Chapter III: Front Matter (3)

MR. PRESIDENT,--Exceptional crimes require exceptional remedies. Here is an exceptional crime,--one of the most atrocious in the history of any country. There must be a remedy commensurate with the crime. And, Sir, the remedy, in order to be anything but a name, should be swift. It cannot wait the slow ceremony of ordinary proceedings. It must have promptitude such as can be imparted by the proposition now under consideration. I thank the Senator from Iowa for bringing it forward. Let us vote upon it, put it on its passage, speed it on its way; for only by doing so can we wash our hands of this blood.

The resolution was adopted without a division.

THE LATE HON. EDWARD EVERETT.

TELEGRAPHIC DESPATCH TO JOINT COMMITTEE OF THE LEGISLATURE OF MASSACHUSETTS, JANUARY 16, 1865.

BOSTON, January 16, 1865.

TO HON. CHARLES SUMNER.

A Joint Committee of the Legislature invoke you to deliver
a Eulogy upon Hon. Edward Everett before the State
authorities at such time as meets your convenience during
the session of the Legislature. Please answer at once by
telegraph.

MOSES KIMBALL.

Mr. Sumner answered by telegraph as follows.

Sharing the general grief in the loss of a rare and pure patriot,
I regret that public duties here seem to prevent me from uniting
with the Legislature in the honors they propose to his memory.
I am grateful to the Joint Committee for the opportunity they
offer me of commemorating a great example of genius, learning,
and eloquence, consecrated to patriotic service; but the probable
session of the Senate and the exigencies of public business
(which are always my first duty) make me fear that I cannot
respond to their summons. I mention with hesitation, but to
explain the rule which is with me obligatory, that, during my
long term in the Senate, I have never left my seat for a single
day, except while an invalid. Be good enough to accept my thanks
and sympathies.

CHARLES SUMNER.

TERMINATION OF TREATIES BY NOTICE.

REMARKS IN THE SENATE, ON A JOINT RESOLUTION TO TERMINATE THE TREATY OF 1817 REGULATING THE NAVAL FORCE ON THE LAKES, JANUARY 18, 1865.

January 18th, the Senate considered a joint resolution passed
by the House of Representatives, for the termination of the
treaty between the United States and Great Britain regulating
the naval force on the Lakes.

The resolution, as it was passed by the House of
Representatives, recited, that the Treaty of 1817, as to
the naval force upon the Lakes, was designed as a temporary
arrangement only, and, although equal and just at the time it
was made, has become greatly unequal through the construction
by Great Britain of sundry ship-canals,--that the vast
interests of commerce upon the Northwestern Lakes, and the
security of cities and towns situated on their American
borders, manifestly require the establishment of one or more
navy-yards wherein ships may be fitted and prepared for naval
warfare,--and that the United States Government, unlike that of
Great Britain, is destitute of ship-canals for the transmission
of gunboats from the Atlantic Ocean to the Western Lakes,--and
therefore proposed to direct the President of the United States
to give notice to the Government of Great Britain that it is
the wish and intention of the Government of the United States
to terminate the arrangement of 1817, in respect to the naval
force upon the Lakes, at the end of six months from and after
giving the notice.

Mr. Sumner, from the Committee on Foreign Relations, reported
the following substitute.

“JOINT RESOLUTION to terminate the Treaty of 1817,
regulating the Naval Force on the Lakes.

“_Whereas_ the United States, of the one part, and the
United Kingdom of Great Britain and Ireland, of the other
part, by a treaty bearing date April, 1817, have regulated
the naval force upon the Lakes, and it was further
provided, that, ‘if either party should hereafter be
desirous of annulling this stipulation, and should give
notice to that effect to the other party, it shall cease
to be binding after the expiration of six months from
the date of such notice’; and whereas the peace of our
frontier is now endangered by hostile expeditions against
the commerce of the Lakes, and by other acts of lawless
persons, which the naval force of the two countries allowed
by the existing treaty may be insufficient to prevent; and
whereas, further, the President of the United States has
proceeded to give the notice required for the termination
of the treaty by a communication which took effect on the
23d November, 1864: Therefore,

“_Be it resolved by the Senate and House of Representatives
of the United States of America in Congress assembled_,
That the notice given by the President of the United States
to the Government of Great Britain and Ireland to terminate
the Treaty of 1817, regulating the naval force upon the
Lakes, is hereby adopted and ratified, as if the same had
been authorized by Congress.”

