Part 6

But the Senator from Kentucky tells us that the original defect in the notice by the President is of such a character that it cannot be cured by any subsequent ratification; and he proceeds to present what he will excuse me if I call imaginary cases, which I think could hardly occur, and are widely different from that under consideration. I express no opinion on the cases he does present,--as, for instance, if the President, during the recess of Congress, should undertake to involve the country in war. Let that case take care of itself, when it arises for judgment. The case before us is more simple, and is one with regard to which there are no private rights or interests. It is a domestic question between Congress and the President. He has given the notice. As regards the Government of Great Britain, that notice, I cannot doubt, is perfectly valid. That Government will never call it in question. For our own security, and that our precedents may conform to just principles, we now propose by formal Act of Congress to throw over this notice of the President the shield of Congressional sanction; and the question is, Can this be done? Can Congress, by an act of ratification, impart to the original notice of the President that power and character which, without subsequent ratification, it would not have? On that point I content myself with reading the authoritative words of the Supreme Court of the United States in the decisions known as the _Prize Cases_. There the Court express themselves as follows.

“Without admitting that such an act was necessary under the circumstances, it is plain, that, if the President had in any manner assumed powers which it was necessary should have the authority or sanction of Congress, that, on the well-known principle of law, ‘_Omnis ratihabitio retrotrahitur et mandato æquiparatur_,’ this ratification has operated to perfectly cure the defect. In the case of _Brown_ v. _United States_, (8 Cranch, 131, 132, 133,) Mr. Justice Story treats of this subject, and cites numerous authorities, to which we may refer, to prove this position, and concludes: ‘I am perfectly satisfied that no subject can legally commit hostilities or capture property of an enemy, when, either expressly or constructively, the sovereign has prohibited it. But suppose he does, I would ask if the sovereign may not ratify his proceedings, and thus, by a retroactive operation, give validity to them?’”[46]

All now proposed is that Congress shall ratify the notice to the British Government, and by retroactive operation give validity to it.

…

Mr. President, if this concerned private rights,--if, according to the language of the Senator from Kentucky, there were any question of _meum_ and _tuum_,--there might be force in his argument. But no private rights are involved, and there are no private individuals affected in any way by the proposed ratification of the notice already given. Therefore I put out of view that suggestion. It is, then, simply a question of power on the part of Congress, with no question of private rights.

I conclude that Congress has the power, and I put my conclusion on two distinct grounds. The first is the reason of the case, its common sense; for without this power I can imagine difficulties or embarrassments in the administration of government. I say the power must exist in Congress of ratifying, if it sees fit, certain executive acts. The second ground is judicial authority. The Supreme Court of the United States, after careful consideration in recent cases which the country knows received the amplest attention and were most fully argued, has affirmed the power of Congress to ratify an executive act which without such ratification might otherwise be invalid. But I do not content myself with referring to that single decision, recent and authoritative as it is; I recall attention also to that earlier decision which is adduced in the Prize Cases, the case of _Brown_ v. _The United States_, which is well known to all lawyers as one of the best-reasoned judgments in our books, and in that case you will find the same power attributed to Congress.

Therefore, on grounds of reason and of authority, I am not permitted to doubt that Congress may exercise this power.

The resolution was adopted without a division, and communicated to Mr. Adams in a despatch of Mr. Seward, under date of February 13, 1865.[47]

RETALIATION, AND TREATMENT OF PRISONERS OF WAR.

SPEECHES IN THE SENATE, ON A JOINT RESOLUTION ADVISING RETALIATION, JANUARY 24 AND 29, 1865.

January 18th, Mr. Howard, of Michigan, from the Committee on Military Affairs, reported the following joint resolution.

“JOINT RESOLUTION, advising Retaliation for the Cruel Treatment of Prisoners by the Insurgents.

“_Whereas_ it has come to the knowledge of Congress that great numbers of our soldiers, who have fallen as prisoners of war into the hands of the insurgents, have been subjected to treatment unexampled for cruelty in the history of civilized war, and finding its parallels only in the conduct of savage tribes,--a treatment resulting in the death of multitudes by the slow, but designed, process of starvation, and by mortal diseases occasioned by insufficient and unhealthy food, by wanton exposure of their persons to the inclemency of the weather, and by deliberate assassination of innocent and unoffending men, and the murder in cold blood of prisoners after surrender; and whereas a continuance of these barbarities, in contempt of the laws of war, and in disregard of the remonstrances of the national authorities, has presented to us the alternative of suffering our brave soldiers thus to be destroyed, or to apply the principle of retaliation for their protection; Therefore,

