The new South. [volume] (Port Royal, S.C.) 1862-1867, 1865-05-20


regulate their action in accordance there Hith:
ATToRSEY Generals OFFICE
April %, 1865.
UoN. EDWIN ". STANTON, Secretary Of Ear.
SIR: have thd honor 10 acknowledge the re-
ccipt of your letter OF the 22d oil April In 1t
YOU ask me rlree questions growing out OF the
capitulatiUn made between General Grant, OF the
United States Army, and General Lee, OF the reb-
el army.
You ask, First. Whether rebel officers who
once resided in the city OF Washington, and went
to Virginia, or elsewhere III the South, and took
service can retnrn to the city under stirulations
of the capitulation, and reside here as their
homes?
Second. Whether persons who resided III
Washington about the time the rebellion broke
out left the city and went to Richmond, where
they have adhered to the rebel cause, entered in
to the civil service, or otherwise given it their
support, comfort, or aid, can return to Washing
ton. since the capitulation Of General Lee army,
and the capture Of Richmond, and reside here
under the terms of the capitulation?
Third You state that, since the eapitulation
of Gen. Lees army, rebel officers have appeared
i'll pubic in the loyal States, wearing the rebel
uniform; and you ask whether such conduct is
not fresh act of hostility on their part to the
United States, subjecting them to be dealt with
az ayowed enemies of the Government?
Your letter is accompanied with copy OF the
terms of capitulation entered into betwixt Gener-
ais Grant and Lee. 1t is as follows:
"Rolls Of all the officers and men to be made
in duplicate; one copy to be given to an officer
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
10 take arms against the Government OF the
United States until properly exchanged, and each
company or regimental commander sign Ike
pare e for the men Of their commands. The arms,
artillery and public property to be parked and
stacked and turned over to the officers appointed
by me (Gen. Grant, to receive them. This VIII
not embrace the side arms Of the officers, nor
their private horses or baggage. This done, each
officer and men will be allowed to return to their
homes, not to be disturbed by United States au.
thority so long as they observe their parole and
TIE laws in force where they may reside.
I'm giving construction TO these articles OF
capitulation, we must consider in what capaciiy
General GIANT was speaking. lie, Of course,
smoke By the authority OF the President of the
United States, as Commander-in Chief OF the Ar.
mics of the United States, Il mast be presumed
that he had no authority from the President ex,
cent srch SO The Commander. insChief cou;a give
to military officer.
TIE President performs two functions oS the
Government; one civil, the other military. As
President OF the United States and its civil head,
he possesses the pardontng power; as President
Oi the Iullgu clttCS VI
the Armies OF the United States, and is the head
Of its belligerant power. BIS power to pardon as
civil magistrate cannot be delegated; Il is per-
s0nal trust i;.aep1r5tey connected with the oiice
oR President AS COmmander-in.Chief OF the
Armies Of the United States he hss OF necessity,
to delegate vast amount Of power. Regarding
Gen. Grant then, purely as military officer, and
that lie was speaking as one possessing no power
except belligerept, and considering that fict to
be well Known TO the belligererfs with whom he
was making the stipulation, let us come 10 the
consideration Of the first question which you
have propouEded.
1t must be observed that The question is not as
TO the extent of the power that the President, as
Commauder-in-ChiGfof OF the armies, possesses; ii
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
| 60 to, and reside in loyal communities-confmu
mites that have not been in rebellion against the
Government of the United States; but the ques.
ton is whether by, and under the terms OF the
istipulations, he has granted such permissions.
In the cases in Black, commonly called the
Prize Cases, the Supreme Court OF the United
States decided that the rebels were bclligerents;
that this was no loose, unorganiZed insurrection,
without defined boundary, but that it had q
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 ana peIn9erent
| 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 hostili'
ties, or remaining thero after hosti tiles COM
mencsd, must be regarded and treated as resi-
dents OF that territrry. 1t follows, as matter oil
course that residents Of the territory in rebellion
cannot be regarded as having homes in the loyal
states. A mans home and his residence cannot
re distinct the one from the other. The rebels
were dealt with by General Grant as belliserents.
q helIipersIits their homes wore Of necessity IN