mon 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." 1

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;

1 Commentaries on American Law, Vol. I. p. 94.

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." 1

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?"2

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.'

1 International Law, p. 296.

113

2 Le Droit des Gens, Liv. II. ch. 18, § 829.

8 Ibid., Liv. III. ch 8, § 155.

Why is it Because it is

That statement covers the whole case. unlawful in retaliation to adopt poison? 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," 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.'

1 General Orders, Adjutant General's Office, 1863, No. 100. 2 Instructions, Sec. I. art. 27.

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.” 1

1 Commentaries upon International Law, Vol. III. p. 149, Part IX. ch. 8, § 103.