Ellsworth American. [volume] (Ellsworth, Me.) 1855-current, 1861-11-22
The Legality of the Capture.

With reference to the legality of the
course of Com Wilkes in boarding q Brit
ish steamer and taking away Messrs Mason
and Slidell and their budget of dispatches,
we have already quoted from Wheaton, than
whom there is no better authority on inter-
national law. Judge Kent, also, in speak
ing Of the right of search, says that "all
writer's, upon the law OF nations, and the
highest authorities, acknowledge the right
in time of war, as resting upon sound prin.
ciples of public jurisprudence, and upon the
institutes and practice Of all great maritime
powers. And if upon making the search,
the vessel be found employed in the contra
band trade, or in carrying the enemy's prop
erty, or troops or dispatches, she is liable to
be taken and brought in for adjudication be
fore a prize court" According to this, the
British captain, instead of raying about "pi-
ratcal Yankees" ought to have been thank
ful that he and his vessel were not also tax
these positions Of the American .jurists are
still more firmly asserted by the best British
authorities. For instance, DR.. Robert Fill
more, in bis late great work, entitled Com
mcntarics on International Law" is very
explicit. He is advocate of Her Majesty
in her Office of Admiralty. as Judge of the
Cirque Ports, universally approved. He
says
Page 36S, Sec. o (Copraband). alt is
indeed competent to a belIjgcrent to stop the
ambassador Of his enemy or his passage"
Page 500, Sec. 81 AS to carrying of
military persons in the employ Of belligrr
emit, or being in any way engaged in his
transport service, it has been most solemnly
dec .dcd by the tribunals of international
law, both in England and the United States
Of North America, that these are acts of
hostility on the part of the neutral, which
subject the vehicle in which the persons are
conveyed to confiseation at the hands Of the
bclligcrent.'
Page 80, Sec o73. "Oficial c1mmuni-
cations from an official on the affairs of
bell grrent 5vCrnment are such dispatches
rs impress a hostile character on the carriers
Of them. The mischievous consequences on
of such a service cannot be estimated, and
extend far beyond the effect Of any contra
band that can be conveyed for it is mani
fest that by the carriage OF such dispatches
the most important operations of a belliger-
ent army may be forwarded or INSTRUCTED.
In general cases Of contraband the quanti-
Is of the article carried may he a material
circumstance; but the smallest dispatch
may serve to turn the fortunes of war in ia
v0r OF a particular belligercnt.
See, 214. The penalty is conhscation Of
the ship which conveys the dispatches, and
Of the cargo"
As to the right Of search which forms
material part Of this question, it is to be re
membercd that all the diplomatic controver
sv we ave had with Great Britain on the
subject, has related to the assumed exercise
of the right in TN. Of Pcacc-its validity in
time OF war having been universally conce
dcd The New York CommcreiDl Adsertiscr
recalls the following historical precedent
which England has set for our example;
~ similar proc, edng on the part Of an
English vessel of war will probably be with
in tie recollection of some OF our readers
We refer to the boarding of the ship ilercu-
les, Of Salem, Mass Captain Edward West,
in a Sirdinian port, somc fifty years ago,
and forciby takin, from on board Eucien
B5napaote, then on his way 10 the United
States. The HERCULES put into port ON ac
count Of the sickness of Lucein Bonapartc,
and at his urgent request. An English man
of war was in port. got wind Of the passen
ger on board, and sent a boatswain with an
armed crrw, who took Luclen away by force
and carried him on board the man-ol-w war,
and he WIS taken prisoner to England. >
Boston Journal.