Year: 1866

On Friday last, Brig. Gen. Ed. W. RUCK-


Err was arraigned before the U. S. District


and Circuit Courts for treason. Judge C. F.


TRIGG, rendered the following decision


on a motion for discharge, based upon a


military parole. The decision is a very i'm


portant one, and will be read.with general


interest:


'The defendant being under arrest upon a
capias issued from the United States Circuit
| Court, by his attorney, moved the Court to


be discharged therefrom, upon the ground
| that he was one of those embraced in the
terms of the surrender and agreement of
| capitulation between Generals Sherman and
Johnston, by which it was stipulated that


upon the condition of his not again taking
up arms against the Government of the
| United States, and obeying the laws of the
State where he resided, he should not be
molested by the authorities of the United
States.


The motion was discussed at considerable
! length by the counsel of the defendant, and
several authorities relied on to sustain it.
The Court said: "This question is not
new one to the Court. So far az the conven-
ton or agreement entered into between
Generals Grant and Lee, in command Of the
respective belligerent forces, was concerned,
and the counterpart Of the same which was
made by and between Generals Sherman
| and Johnston upon the surrender of the
army of the latter to General Sherman, the
power of these Generals to make such an
agreement could not be questioned, and the
terms of capitulation provided thereinwould
be equally binding upon both parties to the
same. And, the good faith and honor of
the United States being pledged TO its full
| fillment it would not only be the pleasure,
but the duty of this court to carry out, as
| far as lies in its power, the terms of that
| agreement as they were understood and ac-
cepted at the time of the surrender. But
this, like any other contract which a court
might be called upon to interpret, must be
| subjected to a rigid scrutiny, and by con-
! sideration Of the subject as well as the terms
| of the contract to ascertain what was the
intention of the parties contracting. In con-
| sidering this contract and the terms of
| capitulat:on made by it, we must look at all
the circumstances surrounding it, the par
ticular points or stipulatiOns embraced in it,
and the objects and purposes for which 1t was
| entered into.


It's unnecessary for the court to recapit-
ulate the unhappy condition Of the country,
or the position of the respective parties at
| the time when these conventions or agree
ments were made. They are well known to
all and form a part of the history of the
| country. The power of the government


was being exerted for the purpose of sup
| pressing a most formidable resistance to the
| authority and laws of the United States.


The country was engaged in a gigantic civil
war; and it was while it was in this condi-
| ton that these conventions or agreements
were made between the commanders re-
| spectively of the armies Of the government
and the hostile forces. The general officers
| in command Of the forces of the government
| had the power to make such terms with the
enemy as would the most speedily deter


mine and end the conflict. This power, it
may be assumed they exercised with the
| approval of the President, who was their
| military superior, and was purely mill
| tary power which the laws of war sane
toned, and as such could have no wider
| scope or extended effects than it was the
| province of a military commander TO grant.
| 1t was the exercise of a belligerent right,
sanctioned by the laws of war, and not that
sovereignty as contradistinguished from bel
| Lgcreat. The sovereignty of the govern
ment did not reside in the President as the
military chief of the nation, and he could
not delegate to his subordinate officers in
the field any right Of sovereignty which did
not properly pertain to him in his military
| character under the Constitution and laws
Of the United States.


The terms of capitulation were substan-
| tally that the insurgents should lay down
their arms, repair TO their respective homes,
and that they should not be molested by the
authorities of the United States so long as
they refrained from again taking up arms
against the Government and obeyed the
| laws of their respective States. This was
| the convention or agreement between the
parties Now, what was the purpose and OBJ
| ject Of such an agreement, and the terms of
| the capitulation embraced by it? Was it
not to bring about a cessation of hostilities
| between the parties to the contract, and
| eventually to terminate the war? 1t was
| perfectly legitimate for the officer in COM
mand of the forces Of the Government, by
virtue Of the military power with which he


was invested, TO propose and accept terms Of
surrender, but he could only propose or ac-
| cept such terms as came within the scope of
| his military authority. He had no authori-
| ty to exercise the sOrereigH right Of pardon


ing the crime which was being perpetrated
| by thosein rebellion against the Government;
and not having such authority it cannot be
| presumed that such was the intention and
| understanding of the terms of the agree


ment.


| The President alone, under the Constitu-
ton, has the power Of pardon, and this pow
er he does not possess as commander-in-
| chief Of the army and navy Of the United
| States, but in his character of civil-magis-
trate. And as such commander-in-chief he
could not delegate the power of pardon to
an officer under him. But if the effect is to
| be given TO the terms of the surrender which


is contended for on behalf of the defendant
| in this prosecution, then the capitulation


and surrender operated as a pardon and
| general amnesty to all who had been en-
! gagged in the rebellion and were embraced


in the agreement to capitulate.


1t could not have been intended by the
officers who made this agreement that it
should have any such effect as is claimed for


it, for we cannot suppose that they intended


to do that which they had no power or au-


thority to do, and which could only be


done by the President in the exercise of a


sovereign right conferred upon him by the


Constitution in his character of civil magis-
| trate


We must regard this agreement, then, as
| il seems TO the court, in no other light than


rs military parole upon the terms stipula-
| ted and which the parties contemplated
! should terminate with the war if its terms


remained unbroken, by the parties accept


ing it, until that time. That this is the true


Interpretation Of the contract, and that it


was so understood by the parties accepting
| the terms of the capitulation, would seem


to be manifest from what is daily occurring


in relation to it.


How many of those who laid down their
| arms under the terms Of surrender. are daily
| applying to the President for special pardons,


and taking the amnesty oath, when not


within the exceptions provided in the pro-


clamation Of the Goth of May, 1865? These


applications have been made by hundreds,


not to say thousands OF the very men who


came within the terms of the agreement un-


der consideration. These applicants must


have understood that the conditions of their


surrender had no other or greater effect than


we have herein given to them. For, If they


had thought differently, they could scarcely


have deemed it essential, and have been SO


eager TO obtain the additional pardon of the
| President. With this understanding of the


terms of surrender, if the defendant had


been arrested under the process of this


court during the existence of the war, this


court would certainly not have permitted


him 90 be imprisoned, and would have
! seen that all tho conditions of sur-