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OUT the Senator from Kentucky tells us that the original defect in the notice by the President is of such a character that it cannot be cured by any subsequent ratification; and he proceeds to present what he will excuse me if I call imaginary cases, which I think could hardly occur, and are widely different from that under consideration. I express no opinion on the cases he does present, as, for instance, if the Presi
dent, during the recess of Congress, should undertake to involve the country in war. Let that case take care of itself, when it arises for judgment. The case before us is more simple, and is one with regard to which there are no private rights or interests. It is a domestic question between Congress and the President. He has given the notice. As regards the Government of Great Britain, that notice, I cannot doubt, is perfectly valid. That Government will never call it in question. For our own security, and that our precedents may conform to just principles, we now propose by formal Act of Congress to throw over this notice of the President the shield of Congressional sanction; and the question is, Can this be done? Can Congress, by an act of ratification, impart to the original notice of the President that power and character which, without subsequent ratification, it would not have? On that point I content myself with reading the authoritative words of the Supreme Court of the United States in the decisions known as the Prize Cases. There the Court express themselves as follows.
"Without admitting that such an act was necessary under the circumstances, it is plain, that, if the President had in any manner assumed powers which it was necessary
should have the authority or sanction of Congress, that, on the well-known principle of law, 'Omnis ratihabitio retrotrahitur et mandato æquiparatur,' this ratification has operated to perfectly cure the defect. In the case of Brown v. United States, (8 Cranch, 131, 132, 133,) Mr. Justice Story treats of this subject, and cites numerous authorities, to which we may refer, to prove this position, and concludes: 'I am perfectly satisfied that no subject can legally commit hostilities or capture property of an enemy, when, either expressly or constructively, the sovereign has prohibited it. But suppose he does, I would ask if the sovereign may not ratify his proceedings, and thus, by a retroactive operation, give validity to them?'"1
All now proposed is that Congress shall ratify the notice to the British Government, and by retroactive operation give validity to it.
Mr. President, if this concerned private rights,if, according to the language of the Senator from Kentucky, there were any question of meum and tuum, there might be force in his argument. But no private rights are involved, and there are no private individuals affected in any way by the proposed ratification of the notice already given. Therefore I put out of view that suggestion. It is, then, simply a question of power on the part of Congress, with no question of private rights.
I conclude that Congress has the power, and I put my conclusion on two distinct grounds. The first is the reason of the case, its common sense; for without this power I can imagine difficulties or embarrassments in the administration of government. I say the power
1 2 Black, R., 671.
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 this power.
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. 1st Sess
RETALIATION, AND TREATMENT OF PRISONERS OF WAR.
SPEECHES IN THE SENATE, ON A JOINT RESOLUTION ADVISING
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,
"Resolved by the Senate and House of Representatives of the United 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 inflicted 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
MR. SUMNER. What is it about?
MR. WADE. About retaliation.
MR. SUMNER I would not go on with that to-day.
MR. WADE. You would, if you were in prison. [Laughter.]
The resolution was taken up and debated.
January 24th, Mr. Sumner moved the following resolutions as a substitute.
"Resolved, That retaliation is harsh always, even in the simplest cases, and is permissible 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.
"Resolved, 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