William T. Sherman to Swayne, November 12, 1862

Memphis, November 12, 1862.

Hon. JUDGE SwAyYNE, Memphis:

Sir: You expressed yourself hurt this morning at the severe terms in which I] indulged in commenting on the charge you made the grand jury. It is now late at night, and I am worn out with writing purely official matter, and now, hastily and candidly, wish to convey to you my serious thoughts.

I concede to you the highest order of personal character, talents, and education, and will not pretend to argue with you constitutional or legal questions. I have repeatedly asserted, and now repeat my belief, that you are honest in your opinions and practice, but must say that, in my judgment, you are unintentionally drifting your country and people to ruin, misery, and death. In the first place, I regret that, in preparing your opinion or charge to the jury, the main part was omitted, and only that part published to the world which treats of the sworn duty of the grand jury to find bills under the enumerated laws of Tennessee touching slaves, utterly ignoring the laws of Congress and the state of war.

Thus take the statutes you quote, Nos. 26, 58, 59, 60, 61, 63, 64, 82, &c. How can any one of them be executed here without an absolute relinquishment of all that has been done in this war? Will the United States stultify herself by allowing a criminal court of a county to nullify the acts of the Congress and of armies raised at the expense of the blood and treasure of the nation? What is the law of Congress on this point ?

Act No. 160.—AN ACT to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes.

Sxc. 9. And be it further enacted, That all slaves of persons who shall, after proclamation giving sixty days’ notice, be engaged in rebellion against the Government of the United States, or who shall in any way give aid or comfort thereto, escaping from such persons and taking refuge within the lines of the army, and all slaves captured from

such persons, or deserted by them and coming under the control of the Government of the United States, and all slaves of such persons found or being in any place ocoupied by rebel forces and afterward occupied by the forces of the United States, shall be deemed captives of war, and shall be for ever free of their servitude, and not again

held as slaves. “ey ; Sec. 10.* * * And no person engaged in the military or naval service of the

United States shall, under any pretense whatever, assume to decide on the validity

of the claim of any person to the service or labor of any other person, or surrender

up any such person to the claimant, on pain »f being dismissed from the service. Approved July 17, 1862.

Such is the law of the Congress of the United States, which I caused to be published many successive days in all the newspapers of Memphis as soon as received; and yet you made no mention of it in your charge to the jury. Certainly you must admit a state of war; that Memphis was a place held by the Confederate troops in June last and now in our military possession, and that during the pendency of war I am held by our Government as responsible for all that occurs in this district, and as much accountable for acts done by persons subordinate to my authority, as though done by myself. Therefore, in charging the jury, you could not but have foreseen it would raise a direct conflict. I admit that in our conversation you contended -that your high sense of the character of a judge demanded you should announce the law, but that in doing so you qualified it by the expression—

If in regard to the slavery laws of the State, or any of the recited or other statutory or common law offenses, the jury should find themselves physically prevented by the. circumstances about them—in other words, by the insufficiency of the power of the

county—from the performance of their high duties as defined by the law, in that case their failure to perform these duties will be no dereliction on their part.

Now I hold, and so will every reader of your charge infer, that the jury is bound to hear and, on their oath, find bills against every person who has received, harbored, or employed a fugitive slave. No physical power will hinder them from finding such bills any more than it did you in making your charge; on the contrary, [ would look for discreet action and a full and comprehensive laying down of the law to the learned and intelligent judge rather than the jury who are bound to receive the law as he gives it to them to apply to the cases that may come to their hearing.

I say the grand jury are bound to indict every man, woman, or child in the county of Shelby who has been governed by the laws of the Congress of the United States, instead of those of the State of Tennessee, late in open rebellion to the mild and generous sovereign of the whole country. Thus I contend that, when your community is already bound down by the afflictions of stern war, you have insisted, from what I deem a too delicate sense of your official obligations, in bringing a direct conflict between the State and National authority. I had in my former conversations with you expressed an earnest desire that, while armed thousands of strong men were arrayed against each other, ready at any moment to engage in deadly struggle, the common machinery of Government might be preserved, to protect the old and young, feeble and helpless, against the murderous robbers, thieves, and villains that are sure to take advantage of the complications of war to do their hellish work. { wanted of all things the criminal court of Shelby County to meet and punish crime—that class of crime known all the world over as malum tm se, common to the codes of all civilized people—and reserve this question of slavery, this dire conflict between National and State authority, to be fought out by the armies now arrayed for that purpose. Personally, I have no hostility to slavery or any of your local laws. I would

they had never been disturbed; that Federal and State authority had been mutually respected by the parties to this strife; but this event almost convinces me that they are utterly irreconcilable, when Judge Swayne, with the din of arms in his ears, with bayonets glistening at each street corner, with messengers coming and going with the cruel news of the mangling of hundreds and thousands of our common eitizens in deadly strife, charges a grand jury under the old law of Tennegsee as though there was no war, and utterly ignores the iaws made by the Congress of the United States. I wanted, and stili want, you to hold your court and punish the many malefactors that infest the country, but you must respect the laws of our common Government.

I do not want to dictate to you; I appeal to your reason. You cannot administer the laws you quote, but there is plenty you can do, and, to make the matter emphatic, I have instructed my provost-marshai and officers that if the criminal court of Shelby or any other county attempts by writs or otherwise to enforce those State laws, in contradiction with the piain laws of the United States, they must treat the sheriff or constable as in “contempt.” I admit there is a direct issue between the United States and the State of Tennessee in this matter; but a county criminal court is not the place to adjudicate it. There isa tribunal provided by our fundamental law—our Constitution—viz, the Supreme Court of the United States, fit and proper to pass on such momentous issues. Until that tribunal makes its decision, I shall obey the plain law of Congress and the order of the President of the United States under it, and my army sball be used to enforce it.

1 wish I had seen your charge before it was delivered, as I believe you would have modified it; at all events, that you would not have given such prominence to the impracticable statutes you quote. I wish to repeat that I appreciate the sense of duty that actuated you to assert what you believed to be the only law, and I hope you will award to me similar zeal when you allow for the sudden and stern conelusions to which military minds sometimes attain by a rapid intuition or judgment.

I also repeat that I am still anxious you should continue your court, and constitutionally and judiciously enforce the law against the many mischievous persons that infest your community. For God’s sake, don’t let this accursed question of slavery blind your mind to the thousand other duties and interests that concern you and the people among whom

ou live. : As you can perceive, I throw off these ideas, leaving you to fill up the logical picture. In my seeming leaning toward men of your character, I have risked my reputation and ability for good. Do not force me to conclude the conflict to be “irreconcilable,” as you surely will if you or your grand jury or the officers of your court insist on enforcing the statutes of Tennessee touching negroes at this terrible crisis of our history. With much respect,

your obedient servant,

Major-General.