Daily intelligencer. [volume] (Wheeling, Va. [W. Va.]) 1859-1865, 1861-12-31

ilaWsis that tltas lsll iRetent exposed to .dan-
ger may prevent the contraband persons OF
things from applyinS themselves or being
aPplied'to the hostil uses or purposes De-
signed. The law d SO very liberal 9 IN tnls
respect that when contraband IS Iouna ON
l.board a neutral ycssel. not only is the
contraband totfeited but the vessel, which
] lis the vehicle passage or transpor-
tation, being tainted also becomes contra
band, and is subjected to capture and CON
Efiscation.
Only the fifth question remains, namely:
i Did Capt. Wilkes ercisethe right of cap
turing The contra and in conformity with
the law of nations3
It is Just here that the difficulties of the
lease Begin What Is the manner which the
law of nations pfeseribes for disposing of
theicontrabaud whsndy you have found and
seized it on boardf1f tue neutral vessel ~
The answer would be easily found if the
4 question were, Whit you shall do with the
Iicontraband vessel on must take or send
/ her into convenient port, and subject her
lIltoa judicial proseeu there in admiralty,
which will try and decide the questions Of
belligerencyJ Neutrality, contraband and
A capture. SoJagaihy you will find the same
tanswer if the question wereS What is the
lhmanner of proceeding prescribed by the
law of nations in regaTd. to the contraband
i if 1.-THE property Or things of material or
lpecuniary valued h
4 But the qnestfa here concerns the mode
ofiproceedure in gard, not to the vessel
that warcarryih9 tie contraband, nor yet
jltoit the contrahand things which worked
) for the forfeiture Of Ethe vessel, but to the
? contraband persons
i. The books of law dumb. Yet the
] question istas important as it is difficult
First, the belIigerent .captor has right to
Ipreventthec ontraband officer, soldier, sail
or, minister, messenger or courier flom
4 proceeding IN his unlawful voyage, and
Preaching the scene of his injurious service.
l7But, on the other hand, the person may be
Il innocent-th is, he may not be contra
band. He, therefore, has right to q fair
trial of the accusation against him. The
I!neutral State that has taken him under its
Esfag, is bound to protect him if9he is not
lcontraband, and is therefore entitled to be
satisfied upon that important question:
The faith of that State is pledged to his
safety, if innocent, as its justice is pledged
\ to his surrender if he is really contraband,
Here are conflicting claims, involving per-
sonal liberty, life, honor aud duty. Here
are conflicting national claims, involving
welfare, safety, honor and empire. They
require o tribunal anda trial.. The captors
land the captured are equals; the neutral
and the belligerent State are equals.
While the law authorities were found si-
Il lent, 1T was suggested at au early day by
this Government that you should take the
captured persons into q convenient port
and institute judicial proceedings there to
.Iztry the controversy. But only courts of
admiralty have jurisdiction IN maratme
cases, and these courts have formulas to
Itryonly claims to contrabaud chattels, but
i none to try claims concerning contraband
Hlspersons. The courts can entertain no pro-
ceedings and render no judgment in favor
\ of or against the alleged contraband men,.
1t was replied all this is true; but you
can reach in these cOnrts d decision which
xviii have the moral weight of judicial
A one by circuitodsf proceeding. Convey
the suspected men, together with the suS-
5Ipected vessel, intoport, and try there the
4 -question whether the vessel is contraband.
/ You can prove it to- be so by proving the
inspected men to be eontraband, and tho
1 court must then determine the vessel to be
4 contraband. IF the men are not contra
4 band tile vessel will escape condemnation.
| Still there is no Judgment for or against
/ the captured per BUTT was assumed
/ that there would result from the determi-
nation of the court concerning the vessel o
Illegal certainty concerning the character of
lthesmen.
This course of proceeding seemed open
4 to many objections. 1t elevates the Incl
dental inferior private interest into the
proper place of the main paramount pub
lie one, and possibly it may make the for
tanes, the safety, or the existence of a
nation depend on the accidents of mere
4 1y personal and pecuniary litigation
l Moreover, when the judgment of the prize
court upon the lawfulness of the capture
of the vessel is rendered, it really concludes
/ nothing, and binds neither the belligerent
State nor the neutral upon the great ques-
ton of the disposition to be madelof the
captured contraband persons. That ques-
tion is still to be really determined, If ut
jail, by diplomatic arrangement or by war.
one may well express his surprise when
/ told that the law Of nations has furnished
no more reasonable, practical, and perfect
mode than this ofhetermining questions OF
such grave import between sovereign pow
l!;ers. The regret We may feel on the occa-
sion is nevertheless modified by the refec-4
I.tion that the difficulty is not altogether
Anomalous. Similar and equal Deficiencies
4 are found in every system of municipal law,
lcspecially7in the system which exists in the
i greater portions OF Great Britain and the
4 United Statesa The title to personal prop
4 ierty can hardly ever be resolved by a court
without resorting Ito the fiction that the
iIclaimant has lost and the possesor has
found it, and the title to real estate is dis
puted by real litiganEs under the names of
Imaginary persons. ttmust be confessed,
however, that while al aggrieyed nations
demand, and all impartial ones concede,
the need Of some form of judicial process
lin determining the characters of contra
| band persons, no othe1 form than the iIlog-
ical and circnitous one thus described ex-
lsts, nor has any otheryet been suggested.
Practically, therefore the choice is be.
tremedy whatever
If there homo judicial remedy, the re-
| suit is that the que4tton must be deter
mined by the captor himself, on the deck
lof the prize vessel. Very grave objections
Iarise against such Gourse. The captoris
armed, the neutral isInnarmed. The.cap-