“_Resolved by the Senate and House of Representatives of the United States of America in Congress assembled_, That in the judgment of Congress it has become justifiable and necessary that the President should, in order to prevent the continuance and recurrence of such barbarities, and to insure the observance by the insurgents of the laws of civilized war, resort at once to measures of retaliation; that in our opinion such retaliation ought to be inflicted upon the insurgent officers now in our hands, or hereafter to fall into our hands, as prisoners; that such officers ought to be subjected to like treatment practised towards our officers or soldiers in the hands of the insurgents, in respect to quantity and quality of food, clothing, fuel, medicine, medical attendance, personal exposure, or other mode of dealing with them; that, with a view to the same ends, the insurgent prisoners in our hands ought to be placed under the control and in the keeping of officers and men who have themselves been prisoners in the hands of the insurgents, and have thus acquired a knowledge of their mode of treating Union prisoners; that explicit instructions ought to be given to the forces having the charge of such insurgent prisoners, requiring them to carry out strictly and promptly the principles of this resolution in every case, until the President, having received satisfactory information of the abandonment by the insurgents of such barbarous practices, shall revoke or modify said instructions. Congress do not, however, intend by this resolution to limit or restrict the power of the President to the modes or principles of retaliation herein mentioned, but only to advise a resort to them as demanded by the occasion.”

January 23d, Mr. Wade, of Ohio, moved to proceed with its consideration, when the following passage occurred.

MR. WADE. I move to take up Senate resolution No. 97

MR. SUMNER. What is it about?

MR. WADE. About retaliation.

MR. SUMNER. I would not go on with that to-day.

MR. WADE. You would, if you were in prison. [_Laughter._]

The resolution was taken up and debated.

* * * * *

January 24th, Mr. Sumner moved the following resolutions as a substitute.

“_Resolved_, That retaliation is harsh always, even in the simplest cases, and is permissible only where, in the first place, it may be reasonably expected to effect its object, and where, in the second place, it is consistent with the usages of civilized society; and in the absence of these essential conditions, it is a useless barbarism, having no other end than vengeance, which is forbidden alike to nations and to men.

“_Resolved_, That the treatment of our officers and soldiers in Rebel prisons is cruel, savage, and heart-rending beyond precedent; that it is shocking to morals; that it is an offence against human nature itself; that it adds new guilt to the crime of the Rebellion, and constitutes an example from which history will turn with sorrow and disgust.

“_Resolved_, That any attempted imitation of Rebel barbarism in the treatment of prisoners is plainly impracticable, on account of its inconsistency with the prevailing sentiments of humanity among us; that it would be injurious at home, for it would barbarize the whole community; that it would be utterly useless, for it could not affect the cruel authors of the revolting conduct we seek to overcome; that it would be immoral, inasmuch as it proceeded from vengeance alone; that it could have no other result than to degrade the national character and the national name, and to bring down upon our country the reprobation of history; and that, being thus impracticable, useless, immoral, and degrading, it must be rejected as a measure of retaliation, precisely as the barbarism of roasting or eating prisoners is always rejected by civilized powers.

“_Resolved_, That the United States, filled with grief and sympathy for cherished fellow-citizens who, as officers and soldiers, have become the victims of Heaven-defying outrage, hereby declare their solemn determination to end this great iniquity by ending the Rebellion of which it is the natural fruit; that, to secure this humane and righteous consummation, they pledge anew their best energies and the resources of the whole people; and they call upon all to bear witness that in this necessary warfare with barbarism they renounce all vengeance and every evil example, and plant themselves firmly on the sacred landmarks of Christian civilization, under the protection of that God who is present with every prisoner, and enables heroic souls to suffer for their country.”

Mr. Sumner addressed the Senate in support of his resolutions. After analyzing the resolution of the Committee, and exhibiting its character, he proceeded:--

Now, Sir, I believe that the Senate will not venture, in this age of Christian light, under any inducement, under any provocation, to counsel the Executive Government to enter into such open competition with barbarism. Sir, the thing is impossible; it must not be entertained. We cannot be cruel, or barbarous, or savage, because the Rebels we now meet in warfare are cruel, barbarous, and savage. We cannot imitate the detested example. We find no precedent for such retaliation in our own history nor in the history of other nations. We find no precedent, I say, in our own history. This question was one of the earliest presented to General Washington after taking command of the American forces at Cambridge. From his headquarters there, under date of August 11, 1775, he addressed a letter to General Gage, commander of the British forces in Boston, which, as I believe, contains the full extent to which a nation can honorably go; and I must say, that, as I read it, I felt new pride in that commander who thus early in the discharge of his great duties showed such insight into their proper limits and responsibilities. Addressing General Gage, he said:--

“SIR,--I understand that the officers engaged in the cause of Liberty and their country, who by the fortune of war have fallen into your hands, have been thrown indiscriminately into a common jail appropriated for felons; that no consideration has been had for those of the most respectable rank, when languishing with wounds and sickness; and that some have been even amputated in this unworthy situation.”

