Permit me to say, at the outset, that the declared object of the present bill is all lost in certain special features, which are nothing less than monstrous, and utterly unworthy of a generous Republic hoping to give an example to mankind. Surely, Sir, it is noble to reach out and protect the rights of the citizen at home and abroad; but no zeal in this behalf should betray us into conduct which cannot be regarded without a blush.
This bill proposes to confer upon the President prodigious powers, such as have never been lavished before in our history. They are without precedent. On this account alone they should be considered carefully; and they should not be granted, unless on good reason. If it be shown that they are not only without precedent, but that they are inconsistent with the requirements of modern civilization, that they are of evil example, and that they tend directly to war,—then, on this account, we should hesitate still more before we venture to grant them. Not lightly can a nation set itself against the requirements of civilization; not lightly can a nation do an act of evil example; not lightly can a nation take any step toward war. The whole business is solemn. Nothing graver could challenge the attention of the Senate.
Two powers are conferred upon the President: first, to suspend commercial relations with a foreign government, and, secondly, to arrest and detain in custody any subject of a foreign government found within the jurisdiction of the United States. The suspension of commercial relations, and the arrest of innocent foreigners, simply at the will of the President,—these are the two powers. It would be difficult to imagine greater.
We have had in our own history the instance of an embargo, when all our merchant ships were kept at home and forbidden to embark in foreign commerce. That measure was intended to save our commerce from insult and our sailors from impressment. This was done by Act of Congress. I am not aware of any instance, in our own history or in the history of any other country, where there has been a suspension of commercial relations with any foreign power, unless as an act of war. The moment war is declared, there is, from the fact of war, a suspension of commercial relations with the hostile power. Commerce with that power is impossible, and there can be no contract even between the citizens or subjects of the two powers. But this is war. It is now proposed to do this same thing and to call it peace. The proposition is new, absolutely new. Not an instance of history, not a phrase in the Law of Nations, sanctions it. I need not say how little congenial it is with the age in which we live. The present object of good men is to make war difficult, if not impossible. Here is a way to make war easy. To the President is given this alarming power. In Europe war proceeds from the sovereign: in England, from the Queen in Council; in France, from Louis Napoleon. This is according to the genius of monarchies. By the Constitution of our Republic it is Congress alone that can declare war. And yet by this bill One Man, in his discretion, may do little short of declaring war. He may hurl one of the bolts of war, and sever the commercial relations of two great powers. Consider well what must ensue. Suppose the bolt is hurled at England. All that various commerce on which so much depends, all that interchange of goods which contributes so infinitely to the wants of each, all that shipping and all those steamers traversing the ocean between the two, all the multitudinous threads of business by which the two peoples are woven together, warp and woof, as in a mighty loom,—all these must be severed.
The next power conferred on the President is like unto the first in its abnormal character. It is nothing less than authority, in his discretion, to make reprisals, by seizing innocent foreigners happening to be in the United States. The more this is considered, the more it must be regarded with distrust.
Reprisals belong to the incidents of war in the earlier ages, before civilization had tempered the rudeness of mankind. All reprisals are of doubtful character. Reprisals on persons are barbarous. I do not say, that, according to the received rights of war, some terrible occasion may not arise even for this barbarous agency; but I insist that it is frowned upon by all the best authorities even in our own country, that it is contrary to enlightened reason, and that it is utterly without any recent example. Admitting that such reprisals are not entirely discarded by writers on the Law of Nations, they are nevertheless condemned. By the rights of war, as once declared, the lives of prisoners taken on the field of battle were forfeit. Early history attests the frequency of this bloody sacrifice. Who now would order the execution of prisoners of war? The day has passed when any such outrage can be tolerated. But it is hardly less barbarous to seize innocent persons whom business or pleasure has brought within your peaceful jurisdiction, under the guaranty of the Public Faith.
I am unwilling to occupy time on a matter which is so clear in the light of modern civilization, and of that enlightened reason which is the handmaid to civilization. And yet the present effort will justify me in exposing the true character of reprisals, as seen in the light of history.
