Southern Historical Society Papers/Volume 01/March/Treatment of Privateers
The first question concerning prisoners which arose between the two governments was when the privateer Savannah was captured on the 3d of June, 1861, off Charleston. In accordance with Mr. Lincoln's proclamation declaring privateering "piracy," the crew of the Savannah were placed in irons, and sent to New York. So soon as the facts were known in Richmond, Mr. Davis sent Mr. Lincoln, by a special messenger (Colonel Taylor), a communication, in which, under date of July 6th, 1861, he said:
"Having learned that the schooner 'according to number and rank.' To this proposition, made on the 19th ultimo, Captain Mercer, the officer in command of the blockading squadron, made answer, on the same day, that 'the prisoners (referred to) are not on board of any of the vessels under my command.', a private armed vessel in the service and sailing under a commission issued by authority of the Confederate States of America, had been captured by one of the vessels forming the blockading squadron off Charleston harbor, I directed a proposition to be made to the officer commanding the squadron for an exchange of the officers and crew of the Savannah for prisoners of war held by this Government,
"It now appears, by statements made, without contradiction, in newspapers published in New York, that the prisoners above mentioned were conveyed to that city, and have been treated not as prisoners of war, but as criminals; that they have been put in irons, confined in jail, brought before the courts of justice on charges of piracy and treason; and it is even rumored that they have been actually convicted of the offences charged, for no other reason than that they bore arms in defence of the rights of this Government and under the authority of its commission.
"I could not, without grave discourtesy, have made the newspaper statements above referred to the subject of this communication, if the threat of treating as pirates the citizens of this Confederacy, armed for its service on the high seas, had not been contained in your proclamation of the 19th of April last; that proclamation, however, seems to afford a sufficient justification for considering these published statements as not devoid of probability.
"It is the desire of this Government so to conduct the war now existing as to mitigate its horrors, as far as may be possible; and, with this intent, its treatment of the prisoners captured by its forces has been marked by the greatest humanity and leniency consistent with public obligation. Some have been permitted to return home on parole, others to remain at large, under similar conditions within this Confederacy, and all have been furnished with rations for their subsistence, such as are allowed to our own troops. It is only since the news has been received of the treatment of the prisoners taken on the Savannah that I have been compelled to withdraw these indulgencies, and to hold the prisoners taken by us in strict confinement.
"A just regard to humanity and to the honor of this Government now requires me to state explicitly, that, painful as will be the necessity, this Government will deal out to the prisoners held by it the same treatment and the same fate as shall be experienced by those captured on the Savannah; and, if driven to the terrible necessity of retaliation, by your execution of any of the officers or crew of the Savannah, that retaliation will be extended so far as shall be requisite to secure the abandonment of a practice unknown to the warfare of civilized man, and so barbarous as to disgrace the nation which shall be guilty of inaugurating it.
"With this view, and because it may not have reached you, I now renew the proposition made to the commander of the blockading squadron, to exchange for the prisoners taken on the Savannah an equal number of those now held by us, according to rank."
Colonel Taylor was permitted to go to Washington, but was refused an audience with the President, and was obliged to content himself with a verbal reply from General Scott that the communication had been delivered to Mr. Lincoln, and that he would reply in writing as soon as possible.
No answer ever came, however, and the Confederate authorities were compelled to select by lot from among the Federal prisoners in their hands a number to whom they proposed to mete out the same fate which might await the crew of the Savannah. But fortunately Mr. Lincoln was induced, from some cause, to recede from his position—albeit he never deigned an answer of any sort to Mr. Davis' letter—and the horrors of retaliation were thus averted. Although not necessary to this discussion, it may be well (in view of the flippancy with which Northern writers even now speak of "pirate Semmes"), to say that the Federal Government does not seem to have been influenced in this matter by any considerations of humanity, but rather by what occurred in the British House of Lords, on the 16th of May, soon after Mr. Lincoln's proclamation, declaring the Confederate privateers pirates, reached that country.
On this subject the Earl of Derby said:
"He apprehended that if one thing was clearer than another, it was that privateering was not piracy, and that no law could make that piracy, as regarded the subjects of one nation, which was not piracy by the law of nations. Consequently the United States must not be allowed to entertain this doctrine, and to call upon Her Majesty's Government not to interfere. He knew it was said that the United States treated the Confederate States of the South as mere rebels, and that as rebels these expeditions were liable to all the penalties of high treason. That was not the doctrine of this country, because we have declared that they are entitled to all the rights of belligerents. The Northern States could not claim the rights of belligerents for themselves, and, on the other hand, deal with other parties not as belligerents, but as rebels"
Lord Brougham said that "it was clear that privateering was not piracy by the law of nations."
Lord Kingsdown took the same view. "What was to be the operation of the Presidential proclamation upon this subject was a matter for the consideration of the United States." But he expressed the opinion that the enforcement of the doctrine of that proclamation "would be an act of barbarity which would produce an outcry throughout the civilized world."
Up to this time there had been no formal cartel for the exchange of prisoners, and the policy of the Washington Government seemed to be that they would not treat with "Rebels" in any way which would acknowledge them as "belligerents." But many prisoners on both sides were released on parole, and a proposition made in the Confederate Congress to return the Federal prisoners taken at First Manassas, without any formality whatever would doubtless have prevailed but for the difficulty in reference to the crew of the Savannah.
The pressure upon the Federal Government by friends of the prisoners became so great that they were finally induced to enter into a cartel for the exchange of prisoners on the very basis that the Confederates had offered in the beginning. The Confederate General Howell Cobb and the Federal General Wool entered into this arrangement on the 14th of February, 1862—the only unadjusted point being that General Wool was unwilling that each party should agree to pay the expenses of transporting their prisoners to the frontier, and this he promised to refer to his Government.
At a second interview, the 1st March, General Wool informed General Cobb that his Government would not consent to pay these expenses, and thereupon General Cobb promptly receded from his demand, and agreed to the terms proposed by the other side. But General Wool, who had said at the beginning of the negotiation, "I am alone clothed with full power for the purpose of arranging for the exchange of prisoners," was now under the necessity of stating that "his Government had changed his instructions." And thus the negotiations were abruptly broken off, and the matter left where it was before. The conduct of the Federal Government was of easy explanation and in perfect accord with their double dealing throughout the war. After these negotiations had begun, the capture of Forts Henry and Donelson had given the United States a considerable preponderance in the number of prisoners held by them, and they at once reverted to their original purpose of not treating with "Rebels" on equal terms.