, notwithstanding it has been so often said that slavery disappeared in Europe before the spirit of Christianity; in fact, it was the vast number of captives in war reduced to slavery from among the Sclavi or Sclavonians, in the eighth century, under that bulwark of the Church, Charlemagne, that caused the distinctive and modern appellation of "slaves" to be applied to all those held to involuntary servitude. In the age of chivalry, when knights-errant, and more especially the Crusaders, wanted money more than they did slaves, they sold their slaves their freedom; and the practice of releasing prisoners for a ransom was resorted to, and continued to be a law of war until a comparatively modern date, when, with the growth of regular armies, the practice of releasing prisoners on parole became a recognized rule of civilized warfare among Christian nations. It has never, however, been a law of war that the obligation of a prisoner to observe his parole depends upon the assent of his own Government; but, on the contrary, the right of a prisoner to obtain his release from captivity by giving his parole of honor not to serve against his captors until exchanged or otherwise released is derived from the fact that by his captivity he is placed beyond the protection of his Government, and therefore has the right to provide for his own safety by giving the requisite pledge, and all civilized nations recognize the binding force of that pledge or parole.
The rule is laid down by Vattel, pp. 414 and 415, as follows:
"Individuals, whether belonging to the army or not, who happen singly to fall in with the enemy are, by the urgent necessity of the circumstance, left to their own discretion, and may, so far as concerns their own persons, do everything which a commander might do with respect to himself and the troops under his command. If, therefore, in consequence of the situation in which they are involved, they make any promise, such promise (provided it do not extend to matters which can never lie within the sphere of a private individual) is valid and obligatory, as being made with competent powers. For, when a subject can neither receive his sovereign's orders nor enjoy his protection, he resumes his natural rights, and is to provide for his own safety by any just and honorable means in his power. Hence, if that individual has promised a sum for his ransom, the sovereign, so far from having the power to discharge him from his promise, should oblige him toit.
"The good of the State requires that faith should be kept on such occasions, and that subjects should have this mode of saving their lives or recovering their liberty.
"Thus, a prisoner who is released on his parole is bound to observe it with scrupulous punctuality, nor has the sovereign a right to oppose such observance of his engagement; for had not the prisoner thus given his parole he would not have been released."
The same doctrine is laid down by publicists generally.
The question of exchange of prisoners is a matter for agreement between the opposing powers, but the question of the parole is not. The paroles stipulated for in the cartel of July, 1862, were paroles with a view to subsequent exchange, and the stipulation did not create the right of a prisoner of war to be released from captivity on his parole, that existed prior to and independent of the cartel. It existed by virtue of a "higher law" [if I may be permitted to use a phrase so much in vogue in former times among those who now attach so much importance to unwavering fidelity to the Constitution, in their view of it], than an order from the Federal Secretary of War—the law of self-preservation. If I had found myself at any time during the war a prisoner in the hands of the enemy, about to be dragged to a Northern prison, where I am sure confinement for a very short time would have killed me or run me mad, and my captors had been humane enough to release me on my parole of honor not to serve again until exchanged, I am sure I would have thought my Government more barbarous than the enemy if it had required of me a violation of my parole and a return to duty without exchange; but I feel confident no such dishonor would ever have been required of me by that Government, for I do know that the paroles of some of my own men, captured at Williamsburg on the 5th of May, 1862, more than two months before the cartel was adopted, and for special reasons paroled within a week of their capture, were respected, and they were regularly exchanged.
Mr. Stanton, in issuing the order of the 3d of July, 1863, violated the laws of civilized warfare, and the statement contained therein that the Confederate Government ("the enemy") had pursued the same course was a mere pretext to give color to his own unwarrantable act. But for that order all the prisoners captured by us at Gettysburg, amounting to fully six thousand, would have been paroled; and, in fact, the proper staff officers were proceeding to parole them, and had actually paroled and released a large number of them, when the news came of the order referred to. Why did Mr. Stanton object to the paroling of those prisoners? and why did he prefer that they should be confined in prisons in the South—"prison pens," as Northern Republicans are pleased to call them—rather than that they should be sent to their own homes on parole, there to remain in comfort until duly exchanged, if it was not to embarrass the Confederate Government with the custody and support of them, regardless of any consideration for their health or their lives? If he did not think proper to exchange Confederate prisoners in his hands for them he could have refused to do so; and certainly their presence at their own homes could have done no harm to his cause; most assuredly not more than their confinement in a prison, in a climate to which they were unaccustomed. If the rule asserted in his order is among the laws and usages of war, then it must follow that if General Lee had not been able to guard or feed the prisoners in his hands he would have had the right to resort to that dread alternative to which the first Napoleon resorted in Egypt when he found the paroles granted by him not respected, and destroy the prisoners in his hands. If any of the prisoners brought from Gettysburg, or subsequently captured, lost their lives at Andersonville, or any other Southern prison, is it not palpable that the responsibility for their deaths rested on Edwin M.?
In consequence of the order one division commander, who fell into our hands, wounded, whom we could have brought off, though at the risk of his life, and a large number of other prisoners who were paroled (two or three thousand), were returned to duty in the Federal army without exchange; and among them was a Colonel, who pledged his honor that he would surrender himself and his regiment (paroled at the same time) if the validity of the parole was not recognized by his Government.