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.