Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1861-11-29
DAILY appeal,
CAPTURE OF MASON AND sLEDELL

The reader will find in another part OF To-Day ;
Tutsiiigcncer the announcement OF the capture OF
Nessrs. Mason and SidelI, ENJOYS Of the So Con
tolerate States" to the governments OF Great
britain and France. Found by Capt Wilkes, OF
fbe United States steamer San Jacinto, on board
the British mail steamer Trent, which, on her
massage from Havana to England was over
hauled in the channel Of the Bahamas, the two
DISTINGUISHED commissioners were taken IN Gus
iodv by that officer. and, having been transfer
red to his vessel, were brought, in the first place,
20 Fortress Monroe, and thence transported 10
New York.
Wilkes acted with or without the orders Of the
National government, it remains to inquire INTO
the grounds by which this proceeding is justified
in the light Of International law for, however
eypedient may seem the success gained by the
arrest and detention of these Confederate repre-
sentatives, whether regarded in point OF PoAt-
cal OF military strategy, It would be dearly pun
chased at the cost of a single principle OF that
public morality whose rules govern. or should
govern. the conduct of civilized and Christian
States In their mutual intercourse in peace and
IN war.
Those, therefore, who are not already familiar
with the principles involved in the proceeding Of
Cant Wilkes, viii learn with interest that It is
fully justified by the rules Of international law,
as those rules have been eIpOunded by the most
ilustriOus British iurists and compiled by the
usast approved writers on the laws Of nations.
So tar as having transcribed the powers with,
which he was clothed by that code, Capt. Wilkes
did not exhaust the fall measure OF his authority,
for he not only had an undOubted right to arrest
these ambassadors A" of the Confederate gov
ment on their passage to Europe, but might have
Justly captured the vessel on which they were
found, and brought her into port to be con-
Iemned as lawful prize.
The points of public law involved in the case,
and on which 1t turns, are as follows:
l.. The right Of visiting and searching mer-
chant ships on the high seas, whatever be
the ships, their caTgOes, or their destinations, IS
an incontestible right of the lawfully commits
a purely beligerent right, essential to the cap
ture Of enemy's property and the discovery OF
cOntraband Of war on board Of neutral vessels,
it is, from its very nature and definition, incom-
petent 10 a state of peace, but aecrues to each
beIEgerent on the outbreak Of war.
,. To engage in the transportation Of military
persons, bearers Of dispatches, and dispatches
themselves, Is of the same nature with the carry
ing Of contrabsnd goods, and a vessel so engaged
in the service of one belligerent is subject to
capture and cOnfscatOn by the other.
3. A beIigereut may lawfully arrest an en-
bassador of the adverse belligerent, if found at
sea in a neutral vessel on his passage, and there
fore before he has asrrived in the neutral coun-
Try. OF has assumed the functions of his Office
near the to (which he is accredited.
But, when be has arrived and been admitted in
his official relation, he is protected by his repre-
sentative and international character.
4. The fact that the voyage is. made to a neu-
traI port does not change the legal character OF
the transaction, where contraband Of warm
Guiding of course military persons, dispatches,
and their bearers-is found on a neutral vessel.
These principles are believed to cover com
pletelv the case presented by the capture Of
Messrs. Mason and Slidell; and that the points
have been correctly stated VIII be seen by the
following citations from Wheaton's Elements
Of International Law" We quote from the
edition Of lS55:
"Tha right Of visitation and search of neutral
vessels at sea is a beligerent right; essential to
the exercise Of the right of capturing enemy's
property ,Contrabsnd Of wal, and vessels com
hitting a breach Of blockade.
