Delaware State journal and statesman., 1861-11-22
CAPTURE OF MASON AND sLIDELL.
The Law a., ~. s..a.

MS well us in other places at the North, lest the
capture Of the representative robels, Mason mud
Slidrll-lr, m on board British vessel, should
involve this country in difficulty with Great
Dsitain For the satisfaction Of those, ia cur
own State, who may entertain any fears Of this |
character We here give, us briefly as possible, |
such iaws and opinions upon the subject, as have
been published. They are all acknowledged
authorities among Jurists Of both America and
England and seem to be very conclusively In
favor of the legality of the noble act of the
g'llAnt Commander WILKES Of the San Jacinto.
First we introduce Wheatou's Elements of
International Law" We quote from the edition
Of 1856:
fho right of visitation and search o! neutral vessels at
a is belligerent right essential the exercise Of the
tshl OF capturing enemys property contrRband OF war;
aud vessels committing breach OF blockade.
The international law this subject Is ably summed
up Sir W. Scott, in the of tn. Maria, where the
exercise of the right attempted IA bs resisted by the
hterposton of a convoy Of Swedish ships of war In
delivering the Judgment Of the High Court Of Admiralty
Ia that memorable this learned civilian lays down
The following priueiplesbf law:
." That the sht OF visiting aud searching merchant
shs on the high whatever be the ships the earroe
TIE destinations, Is neontestable right Of the lawfully
commissioned cruisers Of oligorent nation IR,y be
the ships, the cgoes, and tho destinations what they
may, because, till they visited and searched 1t does
not appear what the ships the destinations are and II
Is or the purpose of tnins these points that the
necessity OF this right of visitation aud search exists
THIS right Is so clear ia principle that no man can deny
it who admits the right Of sritme eapturs because il
you are not at liberty to ascertain by sufficient Inquiry
whether there is property that be legally captured il
Ia impossible to eapure."-tpp 5S7-'s)
The fmuiulenty carrying the dispatches of he enc
my will subject the neutral vessel in which they are
Transported 10 capture ant coafscdlion The consequence
j such serri'e ave indefinite, infinitely beyOni he
eleet'ef any oaRruJdnd that can be Conveyed The
carrying oi two three cargoes military stores says
sir W. Scott, is necessarily assistance OF limited
nituei but in the transmission Of dispatches may be
conveyed tho eutire lan OF campaign, that may defeat
all the plans of the other lelligVrvnt In that quarter Of
| tho world. d
1t is impossible to limit letter to 10 small size as not
to he capable II producing the most important conae.
qnenees 1t ID service, therefore, which, In whatever
dgre 1t exists eau only bs considered In character
las En act Of the most hostile nature The offence Of
faudurniy carrying dispatches ia the service II the
enemy being then greater than that carrying contra.
band under any circumstances it becomes absolutely ne.
t#ary AZ we'll as just to resort SOME other penalty
than that inflicted In Of cOntrabAnd The rnnnsca.
Of eNioHs article which constitutes the penalty
n c'ntrth, whore the vessel and cargo do NOT belong
T." the stme pesoH would be ridiculous when applied to
DISPATCHES There would be no freight dependent on
their transportation aud therefore this penay could not
in the nature of things be applied The article in which
they arc carried must therefore ho coniiscated.'
" hut carrying the dispatches OF an amass, ,dor or
other public minister Of tho enemy RRsIDrSr ~ NRu.