The substitute was adopted, and the question was on the passage
of the resolution as amended.

As appears from the amended resolution, the President had
already given the notice for the termination of the treaty.

Mr. Davis, of Kentucky, opposed the resolution, on the ground
that the notice to terminate a treaty can be given only by
Congress,--that the President had no more power to give the
notice than the Judiciary,--and that his interference with the
legislative power ought to be condemned, instead of approved by
adopting it.

Mr. Sumner replied, that the difference between the Senator
and the Committee was of form; and he proceeded to read a
communication, bearing date November 23, 1864, from Mr. Adams
to Earl Russell, setting forth the grievances on our northern
frontier, and giving formal notice, that, “in conformity with
the treaty reservation of the right, at the expiration of six
months from the date of this note the United States will deem
themselves at liberty to increase the naval armament upon the
Lakes, if in their judgment the condition of affairs in that
quarter shall then require it.” On this note was minuted:
“Delivered at the Foreign Office at fifteen minutes past six
o’clock, P. M.” In considering the validity of the notice by
the President, he referred to authorities, showing that a
treaty, like a law, could be repealed only by the legislative
power,[45] and argued that notice to terminate it must be given
by the same power. Mr. Sumner further said:--

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:--

“Sir, the Senator from Massachusetts [Mr. SUMNER] has
brought in a sublimated specimen of humanitarianism that
does not apply to these accursed Rebels at this time. They
do not appreciate that kind of humanitarianism. I expected
those men who desire that the Rebellion should succeed to
oppose retaliation, and to oppose it to the bitter end; but
I did not expect the Senator from Massachusetts to come
in here and say that it was inexpedient to protect our
suffering prisoners.”

MR. SUMNER. “I have not said so.”

Mr. Wilson, of Massachusetts, moved as a substitute for Mr.
Sumner’s amendment a simple resolution requiring the President
“to appoint two commissioners to confer with the Confederate
authorities, with a view of devising some practicable plan for
the relief and better treatment of our prisoners of war.” Mr.
Clark, of New Hampshire, offered still another substitute, to
be considered when in order:--

“That Congress earnestly calls the attention of the
President to the condition and treatment of our prisoners
of war in Rebel prisons and camps; and if, for reasons
satisfactory to or controlling the Executive, they cannot
be exchanged, desires that he should employ every means
in his power, embracing retaliation to such a degree as
may be proper and effectual, to prevent the continuance
and recurrence of such barbarities, and to compel the
insurgents to observe the laws of civilized warfare.”

Mr. Wade, who was urging the original resolution, also gave
notice of an amendment, to strike out all after the word
“retaliation,” and insert as follows:--

“That the executive and military authorities of the United
States are hereby directed to retaliate upon the prisoners
of the enemy in such manner _and kind_ as shall be
effective in deterring him from the perpetration in future
of cruel and barbarous treatment of our soldiers.”

Mr. Wade recognized the change so far as to say, “Now, if a
Senator is for retaliation, if he is for the principle of
it, he cannot have it in a milder form than it is there.”
Mr. Morrill proposed to strike out the words “and kind,” and
insert, instead, “in conformity to the Laws of Nations,” which
amendment was accepted by Mr. Wade.

January 28th, in the course of the debate, Mr. Sumner said:--

MR. PRESIDENT,--Listening with interest to this debate, and noting the various propositions to modify the original resolution of the Committee, especially that of the Senator [Mr. WADE] who has urged it so vehemently, and then again the modification even of this modification, I have been reminded of the story told by Byron[56] of Mr. Fox, afterwards British minister at Washington, and now sleeping in our Congressional burial-ground, who said of himself, after an illness in Naples, that he was “so changed that his oldest creditors would hardly know him.” But no illness could work a greater change than is promised in the resolution of the Committee. In the form it is about to assume, its oldest supporter will hardly know it. The ancient legend of the ship of Theseus is revived. That famous ship, which bore the Athenian hero on his adventurous expedition to Crete, was piously preserved in the arsenal of Athens, where its decaying timbers were renewed, until, in the lapse of time, every part of the original ship had disappeared, and nothing but the name remained. Are we not witnessing a similar process, to end, I trust, in a similar disappearance?