Then, reminding the British commander of the cause in which he was engaged, Washington continued:--

“My duty now makes it necessary to apprise you that for the future I shall regulate all my conduct towards those gentlemen who are or may be in our possession exactly by the rule you shall observe towards those of ours now in your custody. If severity and hardship mark the line of your conduct, painful as it may be to me, your prisoners will feel its effects; but if kindness and humanity are shown to ours, I shall with pleasure consider those in our hands only as unfortunate, and they shall receive from me that treatment to which the unfortunate are ever entitled.”[48]

Senators about me say, “That is sound.” I am glad they say so; and if they can find in this correspondence any sanction of the savage system now inaugurated in Rebel prisons, let them point it out. The correspondence has its own limitations in the statement of facts on which it proceeds, which you will please observe. Prisoners had been thrown indiscriminately into a common jail for felons, and with no consideration for those of the most respectable rank, even when languishing with wounds and sickness; and some of them had limbs amputated in this unworthy situation. But there is, Sir, no such painful suggestion as that in our resolution: they had not “been subjected to treatment unexampled for cruelty in the history of civilized war, and finding its parallels only in the conduct of savage tribes,--a treatment resulting in the death of multitudes by the slow, but designed, process of starvation”: no such thing appears in the case; and the judgment of Washington was applied strictly to the facts before him.

This is not all. Search the history of our country, and you find that the practice is fixed, while the rule has received an accuracy of statement from which there can be no escape. I have before me the words of Chancellor Kent, in his valuable Commentaries:--

“Instances of resolutions to retaliate on innocent prisoners of war occurred in this country during the Revolutionary War, as well as during the War of 1812; but there was no instance in which retaliation, beyond the measure of severe confinement, took place in respect to prisoners of war.”[49]

There you have the authoritative testimony of that great expounder of our history and of our jurisprudence, the late Chancellor Kent. I add also the testimony of another American writer, whom I have quoted more than once in this Chamber, General Halleck, who, in his work on International Law, thus expresses himself:--

“Retaliation should be limited to such punishments as may be requisite for our own safety and the good of society; beyond this it cannot be justified. We have no right to mutilate the ambassador of a barbarous power because his sovereign has treated our ambassador in that manner, nor to put prisoners and hostages to death, and to destroy private property, merely because our enemy has done this to us; for no individual is justly chargeable with the guilt of a personal crime for the acts of the community of which he is a member.”[50]

I said, Sir, the practice proposed was without precedent in the history of other nations. I believe that I am right. I am confident that no authentic record can be shown where such savage treatment has been imitated in retaliation by a Christian power. One of the most learned writers on the Law of Nations, Vattel, dealing with this very subject, aptly puts the following question:--

“By what right will you cause the nose and ears of the ambassador of a barbarian to be cut off who shall have treated your ambassador in this manner?”[51]

That question strikes at the heart of this whole subject. What right have you to adopt any barbarous conduct because the barbarous enemy with whom you deal has set the example? This same eminent publicist, in another place, says:--

“The Roman Senate held it as a maxim, that war was to be carried on with arms, and not with poison.… The Senate, and Tiberius himself, thought it not permissible to employ poison, even against a perfidious enemy, and as a kind of retortion or reprisal.”[52]

That statement covers the whole case. Why is it unlawful in retaliation to adopt poison? Because it is barbarous. And for the same reason it is unlawful for us to adopt starvation, to adopt all that cruel system of treatment so emphatically set forth in the preamble to this resolution. And while, Sir, I concede that by the Laws of War retaliation is permissible, yet it has its limits; and those limits, as I venture to say in the resolutions sent to the Chair as a substitute, are at least twofold: first, the retaliation must be useful, it must reasonably promise some practical result; and, in the second place, it must be in harmony with the usages of civilized nations. The retaliation now proposed is useless, for it can have no practical result; and it is not in harmony with the usages of civilized nations.

