The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-07-28

s, the papers they slasd before your hoeor 90
secy giving the right Of hey show 20 breach Of
aerpauonal hw on the part OF the panchs her odcers
s.s dosu~sntsd, pursung legal VOYAGE, 10 seized
searched and condemned, and thu defendants Cher cap
Forgetting shss .or M. S. Ss:w war ~, wnn sos .
whose vessels and have been the actors In this Affair."
some into Court admit the oct, plead no jasaac.'
ssS : IT 70 the coast Of Afr.S, sss.n TO
ssiae and again to oOunscase, 70 some other place
prosscon, and 70 have your honor say by di-cnarge
wxhout bail Of these offenders TO merchants that there
safety for their vessels after they leave sight # the
my learned friend shall proceed 10 the argument of
she points raised BY this motion, and snail briefly
possible dispose Of them scarcely than ting
some OF them, for find to my surprise that the rgh. OF
search and seizure has been abandoned the counsel for
70 ns P Ss,a asn
xAaped-
POINTS SUBMITTED By JUDGE DEAN.
The complaint and adavits show clearly that this Is
N action In which BY law the defendants liable to
rest because Is for the recovery OF damages, on
q :c0n mn not asns ont Of the de-
The cause Of action being one in which the plaintiff is
snitied. matter Of right TO hold defend IN BAIL
ste court win not ths motion 60 INTO examination Of
he case on the merits This 10 only done where the aO
dan In which the right 10 bail depends the at
eyed Or to recover property which has been removed
Of the other where tue intent Ia material Here
me action ia for wrong, en- dtliso
an undertaking 70 psy their damages (ssc lss code
n: Rep. 266 and 2l9.)
grant the defendants the benefit Of preliminary trial.
No order Of should not be vacated or In any res
Defendants are non residents and coufessedy intend
- leave the Jurisdiction Of the "ut 30 hat judgment
w0uM be wholly iDedecsaal witho, the bail
me de endants without pecuuiary means to pay
The Judgment. Fol IL affidavit IT ,evaiue.)
8. AZ the seizure or the plaintiffs property was by d
recti0n Of o superior officer, the British government will
m
AschsTe plaintiff bold upon the BRUSH govern
snt except through the diatoy process Of dipomanc
{ The seizure wholly wrongful; British vessel
has right In time Of Iesoe TO search or seize an Ameri
The pretence that the Panchta was engaged in the
slave trade Is wholly false their sho siog M
No preparations for receiving ke ping slaves Positive
9th Of the Captain The waterca SKIS; these were for
palm oil Crew not American; there is No law that re
Large page 471act entitled for the protection
e American seamen Laws 1918, vol 2, Statutes at
Large, 500 and $40, secs. and l0)
But even II It doubtful TO the traffic In which
she Pancha was TO engage, the seizure vas wrongful
ments 70 that our flag s not abused by protesting
g The ip,en. to engage In the slave trade not piracy,
but VI actual teizipg &c Of slaves Laws OF lS20 ch
Ia vol 81 at Large, 500 and 50 No pretenoe
mat this was PHI aticai vessel
armed vessels the United States placed at the dts
po of the Psesident to be employed on the coast Of
Africa or elsewhere, 70 suppress the slave trade.
e By treaty OF 1S42, col 8, u STAT ~ Large, $40,
e-"Each shall prepare, eqiin and maintain In ser
vice the coast Of Africa, sufficient and adequate
squadron, go, to enforce SO arately and resPcc
lively the laws rights and obligations Of each OF the two
countries, for the suppression Of the slave trade O,p
Sau Fairfax Nores ~ and Lieutenant decide that
De Pre,iden is no, fulfilling bis treaty spalson, and
shAi they viii do what the United States ought TO do
seiEc and search American merchantmen nation only
en- exercise Of s right OF eminent domain so
upeak. Il affords protection 70 Its commerce, has
right know that that Is legitimate. Further
this the right cannot be maintained IL Is like the
search wsrrapt IN the house Of the citzsn.
