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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
The resolution was adopted without a division, and communicated to Mr. Adams in a despatch of Mr. Seward, under date of February 13, 1865.1
1 Diplomatic Correspondence, 1865 - 66, Part I. p. 164 : Papers relating to Foreign Affairs, 39th Cong. Ist Sess
RETALIATION, AND TREATMENT OF PRISON
ERS 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,
** Resolred by the Senate and House of Representatires of the l’nited 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 inAicted 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
The resolution was taken up and debated.
January 24th, Mr. Sumner moved the following resolutions as a substitute.
“ Resolred, That retaliation is harsh always, even in the simplest cases, and is pern
ssible 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.
" Resolred, 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.
" Resolred, 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 :
OW, Sir, I believe that the Senate will not ven
ture, 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.” 1
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 com
i Writings, ed. Sparks, Vol. III. pp. 59, 60.