SPEECH IN THE SENATE, ON THE BILL CONCERNING THE RIGHTS OF AMERICAN
CITIZENS, JULY 18, 1868.
The Senate had under consideration the Bill concerning the
Rights of American Citizens in Foreign States, which had
already passed the House of Representatives. As it came from
the House it contained the following section:--
“SEC. 3. _And be it further enacted_, That, whenever
it shall be duly made known to the President that any
citizen of the United States has been arrested and is
detained by any foreign Government, in contravention of
the intent and purposes of this Act, upon the allegation
that naturalization in the United States does not operate
to dissolve his allegiance to his native sovereign, or
if any citizen shall have been arrested and detained,
whose release upon demand shall have been unreasonably
delayed or refused, _the President shall be, and hereby
is, empowered to suspend, in part or wholly, commercial
relations with the said Government, or, in case no other
remedy is available, to order the arrest and to detain in
custody any subject or citizen of such foreign Government
who may be found within the jurisdiction of the United
States, and who has not declared his intention to become a
citizen of the United States, except ambassadors and other
public ministers and their domestics and domestic servants;
and the President shall without delay give information to
Congress of any proceedings under this Act_.”
Mr. Sumner reported an amendment, to strike out the words in
Italic authorizing the suspension of commercial relations and
reprisals on persons, and substitute therefor these words:--
“It shall be the duty of the President forthwith to report
to Congress all the circumstances of any such arrest and
detention, and any proceedings for the release of the
citizen so arrested and detained, that Congress may take
prompt action to secure to every citizen of the United
States his just rights.”
On this amendment Mr. Sumner spoke as follows.
MR. PRESIDENT,--Before entering upon this discussion, I wish to read a
brief telegram, which came by the cable last evening, as follows:--
“LONDON, _July 17_.--In the House, last evening, Stanley, the
Secretary of Foreign Affairs, made an important statement in
answer to a question asking for information. In reply, he said
he had already sent to the United States Government a note on
the matter of Naturalization, the substance of which was, that
the British ministry was ready to accept the American views of
the question. He therefore thought a misunderstanding between
the two nations impossible.”
Add to this important information the well-known fact, that the United
States have already ratified treaties with North Germany and Bavaria,
and that we are engaged in negotiating treaties with other powers, for
the settlement of this vexed question, and we may surely approach this
discussion without any anxiety, except for the honor of our country.
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.
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.
NAYS,--Messrs. Conness, Nye, Sprague, Stewart, Thayer, Tipton,
and Whyte,--7.
For the section thus amended, Mr. Williams, of Oregon, moved a
substitute; whereupon the debate was resumed, and Mr. Sumner
spoke again.
The amendment of the Senator, and the remarks that he has made,
it seems to me, go on a mistaken hypothesis. They accept the idea
that there has been some failure on the part of our Government with
reference to citizens abroad.
MR. WILSON [of Massachusetts]. Is not that true?
MR. SUMNER. I think it is not true; and if time would allow now, I
could go into the evidence and show that it is not true. I have the
documents here. But we are entering upon this question to-night with
an understanding, almost a compact, that there shall be no debate. I
do not wish to break that compact. But here are documents lying on my
table containing all the facts of record with regard to every American
citizen who has been taken into custody abroad. Examine that record,
and you will see how strenuous and steadfast our Government has been.
Permit me to say that the argument of the Senator from Oregon [MR.
WILLIAMS] proceeds on a misunderstanding of the facts. There is no
occasion now for any such legislative prompting to the Government of
the United States.
MR. WILLIAMS. I should like to ask the Senator a question.
MR. SUMNER. Certainly.
MR. WILLIAMS. Why is it, if everything has been so smooth and
so placid upon this subject, that both of the political parties
of this country have seen proper to put in their platforms
resolutions in reference to the rights of American citizens
abroad?
MR. SUMNER. I have not said that things were placid or smooth; but I
have said that our Government has been strenuous and steadfast in the
maintenance of the rights of American citizens, whether native-born
or naturalized; and the record will show the truth of what I say.
Where has there been a failure? Has it been in Germany? Read the
correspondence, running now over several years, between the United
States and the different powers of Germany, and see the fidelity with
which the rights of our naturalized citizens have been maintained there.
I wish to be as brief as possible. If the Senator will take the trouble
to read the documents on the table, he will see that among all the
numerous applications made by the United States to the Government of
Prussia, the leading power of Germany, there is hardly an instance
where this power did not meet us kindly and generously. I speak
according to the record. I have been over every one of these cases; and
I must say, as I read them I felt a new gratification in the power of
my country, which made itself felt for the protection of its citizens
in those distant places, and also a new sense of the comity of nations.
A letter went forth from one of our ministers, and though at that time
this difficult question of expatriation was still unsettled, yet, out
of regard to our country, or out of regard, it might be, sometimes, to
the personal character of our minister, the claim was abandoned. You
can hardly find an instance----
MR. CONNESS rose.
MR. SUMNER. Will the Senator let me finish my sentence?
MR. CONNESS. Certainly.
MR. SUMNER. You can hardly find an instance in that voluminous
correspondence where the claim has been persisted in on the part of
the Prussian Government. The abstract question was left unsettled; but
the individual was left free, without claim of allegiance or military
service. All this was anterior to the treaty, by which this whole
question is happily settled forever.
But it is not my purpose to discuss the conduct of foreign Governments.
My simple aim is to show the conduct of our own. That was the point
with which I began. I said that it needed no quickening such as the
Senator from Oregon proposes to apply. There is no evidence that our
Government has not been persistent and earnest for the protection of
its citizens abroad, whether native-born or naturalized, and I alluded
to Prussia only by way of illustration. Pass that by. We have then the
greater and more complex case of England. But I would rather not enter
upon this. Here are the documents on my table, the passages all marked,
which would illustrate the conduct of the British Government and the
British tribunals toward every one of these persons whose names have
been brought in question. I do not wish to go into this question. I
should be misunderstood; and it is not necessary. I am speaking now of
the conduct of our own Government, rather than of the conduct of any
other Government. Mark, Sir, my reply to the Senator from Oregon was,
that our Government did not need any additional power or any additional
impulse to activity in this behalf. Already it has the power to do
everything permitted by the Law of Nations, and it ought not to do
anything else.
Mr. Conness followed in support of the bill, and to a
correction from Mr. Sumner retorted:--
“The honorable Senator would be very quick to demand
the interference of all the powers of this Government
in behalf of an arrested American citizen, if he were
black. But, Sir, those arrested happen to be of another
color,--not a color which appeals to his sympathies, but
a color that allows him to belittle their arrest and
incarceration,--that enables him to say here in the Senate
that our Government have done everything that they could
do, all that was necessary. It is true in his judgment,
I have no doubt; for, if you only write letters, if you
only publish and utter productions of the brain, if you
only present views, the honorable Senator is satisfied.
Those are his means, except when the progress through the
thoroughfares of the city or the country of an American
citizen of African descent is involved. Then views are at
once thrown to the dogs, and he demands the interference of
the Government, the police authority; if it be a railroad
company, repeal their acts of incorporation! No matter how
much capital stands in the way,--it may be $10,000,000 that
is affected,--repeal their acts at once! How dare they
impiously set up their tyranny over one human being who is
stamped with American citizenship?… The law as proposed to
be passed under the direction of the honorable Chairman of
the Committee on Foreign Relations amounts to nothing.…
I hope, without detaining the Senate any longer, that we
shall not add to our too great delay upon these questions
the offence and insult that the passage of this Act would
be as proposed by the Committee.[259]