In its original form, the resolution so earnestly maintained by my friends from Ohio and Michigan called for retaliation in kind,--eye for eye, tooth for tooth, cruelty for cruelty, freezing for freezing, starvation for starvation, death for death. The President was commanded to imitate Rebel barbarism in all respects, point by point. This command I felt it my duty to resist. I said nothing against retaliation according to the laws and usages of civilized nations, for that I know is one of the terrible incidents of war; but I resisted a principle which civilization disowns. The resolutions I offered as a substitute were intended as a sort of “earthwork” in support of this resistance. Perhaps they have already accomplished their purpose, inasmuch as Senators have evacuated their original position.

The question is solemn enough, and yet, as I recall the original resolution, I am reminded of an incident, more comic than serious, which occurred at Paris, while occupied by the conquering Prussians, in 1814. A Prussian soldier was brought before the Governor, charged with unmercifully beating a Frenchman, at whose house he was billeted, for not supplying a bottle of Berlin _weissbier_, which the Prussian insisted upon drinking. The Governor spoke of unreasonableness in the demand, and declared that he should be obliged to inflict severe punishment, when the Prussian soldier set up the Law of Retaliation. “I was a little boy,” said he, “when a French dragoon beat my father because he was unable to find a bottle of claret in our whole village, and I then swore, that, if ever I reached France, I would beat a Frenchman for not getting me a bottle of _weissbier_. Am I not right?” This was retaliation in kind, and retrospective in operation, like that of the original resolution.

Much as this resolution is changed, so that it no longer requires retaliation in kind, I think it might be changed still further. It is not enough, on such an occasion, and especially after avowals made in this Chamber, to say that retaliation shall be according to the principles of Public Law. Montesquieu, in his “Spirit of Laws,” exhibits the uncertainty of this language. These are his words:--

“All nations have a Law of Nations,--even the Iroquois, who
eat their prisoners. They send and receive ambassadors; they
know the Laws of War and Peace. The evil is, that their Law of
Nations is not founded on true principles.”[57]

The resolution, therefore, for the sake of certainty, and to give double assurance that humanity shall not suffer, ought to be still further amended, by limiting the retaliation to the usages of civilized society. This amendment becomes the more needful since Senators argue that by the principles of public law the intolerable cruelties of the Rebellion may be retaliated.

I desire to repeat my unalterable conviction that these cruelties cannot be retaliated in kind. And here I call attention to the opinions of an illustrious citizen, only recently removed from the duties of this world. I refer to the late Edward Everett, who, in a speech at Faneuil Hall, a few days before his lamented death, thus testifies in what may be called his dying words:--

“I believe the best way in which we can retaliate upon the
South for the cruel treatment of our prisoners is for us to
continue to treat their prisoners with entire humanity and
all reasonable kindness,--and not only so, but to seize every
opportunity like the present to go beyond this. Indeed, it is
no more than our duty to treat the prisoner well. The Law of
Nations requires it. The Government that refuses or neglects it
does not deserve the name of civilized. Even inability is no
justification. If you are yourself so exhausted that you cannot
supply your prisoner with a sufficient quantity of wholesome
food, you are bound, with or without exchange, to set him free.
You have no more right to starve than to poison him. It will,
however, be borne in mind, that, while the hard fare of our
prisoners is defended by the Southern leaders, on the ground
that it is as good as that of their own soldiers, at the same
time they maintain that their harvests are abundant and their
armies well fed. There is no merit in treating a prisoner with
common humanity; it is simply infamous and wicked to treat him
otherwise.”[58]

You will not fail to observe how positive is his opinion on the limits of retaliation, and its character when carried beyond proper limits. And here it is proper to remark, that Mr. Everett was not only a patriot, who, in the latter trials of the Republic, devoted himself ably, purely, and successfully to the vindication and advancement of the national cause, but he was a publicist, who had profoundly studied the Law of Nations. Few in our history have understood it better. His last labors were devoted to this important subject. At the time of his death he was preparing a course of lectures upon it. Therefore, when, in the name of Public Law, he speaks against any imitation of Rebel barbarism, it is with the voice of authority.