The international law on this subject is ably
summed up by Sir w. Scott, in the case of the
Maria. where the exercise Of the right was at
tempted to be resisted 10y the ~interpositiOn Of a
convoyo of Swedish ships Of war. In delivering
the Judgment Of the High Court of Admiralty in
that memorable case this learned civilian lays
down the following principles Of law:
81. That the right Of visiting and searching
merchant ships on the high seas, whatever be
the ships, the cargoes, the destinations, is an in
contestible right of tue lawfully commissioned
cruisers of a ~belfgerent nation. I say, be the
ships. the cargoes, and the destinations what
they may, because, till they are visited and
searched, 1t does not appear what the ships or
the destinations are and II is for the purpose of
ascertam.ng these points that the necessity Of
this right Of visitation and search exists. This
right Is so clear in principle that no man can
deny It who admits the right Of maritime cap
ture because if you are not at liberty 10 ascer-
tain by sufficient inquiry whether there is prop
erty that can be legally captured, it's impossible
to captUre.-(pp. 5S7-'5.)
"The fraudulenfy carrying the dispatches Of
the enemy will subject the neutral vessel in
which they are transported 70 capture and con-
fscation. The consequences Of such q service
are indefinite, infinitely beyond the effect Of any
contraband that can be conveyed. The carry
ing Of two OF three cargOes of military stores,
says Sir W Scott, is necessarily an assistance
of a limited nature but in the transmission of
dispatches may De conveyed the entire plan Of a
campaign, that may defeat all the plans of the
other belligereut in that part Of the world. It is
true, as It has been said, that one bHH might take
off a Charles XLIth, and might produce the most
disastrous effects in a campaign; but that is a
consequence 50 remote and accidental that, IN
the contemplation of human events, it is d sort
Of evanesceut quantity of which no account Is
taken and the practice has been, accordingly,
that it is in considerable quantities only that the
offense Of contrabaUd is contemplated.
The case Of dispatches is very different it Is
impossible TO limit a letter 10 so small a size as
not TO be capable Of producing the most i'm
portant consequences. 1t is a service, therefore,
which, in whatever degree it exists, can only be
considered in one character-as an act Of the
most hostile nature. The ofense Of so faudu-
lentIy carrying dispatches in the service OF the
enemy being then greater than that Of carrying
c0ntTaband under any circumstances It becomes
absolutely necessary as well as Just to resort to
some other penalty than that inflicted in cases Of
contraband. The confscation of the noxious
article which constitutes the penalty in contra
band, where the vessel and cargo do not belong
10 the same person, would be ridiculous when
applied to dispatches. There would be no freight
dependent on their transportation, and therefore
this penalty could not, IN the nature Of things,
be applied. The vehicle IN which they are car
RED must therefore be confscated.
BY carrying the dispatches of an ambassador
or other public minister Of the enemy, resident
in a neutral country, is an exception TO the rea-
soning on which the above general rule is
founded. They are says Sir W. Scott, dis
patches from persons who are, in a peculiar
manner, the favorite object Of The protection of
the law Of nations, residing in the neutral
country, for the purpose of preserving the rela-
lions OF amity between that State and their own
government. On this ground a very material
distinction arises with respect TO the right Of fur
nisbing the conveyance. The neutral country
has a right to preserve its relations with
the enemy, and you are not at lib
erty 10 conclude that any communica-
ton between them can parake, in any
degree, Of the nature Of hostility against you.
The limits assigned to the operations Of war
against ambassadors by writers on public law
are, that the belligerent may exercise his right Of
war against them, wherever the character of
hostility exists he may stop the ambassador Of
his enemy on his passage; but when he has az
rived in the neutral country, and taken on him
self the functions Of his Office, and has been adj
mitted in bis representative character, he be-
comes a sort Of middle man, entitled TO peculiar
privileges, as set apart for the preservation Of the
relations OF smity and peace, in maintaining
which all nations are ins0me degree interested
opp. 565-G6.)
1t has been solemny adiudgedi in the British
prize courts that being engaged in the transport
service Of the enemy, or in the conveyance Of
military persons in his employment, OF the car
Tying Of dispatches, are acts Of hostility which
subject the property 10 confscation. In these
cases the fact that the voyage was to a neutral
port was not thought 70 change the character Of
The transaction. The principle of these determi-
nations was asserted 10 be- that the Marty uyef