Reprisals were recognized by the Greeks, but disowned by the Romans. According to Bynkershoek, who is so much quoted on the Law of Nations, “there is no instance of such wickedness in the history of that magnanimous people; neither do their laws exhibit the least trace of it.”[239] This is strong language, and is in itself a condemnation of this whole agency. It is of the more weight, as the author is our austerest authority on questions of the Law of Nations, giving to the rights of war the strongest statement. According to him, reprisals are nothing less than “wickedness” (improbitas), and unworthy of a magnanimous people. During the Middle Ages, and afterwards, reprisals were in vogue; but they never found favor. They have been constantly reprobated. Even when formally sanctioned, they have been practically excluded by safeguards and conditions. In a treaty between Cromwell and the States-General there was a stipulation against reprisals, “unless the prince whose subject shall conceive himself to have been injured shall first lay his complaint before the sovereign whose subject is supposed to have committed the tortious act, and unless that sovereign shall not cause justice to be rendered to him within three months after his application.”[240] This stipulation was renewed under Charles the Second.[241] The same principle was declared by the Grand Pensionary, De Witt, who, in the name of the United Provinces, protested, “that reprisals cannot be granted, except in case of an open denial of justice,” and “that, even in case of a denial of justice, a sovereign cannot empower his subjects to make reprisals, until he has repeatedly demanded justice for them.”[242] A similar rule was also declared in the famous letter to the King of Prussia, in the case of the Silesian loan, written by Murray, afterward Lord Mansfield, and much praised by Montesquieu and by Vattel.[243] Here it is said: “The Law of Nations, founded upon justice, equity, convenience, and the reason of the thing, and confirmed by long usage, does not allow of reprisals, except in case of violent injuries, directed or supported by the State, and justice absolutely denied, in re minime dubia, by all the tribunals, and afterwards by the prince.”[244] This is clear and strong. I might quote authorities without end to the same point. I content myself with adding the words of General Halleck, who, after saying, in his admirable manual, that “reprisals bring us to the awful confines of actual war,” proceeds to lay down the rule, that reprisals, even on property, can be only “where justice has been plainly denied or most unreasonably delayed.”[245] This rule commends itself as proper and just. It is your duty to apply it on the present occasion. But, in the face of the authorities in our own country, judges, jurists, publicists, and commentators, in long array, according to whom our own claim of allegiance is coincident with that of England,—and then, again, in face of the well-known and much-heralded disposition of foreign powers, including England, to settle this whole question by treaty, is it not absurd to say that here is a case for reprisals of any kind?
In the early days reprisals were directed against persons as well as property. Even against property it was done with hesitation, only in cases free from all doubt, and after ample appeal to the sovereign for justice. Against persons it was done very rarely. Grotius, our greatest master, who brought the rules of International Law to the touchstone of reason, asserts that all reprisals are vindicated by custom rather than by Nature. His language is, that this rule “is not indeed authorized by Nature, but generally received by custom.”[246] Since then the tendency has been to a constant mitigation of this pretension, even as regards property. Without burdening this discussion with cases, which are numerous, I give a summary of Wheaton in these words: “It appears to be the modern rule of international usage, that property of the enemy found within the territory of the belligerent state, or debts due to his subjects by the Government or individuals, at the commencement of hostilities, are not liable to be seized and confiscated as prize of war.”[247] This rule, which is applicable to the condition of things on the breaking out of war, attests the care with which the modern Law of Nations watches the rights of individuals, and how it avoids making them suffer. Thus even debts are not liable to seizure. How much more should an innocent person be exempt from any such outrage!
It is when we consider the modern rule with regard to persons, instead of property, that we are impressed still more by its benignity. Here I quote, first a British authority, and then an American. Mr. Phillimore, the author of the very elaborate and candid treatise on the Law of Nations, so full of various learning, after admitting that reprisals, “strictly speaking, affect the persons as well as the goods,” proceeds to say, that, “in modern times, however, they have been chiefly confined to goods”; and then adds, in words worthy of consideration now, that “it is to be hoped that the reprisal of persons has fallen, with other unnecessary and unchristian severities, into desuetude; and certainly, to seize travellers, by way of reprisal, is a breach of the tacit faith pledged to them by the State, when they were allowed to enter her borders.”[248] The same enlightened conclusion is expressed by Dana, in his excellent notes to Wheaton, as follows: “The right of making reprisals is not limited to property, but extends to persons; still, the practice of modern times discountenances the arrest and detention of innocent persons strictly in the way of reprisal.”[249] Thus do British and American publicists concur in homage to a common civilization.