From one eminent publicist I pass to another. On a former occasion I took the liberty of introducing a familiar letter from Professor Lieber, once of South Carolina, now of New York. The Senator from Michigan [Mr. HOWARD], not content with attempting an answer to the learned professor, proceeded to language with regard to him which I am sure his careful judgment cannot approve. The friend whose letter I read needs no praise as a practical writer and thinker on questions of International Law. On account of his acknowledged fitness as a master of this science, he was selected as commissioner to prepare instructions for the armies of the United States, constituting a most important chapter of the Law of Nations. Those instructions are the evidence of his ability and judgment. So long as they are followed by our Government, it will be difficult for the Senator, learned as he unquestionably is, to impeach their distinguished author. There is no Senator, not excepting the Senator from Michigan, who might not be proud to have such a monument of fame. But he is no mere theorist. It was on the field of battle, where, as a youthful soldier, he was left for dead, that he began a practical acquaintance with those Laws of War which he has done so much to expound.

And now let me read a commentary on the Law of Retaliation by this authority. I quote from an article which has already appeared in the New York “Times.”

“No mawkish sentimentality has induced the writer to express
his views. He has had dear friends in those Southern pens,
which have become the very symbols of revolting barbarity; but
he desires, for this very reason, that the subject be weighed
without passion, which never counsels well,--especially without
the passion of mere vengeance. Let us bring down this general
call for retaliation to practical and detailed measures. It is
supposed, then, that retaliation is resolved upon; what next?
The order is given to harass, starve, expose, and torture,
say twenty thousand prisoners in our hands, until their bones
pierce the skin, and they die idiots in their filth. Why should
things be demanded which every one knows the Northern man is
incapable of doing?

“If, however, by retaliation he meant that captured Rebels
in our hands should be cut off from the pleasant comforts
of life which Northerners subservient to the South love to
extend to them, then, indeed, we fully agree. This treasonable
over-kindness ought never to have been permitted. It has had
the worst effect on the arrogance of our enemy; but prohibiting
it is not, and cannot be called, retaliation.

“Let us not be driven from the position of manly calmness and
moral dignity; and let us, on the other hand, be stern, so
stern that our severity shall impress the prisoners that they
are such. But let us not follow Rebel examples. It is too
sickening, too vile.”

Such is the testimony of Francis Lieber, in entire, but independent, harmony with the testimony of Edward Everett. As authority, nothing further can be desired. And yet the question is still debated, and grave Senators take counsel of their indignation rather than of the law.

The earnestness which has characterized this discussion attests the interest of the subject, and the interest here is only a reflection of that throughout the country. When you speak of our brave officers and soldiers suffering, languishing, pining, dying in Rebel prisons, you touch a chord which vibrates in every patriot bosom. He must be cold, sluggish, and inhuman,--so cold “that nought can warm his blood, Sir, but a fever,”[59]--who is not moved to every possible effort for their redemption.

I am happy to see that the Secretary of War is not insensible to this commanding duty. Here is an extract from a communication which he sent to the House of Representatives as late as January 21st:--

“On the 15th October the subject of exchanges was placed under
the direction of Lieutenant-General Grant, with full authority
to take any steps he might deem proper to effect the release
and exchange of our soldiers, and of loyal persons, held as
prisoners by the Rebel authorities. He was instructed that it
was the desire of the President that no efforts consistent
with national safety and honor should be spared to effect the
prompt release of all soldiers and loyal persons in captivity
to the Rebels as prisoners of war, or on any other grounds, and
the subject was committed to him with full authority to act in
the premises as he should deem right and proper. Under this
authority the subject of exchanges has from that time continued
in his charge, and such efforts have been made as he deemed
proper to obtain the release of our prisoners.