TRIAL COUNTRY, is exception the reasoning on which
i above general rule is founded They are SAYS Sir
W. scott dispatches from persons who a g. In
hah Tie avorie object uf the protection Of the law Of
natons roidns in the noatr country for the purpose
OF preserving tho relations amty between nAt State
ana th'ir own Government. On this ground very ma
etii distinction arises with respect to the right Of fur
hiins the conveyance. The neutral country has right
10 rreer its relations with the enemy and YOU are moi
at Liberty conclude that any communicate between
Them can artake in my degree OF tho nature of hos
~ against you The limits assigned to the operations
war against ambassadors by writer's on public law are
that the belent may exercise his right OF war against
them, wherever the character of hostility exss he MAY
srtr Tne AMBASSADOR or Ills rSlMY on his rAssAuR; {;
but when he has arrived in the neutral country and
asoH On himself the functions Of his oce and has been
admitted in his representative character, he becomes
sort Of MIDDLE MAN entitled peculiar privileges as SGT
apart for tho Preservation Of tho relations Of amy aud
peace, il maintaining which all nations are in some do
gree interested. .'-(pp 56s -6G)
II has been sclemny adjudgod in the British prize
courts that being in tho transport service Of the
enemy ar in the conveyance Of military persons In his
emploment the carrying Of dispatches are acts Of
hostility which subject the property to eondseaton In
iheS ea'es the fact that the voyage neutral port
was na thought to change tn character Of the tranac
ln The principle these determinations was asserted
io be that The party must be deemed to place himself In
tho service Of the enemy state, assist in wardinp
tp. J7O)
OF similar purport is thA exposition of DR..
Robert phillimore, in his laie great work entitled
Commentaries on International Law. lie is
AdVocetc Of her Majesty in her office of Ad-
miraliy as Judge of the Cnque Ports" and uni
ycrsally approved. lie says;
Page aGs.-t -tConiraband) "It is, indeed, competent
to begeent to stop the Ambassador of his enemy on
his passage
Page lJJ As 10 carrying Of military persons In the
employ of beligeren being in any way engaged In
ms transport service, it has been most soemy decided by
the tribunals of international law, both in England aud
The United St lies OF North America that these are acts oil
hostility the part of the neutral which subject the
vehicle IN which the persons conveyed to conisca alton
A the hands Ut the bolligerentn
rage 17O.-" uneial Communications from an Official
ou the affairs Of begeren Government are such le
patches present hostile character on the carriers of
them The nisccvons consequence Of such service
cannot he estimated and extend far beyond the effect Of
any rontrahaud that be conveyed for It Is nani
fs; that by the carriage Of such dispatches the most m
potimt operations of hegerent army may be forwarded
o'ru'ted In general of contabnnd the quan.
it If The article carried may he mnteral Circumstance
hut the sua st despatch may serve 10 turn the fortunes
at war III favor Of n particular eigerent"
The penalty s cOniissatiOn VI the shin which r,nvav
tho de- patches aud Of the argon
Again; General Cass, in letter to Mr.. Dal.
las, dated February D. 1869, said;
There Is right visit lxcKrT as Lord stowsil s,id
FROM rHE ngtLaggEsr The iorcible visitation of
ves up'n the occan /. prohibited by the law Of nations
is TINE o9 rsAcH and this exemption from foreign jnrs
dNin Is now reqoguized by Grat Britain, ami, it s be-
irvel, by all other eommeretl powersr
Judge Marshall, too, in his opinion in the
case of the Nereiie, saidi
"Bynsercnts have full and perfect right to capture
'n 'nys rontrthanl Of Tong RxgRcsR or THAT
RANT 1iiE Riur sRARcm Is ESSENTIAL II is ,nenps
Justified hy tue call. 1t has Lcen fully ienominatel Il
sht glowing out Of and ancilary the greater right Of
ripture'-9 CfaHct ili.
And still further. Queen Vietoria's declara.
tion of war against Russia, in March, 1854, con. |
tanned this stntenee; " 1t il impossible for her
Majesty to iorego her right Of sezing articles
eon'raband of war, and Of prepnfiag neuirais
from bearing enemies dcpaiehes."
And still more recently, in the Queea's Pro
clamation Of neutrality, issued to her subjects
upon the breaking out Of the Southern rebellion
We find the following:
Aud we do hereby warn all our loving subjects, and |
all persons Whatsoever entitled our protection that II
any Of thcm shall presume contempt Of this our royal