I have said that the Laws of War recognize retaliation, as appears in the recent most formal and explicit declaration to be found in the very elaborate “Instructions for the Government of Armies of the United States in the Field,”[53] prepared since this war began, under the direction of a learned commission, and by the pen of one of the ablest and most accomplished publicists of our age. I refer to Dr. Lieber, for many years professor in South Carolina College, and now professor in Columbia College, New York. In these Instructions the general law of retaliation is affirmed.

“The Law of War can no more wholly dispense with retaliation than can the Law of Nations, of which it is a branch. Yet civilized nations acknowledge retaliation as the sternest feature of war. A reckless enemy often leaves to his opponent no other means of securing himself against the repetition of barbarous outrage.”[54]

Such is the general principle, officially declared. And now, Sir, I shall read the commentary of this same learned publicist on these very Instructions in a private letter which I have received from him this morning. Bear in mind, Sir, that the writer is a student of the Laws of War, that he vindicates their exercise, and that in proper cases he asserts the right of retaliation; and now allow me to present his criticism on the retaliation proposed.

“I am unqualifiedly against the retaliation resolutions concerning prisoners of war. The provision that the Southerners in our hands shall be watched over by national soldiers who have been in Southern pens is unworthy of any great people or high-minded statesman. I am not opposed to retaliation because it strikes those who are not or may not be guilty of the outrage we wish to put an end to. That is the terrible character of almost all retaliation in war. I abhor this revenge on prisoners of war, because we would sink thereby to the level of the enemy’s shame and dishonor. All retaliation has some limit. If we fight with Indians who slowly roast their prisoners, we cannot roast in turn the Indians whom we may capture. And what is more, I defy Congress or Government to make the Northern people treat captured Southerners as our sons are treated by them. God be thanked, you could not do it; and if you could, how it would brutalize our own people! I feel the cruelty as keenly as any one; I grieve most bitterly that people whom we and all the world have taken to possess the common attributes of humanity, and who, after all, are our kin, have sunk so loathsomely low; I feel the hardship of seeing no immediate and direct remedy, except conquering and trampling out the vile Rebellion; but I maintain that the proposed (yet unfeasible) retaliation is not the remedy. Indeed, calmly to maintain our ground would do us in the end far more good. Revenge is passion, and ought never to enter the sphere of public action. Passion always detracts from power.

“I believe that the ineffable cruelty practised against our men has been equalled in the history of our race by the Spanish treatment of the Indians, and by the Inquisition; but counter cruelty would not mend matters. Those who can allow such crimes would not be moved by cruelties inflicted upon their soldiers in our hands. These cruelties, therefore, would be simply revenge, not retaliation; for retaliation, as an element of the Law of War, and of Nations in general, implies the idea of thereby stopping a certain evil. But no mortal shall indulge in revenge.

“I am, indeed, against all dainty treatment of the prisoners in our hands; but, for the love of our country and the great destiny of our people, do not sink, even in single cases, to the level of our unhappy, shameless enemy.”

I have read this letter, and I quote it as authority, because it is by the very pen which embodied retaliation in the Instructions to the Armies of the United States.

There is another authority which I quote. It is Phillimore, the accomplished publicist, whose elaborate work on the Law of Nations has a learning second only to that of Grotius in treating the same subject. Recording excesses of war by the French, this Englishman says:--

“At the beginning of the wars of the first French Revolution, the French general announced his intention of giving no quarter to English prisoners. The English did not retaliate, and the Laws of War upon this subject were soon restored.”[55]

In other words, the Laws of War are essentially humane, and not to be changed by any spasm of barbarism in an enemy.

A debate of several days ensued, in which Mr. Wade and Mr. Howard argued earnestly for the resolution of the Committee, and they were sustained by Mr. Gratz Brown, of Missouri, Mr. Howe, of Wisconsin, Mr. Harlan, of Iowa, Mr. Clark, of New Hampshire, Mr. Wilkinson, of Minnesota, Mr. Chandler, of Michigan, and Mr. Lane, of Indiana. On the other side were Mr. Cowan, of Pennsylvania, Mr. Hendricks, of Indiana, Mr. Henderson, of Missouri, Mr. Foster, of Connecticut, Mr. Davis, of Kentucky, Mr. Reverdy Johnson, of Maryland, Mr. Richardson, of Illinois, Mr. McDougall, of California, and Mr. Doolittle, of Wisconsin. Mr. Chandler especially condemned the position of Mr. Sumner. Here he said:--