“An arrangement was made for the supply of our prisoners,--the
articles to be distributed under the direction of our own
officers, paroled for that purpose; and the corresponding
privilege was extended to the Rebel authorities. In order to
afford every facility for relief, special exchanges have been
offered, whenever desired on behalf of our prisoners. Such
exchanges have in a few instances been permitted by the Rebel
authorities, but in many others they have been denied.

“A large number of exchanges, including all the sick, has
been effected within a recent period. The Commissary General
of Prisoners has been directed to make a detailed report of
all the exchanges that have been accomplished since the
general exchange ceased. It will be furnished to the House of
Representatives as soon as completed.

“The last communication of General Grant gives reason to
believe that a full and complete exchange of all prisoners
will speedily be made. It also appears from his statement that
weekly supplies are furnished to our prisoners, and distributed
by officers of our own selection.”[60]

Let these instructions be followed, and it is difficult to see what remains to be done. Exchange, retaliation, and every other agency “right and proper,” are fully authorized in the discretion of the commanding general. There is nothing in the arsenal of war he may not employ. What more is needed? But this brings me again to the proposition before the Senate.

The Committee, not content with what has been done,--distrustful, perhaps, of the commanding general,--propose that Congress shall instruct the President to enter upon a system of retaliation, _where we shall imitate as precisely as possible Rebel barbarism_, and make our prisons the scenes of torments we here denounce. Why, Sir, to state the case is to answer it. The Senator from Michigan, who advocates so eloquently this _unprecedented retaliation_, attempted a description of the torments making the Rebel prisons horrible, but language failed him. After speaking of their “immeasurable criminality,” and “the horrors of those scenes,” which he said were “absolutely indescribable,” beggaring even his affluence of language and of passion, he proceeded to ask that we should do these same things,--that we should take the lives of prisoners, even by freezing and starvation, or turn them into living skeletons,--by Act of Congress.

Sir, the Law of Retaliation, which he invokes, has its limits, and these are found in the laws of civilized society. Admit the Law of Retaliation; yet you cannot escape from its circumscription. As well escape from the planet on which we live. What civilization forbids cannot be done. Your enemy may be barbarous and cruel, but you cannot be barbarous and cruel. The rule is clear and unquestionable. Perhaps the true principle of law on this precise point was never better expressed than by one of our masters, William Shakespeare, natural jurist as well as poet, when he makes Macbeth exclaim,--

“I dare do all that may become a man;
Who dares do more is none.”

So with us now. We are permitted to do all that may become men, but nothing more.

Surely nobody will argue that the “barbarities of Andersonville,” and all those tortures we deplore, can behoove men. As well undertake, by way of retaliation, to revive the boot and thumb-screw of the Inquisition, the fires of Smithfield, “Luke’s iron crown and Damien’s bed of steel,” or to repeat that execrable crime pictured by Dante, in one of his most admired passages, where Ugolino and his children were shut up in a tower, without food or water, and left to die slowly, cruelly, wickedly, by starvation:--

“Thou modern Thebes! what though, as Fame hath said,
Count Ugolino did thy forts betray?
His sons deserved not punishment so dread.”[61]

Thanks to the immortal poet who has blasted forever this sickening enormity, and rendered its imitation impossible! Thanks to that mighty voice which has given new sanction to the mandate of Public Law. And yet in this terrible case there was retaliation, and the famished victim is revealed as ferociously gnawing the skull of his tormentor. But this was not on earth.

It is when we consider precisely the conduct of the Rebels, as represented,--when we read the stories of their atrocities,--when we call to mind the sufferings of our men in their hands,--when we look on the pictures introduced into this discussion, where photographic art has sought to exhibit the living skeletons,--when the whole scene in all its horror is before us, and our souls are filled with unutterable anguish, that we confess how difficult, how absolutely impossible, it is for us to follow this savage example. And just in proportion as this treatment of our soldiers transcends the usages of civilized society must the example be rejected. Such is the law you cannot disobey.

