If we look at the reason of the modern rule which spares persons, we shall find it in two different considerations, each of controlling authority: first, that an innocent person cannot be seized in a foreign country without a violation of the Public Faith; and, secondly, that no private individual can be justly held responsible for the act of his Government. On the first head Vattel speaks as follows: “The sovereign who declares war can no more detain the subjects of the enemy who are found in his states at the time of the declaration than he can their effects. They have come into his dominions on the Public Faith. In permitting them to enter his territories and continue there he tacitly promised them full liberty and full security for their return.”[250] In the same sense Halleck says, “Travellers and passing guests are in general excepted from such liability.”[251] Here again Grotius speaks with the authority of a Christian lawgiver, saying that by the Law of Nations there can be no reprisals “on travellers or sojourners.”[252] The other reason was assigned by Mr. Webster, in his correspondence with the British Government in relation to the “Caroline.” The British Government having acknowledged the act of McLeod in burning this vessel as their act, Mr. Webster at once declared, that, after this avowal, the individuals engaged in it could not be held personally responsible, and he added words worthy of memory at this juncture: “The President presumes that it can hardly be necessary to say that the American people, not distrustful of their ability to redress public wrongs by public means, cannot desire the punishment of individuals, when the act complained of is declared to have been an act of the Government itself.”[253] Weighty words, by which our country is forever bound. The same principle is adopted by Halleck, in his text-book, when he says, “No individual is justly chargeable with the guilt of a personal crime for the act of the community of which he is a member.”[254] All these authorities furnish us the same lesson, and warn against the present proposition. Shall we at the same time violate the Public Faith and wreak a dishonorable vengeance on an innocent traveller or sojourner, making him the scapegoat of his country? Shall we do this outrage to the stranger within our gates?
Another argument may be found in the extent to which reprisal on persons has been discarded by modern precedents. It is denounced, not only by authority, but also by practice. I have already said that the proposition to suspend commercial relations is without an example in history. The other proposition is without example since the hateful act of the first Napoleon, condemned afterward by himself, when, at the breaking of the short-lived Peace of Amiens, he seized innocent Englishmen who happened to be in France, and detained them as prisoners, precisely as is now proposed under the present bill. Among the numerous victims of this tyrannical decree was Lord Elgin, the father of the late Sir Frederick Bruce, on his return from Constantinople, where he had been ambassador. There was also an ingenious scholar, of feeble health, but exquisite attainments, Joseph Forsyth, author of one of the best books ever written on Italy.[255] He, too, was seized. In the preface to his admirable work his family have recorded the outrage. Read it, if you would know the judgment that awaits such a transaction. There is also another record in the pages of the English historian who has pictured the events of that time.
“This declaration of war was immediately followed by an act as unnecessary as it was barbarous, and which contributed more, perhaps, than any other circumstance to produce that strong feeling of animosity against Napoleon which pervaded all classes of the English during the remainder of the contest. Two French vessels had been captured, under the English letters of marque, in the Bay of Audierne, and the First Consul made it a pretence for ordering the arrest of all the English then travelling in France between the ages of eighteen and sixty years. Under this savage decree, unprecedented in the annals of modern warfare, above ten thousand innocent individuals, who had repaired to France in pursuit of business, science, or amusement, on the faith of the Law of Nations, which never extended hostilities to persons in such circumstances, were at once thrown into prison, from whence great numbers of them were never liberated till the invasion of the Allies in 1814.”[256]
Napoleon himself, at a later day, when reason resumed its sway, condemned the act. In his conversations at St. Helena with Las Cases, he said: “The greater part of these English were wealthy or noble persons, who were travelling for their amusement. The more novel the act was, the more flagrant its injustice, the more it answered my purpose.”[257] Here, then, was an admission that the act was at once novel and unjust. The generals that surrounded him at the time most reluctantly enforced it. From the Memoirs of the Duchess D’Abrantès, we learn how poignantly her gallant husband, Junot, took it to heart and protested. He was unwilling to have anything to do with such an infamy. Recovering at last from the stupor caused by the order, the brave soldier said: “My General, you know not only my attachment to your person, but my absolute devotion to everything which concerns you. It is that devotion which induces me to hesitate at obeying your orders, before imploring you to take a few hours to reflect on the measure which you have now commanded.… Demand my blood; demand my life; I will surrender them without hesitation; but to ask a thing which must cover us with—— … I am sure, that, when you come to yourself, and are no longer fascinated by those around you, who compel you to violent measures, you will be of my opinion.”[258] Every word of this earnest expostulation may now be justly addressed to the Senate. You, too, Senators, should you unhappily yield to those who now insist upon violent measures, will regret the surrender. You will grieve that your country has been permitted through you to fall from the great example which it owes to mankind. Save your country; save yourselves.
Suppose the law is passed, and the authority conferred upon the President. Whom shall he seize? What innocent foreigner? What trustful traveller? What honored guest? It may be Mr. Dickens, or Mr. Trollope, or Rev. Newman Hall; or it may be some merchant here on business, guiltless of any wrong and under the constant safeguard of the Public Faith. Permit me to say, Sir, that, the moment you do this, you will cover the country with shame, of which the present bill will be the painful prelude. You will be guilty of a barbarism kindred to that of the Abyssinian king Theodorus. You will degrade the national name, and make it a byword of reproach. Sir, now is the time to arrest this dishonor. See to it by your votes that it is impossible forever.
Sir, it is hard to treat this pretension with composure. Argument, denunciation, and ridicule are insufficient. It must be trampled under foot, so as to become a hissing and a scorn. With all the granting of legislation, it is solemnly proposed that good men shall suffer for acts in which they had no part. Innocence is no excuse against the present pretension. The whole attempt is out of time; it is an anachronism, no better than the revival of the Prügel-knabe, who was kept at the German courts of former days to receive the stripes which the prince had merited for his misdeeds. Surely, if anybody is to suffer, let it be the offending Government, or those who represent it and share its responsibilities, instead of private persons, who in no way represent their Government, and may condemn it. Seize the ambassador or minister. You will then audaciously violate the Law of Nations. The absurdity of your act will be lost in its madness. In the seizure which is now proposed there will be absurdity to make the world shake with laughter, if for a moment it can cease to see the flagrant cruelty and meanness of your conduct.
A debate ensued, which ran into the next day, in the course of which Mr. Conness, of California, insisted that the striking out of the reprisals clause would impair the efficiency of the bill, and make it nothing but “air.” At the close of the debate, immediately before the vote on the amendment, Mr. Sumner summed up his objection as follows:—
My objection to the text of the bill which it is proposed to strike out is, that it is a proposal of unutterable barbarism, which, if adopted, would disgrace this country.
The question, being taken by yeas and nays, resulted,—Yeas 30, Nays 7; as follows:—
Yeas,—Messrs. Anthony, Buckalew, Cattell, Chandler, Cole, Conkling, Corbett, Cragin, Davis, Fessenden, Harlan, Harris, Henderson, Howe, Kellogg, McDonald, Morgan, Morrill of Vermont, Osborn, Patterson of New Hampshire, Patterson of Tennessee, Pomeroy, Rice, Sumner, Trumbull, Van Winkle, Vickers, Willey, Williams, and Wilson,—30.