H. The defendants odevaine and Ireland are not ex
~ ss @'s sSe
An order commit trespAss Afford no justification 10
The person by whom II was executed (aArmony vs.
a me defen dan in the above cause taken property
BY order Of Col Dopipbau. In tue Mexican war the
cause was tried in the United States Circuit Court in this
Gty and Judgment obtained for than $50 600 for
she plaintiffs Affirmed in the United States Supreme
Ccurt
the fact that defendants have moi converted the pro-
perty TO their Ia wholly immateria The question
so have defendants been benefited, but has plaintiff
This principle well understood In the English courts
q viii BY ref renee 10 the Gaze Of hortyn vs. Fa
~ cder Of Admiral Bososwen pulled down the houses Of
some settlers the coast Of Nova Soous who were suo
plying the sailors with spruous liquors. the health Of the
saissrs being Injured by frequentug them. the motive
Ss audsbe and the oct done for the public service
YEA WAS invasion II the rights OF private property,
sotsd ho order WAS held liable action, sud the set
UsTs damages against him TO the value Of the
" me o,her ground Of exemption Ia also equally una
valuable these defepdans viz that the plaintiff mss
ado application 70 the Cove nmens for redre.
l. me British government may refuse 70 rsny the asts
4 No one Is bound TO any one remedy.
We may be tod 10 estabieh our rights In me courts,
and hen thai the govern ment win recognise Their.
No uespasser turn the phainuf of until he has
s. our government has answered satisfactorily out
prefer even the laws dea's rather than place
ear sole reliance on the 'silen, craf' OF diplomacy
w. This action can maintained In the courts OF this
sae though planned Of Was done on the nga
and under color Of authority Wilson Vs. Mckenzie,
vi The amount OF bail should not be reduced because
mere evidence OF values and II the taking vas
wrcrsfaI alleged, The plaintiff snoud DO fully indemn
i. rhe oour, viii net, on this motion, Inquire tho
r,Ehe ~ between owner and chsf0ter. -
3 without this seizure no question could nave been
yased between owner and eharserer
have tbus, your Honor please, established ihree
peopositions;-
l. Thai the seizure OF this vessel 9 wrong, viola.
bon only Of nationality but also Of The right Of
property OF the painful
Thai for this wrong The defendants though acting In
obedience the orders Of superior officer, are liable In
that for that wrong the plaintiff hs, tho right 10 hold
hem 10 bail and retain their persons ~ hostages until
their government shall make rePerauon 70 the plaintiff Tor
Me icss Of bis property.
erssos binary sssumpuonor perhaps should say pre-
uumpt,onot the Se endsBts 10 making part OF Their
\ charge AfAn@i government tof NOV iushhhk
bcv treaty. .tpu aons In reference the maintenance q
squadron coast OF Africa for the suppression OF
he slave trade. On tain horseby says, and the osner
defendants by making his Instructions part Of their case
AZ ,-.u.-.....,x ....,..
unit rinrae fac ~ the total ab
renoe Of yihps ike smercN naval authority aud hA
tie Pas chss retentou may be prolonged "
indefinite period and further, oy the nrm Conviction nat
steps be taken, thee nothing whsievr 70 prevent
ssnconiug vessel openly, in the
eyes Of the .ord equipping ard rsdng With slaves IN sy
par the African rendering not only the uesy pc
Tween and the Ubtsd states dead e',er but
MAKING All oner slave rsse~ win Whatever nations just the
-sus ~ 80 much paper
Here We have the doctrine swerted by Briusn sloop
war and forcibly carried into actual practice, OF the
right Of Great Britain dictate 70 the manner In which
cur government shoud perform ~ treaty supasons add
n any where the Standard q the foreign odicer
pct attained he volunteers and ssscrw the rsnt 70 per-
vm he duties and discharge the oblEaons Of our gov