Nor am I to be considered indifferent to the condition of those unhappy prisoners. I do not yield to the Committee, or to any Senator, in ardor or anxiety for their protection. Whatever can be done I am ready to do. But, as American citizens, they have an interest that we should do nothing by which our country shall forfeit the great place belonging to it in the vanguard of nations. It cannot be best for them that our country should do an unworthy thing. It cannot be best for them that the national destiny should be thus darkened. Duties are in proportion to destinies, and from the very heights of our example I argue again that we cannot allow ourselves, under any passing passion or resentment, to accept a policy which history must condemn. There is not a patriot soldier who would not cry out, “Let me suffer, but save my country!”

Even if you make up your minds to do this thing, you cannot. The whole idea is impracticable. The attempt must fail, because human nature is against you. “_Nemo repente turpissimus._” A humane and civilized people cannot suddenly become inhuman and uncivilized. Conscience, heart, soul and body, will all rise against you. From every side will be repeated that generous cry which comes to us from the darkest day of French history, when the courageous governor said to the monarch who ordered the massacre of St. Bartholomew, “Sire, I have under me good citizens and brave soldiers, but not a single executioner”; or that other later cry, when the French Convention, under the lead of Barère, decreed that all English prisoners should be shot,--“We will not shoot them,” said a stout-hearted sergeant; “if the Convention takes pleasure in killing prisoners, let members kill them and eat them, like savages as they are.” But the citizens and soldiers of the armies of the United States are not less generous. They, too, would cry out, “Let members of Congress do this work, if it is to be done; but do not impose it upon a fellow-man.”

* * * * *

Mr. President, with pain I differ from valued friends whose friendship is among the treasures of my life. But I cannot help it. I cannot do otherwise. It is long since I first raised my voice in this Chamber against the “Barbarism of Slavery,” and I have never ceased to denounce it in season and out of season. But the Rebellion is nothing but that very barbarism armed for battle. Plainly it is our duty to overcome it, not to imitate it. Here I stand.

January 31st, on motion of Mr. Sumner, it was still further
amended so as to read, “in conformity with the laws _and usages
of war among civilized_ nations,”--Yeas 27, Nays 13. Mr. Sumner
then withdrew his substitute, remarking that he did so because
the original resolution had undergone such modification as
to be in substantial harmony with the resolutions introduced
by him. After other amendments, the original resolution was
passed by the Senate; but it was never acted on in the House of
Representatives.

* * * * *

This effort against Retaliation attracted attention and
sympathy at the time.

* * * * *

Hon. Israel Washburn, formerly a Representative in Congress
from Maine, being in Washington, wrote:--

“I shall not see you again before leaving the city, but
I will not go without thanking you from my heart’s heart
for the glorious resolutions upon Retaliation which you
offered in the Senate yesterday. Our country must live in
the atmosphere of those resolutions, or bear no life worth
having.”

John B. Kettell wrote from Boston:--

“I have read in the papers of this morning a telegraphic
report of the proceedings of the Senate on the resolution
in relation to retaliation upon Rebel prisoners for
cruel treatment to Union prisoners, and especially the
resolutions offered by you as a substitute for the
resolution before the Senate. Although not approving the
policy of the Administration, and therefore conscientiously
opposed to most of its measures, allow me to thank you
from the bottom of my heart for the manly tone and lofty
Christian sentiment which pervade the resolutions offered
and so ably defended by yourself.”

Hon. Daniel W. Alvord wrote from Greenfield, Massachusetts:--

“I wish also to thank you for your resolutions on
Retaliation. I am the more impelled to do this because I
think it probable that some of our friends in the State
will remonstrate with you for having offered them. I have
heard retaliation in kind vehemently advocated by good men
in Boston. But it seems to me that it would be an indelible
blot upon our fame, if, in a war with savages, we should
imitate their savage cruelties. I know that retaliation by
inflicting death for death may sometimes be necessary in
war. But the torture of prisoners nothing can justify. If
they may be tortured by hunger or cold, so they may, as
well, by fire, or by the rack.”