, 1862-01-01

P1cntpQfiary to the Court Of St. Jasne5.
under a4etcnded commission from Jefferson
the insurrectionary party in the United States.
| and Il. j. Mcfarland was going with him in q
| like unreal character OF Secretary Of Legation
to The prentended mission. John Slidel1, in
Similar circumstances, was going to Paris as a
pretended Minister to the Emperor Of the
French, and George Eustis was the chosen Sec
retary Of Legation for that simulated mission.
The fact that these persons had assumed
6uch c!aIn ctcrs has been since avoWed by the
same jefferson Davis in pretended message
It was, as NC think, rightly presumed that
theSc Ministers bore pretended credentials and
instructions, and such papers are in the Law
knoTn as dispatches. We are informed by
onr Consul at Paris that these dispatches,
having escaped the search Of the Trent, were
actually conveyed and delivered to emissaries
OF the insurrection in England Although it
Is lot essential, yet it is proper to state, rs
do also upon information and belief, that the
%4 owner ana agent and al the officers Of the
had knowledge Of the assumed characters aud
/ purposes Of the persons before named when
| they embarked on that vessel.
Iour loFdship Will now perceive that the
case before US, instead Of presenting merely
dagrant act Of violence on the part Of Cantain
Wilkes, as might well be inferred from the
! incomplete statement Of it that went nm TO
| the British government, was undertaken as 4
I simple legal and customary bel1igerent pro-
ceeding BY Captain Wilkes 10 arrest and ean-
/ ture neutral vessel engaged in CARRYING con
| t:absnd Of war for the use and benefit Of the
I insurgents.
The question before US Is, whether this pro-
| ceedlng5 was authorized BY and conducted ac-
eoIdinE to the 1aw OF nations 1t involves the
| following inquiries:
| lst. Were the persons named and their sup
| posed dispatches contrlband Of WARP
f.. ID Might Captain Wilkes lawfully stop aud
| search the Trent for these contfaband persons
| and dispatches?
Sd. Did be exercise that right In lawful
| and proper manner?
4th. Having found the contraband persons
| on board and IN presumed possession Of the
eontFaband dispatches, had he a right to cap
| ture the persons?
| 5th. Did he exercise that right Of capture in
| the manner allowed aud recognized By the law
| Of nationss
Ifall these inquiries shall be resolved in the
affirmative, the British Government will have
| no claim for reparation.
| 1address myself to the first inquiry, namely,
we're the four persons named, and their sup
/ posed dispatches, contraband?
| Maritime Law SO generally deals, rs its pro-
fessors say, IL rem, that Is, with property, and
| so seldom with persons, that it seems strain
| ing Of the term contraband to apply it to them.
But persons, as well as properly, may become
| contraband, since the word means broadly,
"eontr2Ey to proclamation, prohibited, ille-
| t1Al% uuElHlu-
All writers and Judges pronounce naval or
military persons in the service Of the enemy
| contruband. Vattel says war allows us to cut
off from an enemy all his Resources, and to
hinder him from sending ministers to solicit
| assistance And Sir William Scott says YOU
may stop the ambassador Of your enemy on his
| passage. Dispatches arv not less clearly con-
| traband, end the bearers or couTiers who IN
dertakc to carry them fall under the same con
| demnation.
| ,.rt,t
tended ministers Of an usurping Power not
recognized rs legal bJ either the bellgerent or
] the neutral, could be held to be contraband,
But it would disappear on being subjected to
what is the true test Of al cases namely the
spirit of tile law. Sir William Scott, speakine
Of civil magistrates who were arrested and dc.
talned as contIaband, says:
| =" tt appears to me on principle to be but
reasonable that when it is OF sufficient i'm
"Tortanee to the enemy that such persons
'sshal1 be sent ont on the public service at the
| public expense, it should afford equal
"ground OF forfeiture against the vessel that
* may be let out for 4 purpose so Intimately
connected with tile hostile operations.'
thrust that have shown that tile four per-
Eons who were taken from the Trent by Capt.
I Of war.
The second inquiry is, whether Capt Wilkes
had right by the Law Of nations to detain and
search the Trent?
The Trent, though, she carried mails, was a
contract or mtrchlnt yesse-:a common car
| rier for hire. Maritime Inv knows only three
| claEscs otyessels. Tie Trent falls within the
I latter class. Whatever disputes have existed
| concerning right Of visitation or search il
time Of peace, none, it is supposed, has cx-
| listed i'll modern times about the right Of
belligercnts in time Of WAR to capture contra
band Ill neutral and even friendly merchant
vessels, and Of the right and visit ation and
search, i'll order to determine whether they
are neutral, ard aTe documcnted rs such ac-
| cording to the law Of nations.
| I assume, in tic present case, what AS I read
British authorities, is regarded By Grrat
I Britain herself Us true maritime Inv: that the
circumstance that the Trent was proceeding
I irc1sl neutral port to another neutral port
docs moi modify the right of the bclligerent
"a! tor
| The third question is, whether Capt Wilkes
exercised the right Of search III lawful and
| proper manner?
Iany doubt hing over off this point, as the case
| was presented in the statement OF it adopted
| by tic British Government, I think It must
| have already passed away beforc the modiie;a-
tons Of that statement which I have already
| submitted
| rrnc.n,l 10 the fourth inquiry, namely:
Having found the suspected contrsband of war
on board The Trent, had Capt. Wilkes right
to capture the same?
Such cuptare is the clici if not the only
recognized object Of the permitted visitation
and starch. Tic principle oftle Law is, that
the belligcrcnt exposed to danger may prevent
the contraband persons OF things from apply
ing themselves or being applied to the hostile
uses or purposes designed. The law is so very
liberal III this respect that when contrs.baul is
found on board a neutral vessel, not only is
the contr,band forfeited, hut the vessel,
which is tho vehicle Of its passage or trans
portation, being tainted, also becomes contrsl-
band, and is subject to capture and conGsca-
| tian.
Did Captain Wilkes exercise the right Of cap
| turing the contraband in conformity with tic
| Inv Of nations !?
II is just here that the difficulties Of tl.c
case begin. What is the manner whici, the
law Of nations 1,rcscEibes for Qispos;ur OF the
contraband when you have found and seized
it on board Of the neutral yessel9 The an
swcr would be easily found if the question
wcre what you shall do with the cont1:.band
| vessel. You must take or send hcrinto con-
ycnicnt port, and subject her to Il judicial
prosecution there in admiralty, which will
try and decide the questions OF bcllgcrcncv,
neutrality, consTnband and capture. So, again,
you would promptly tiud tic ealne answer il
tic question were, Wlmt is the manner Of
prot eydlng prescribed by the Law Of nations in
regard to lie contraband if il be property Of Of
| things OF material or pccunfary value?
But the question here concerns the mode of
procedure in regard, not to tho vessel that Was
carrying The cnltraband, nor yet to CONTRA
G~-A0 k1AHGo ht4S1 hoJHEu tllE Horticulture OF
| the vessel, but to contrlleand persons.
The books Of law are dunk Ytt the ones
| ton is as important as it is difficult First.
the bclGgcrcrs c:,ptor has Il right TO prevent
| the contrabaud officer, soldier, sailor, minis
ter, messenger, or courier from proceeding in
Lis unlawful voyage and reaching the dcs-
! tined scene Of his Injurious service. But, on
tic other hand, 1hc person captured may bc
innocent-that is, hc naay not be contraband.
Hr, therefore, has = right To Il fir trial Of the
accusation against him. The neutral State
that las taken Him under IFS flag, is bound to
protect him if lie is not eontfah1nd, aaii is
til rcfore entitled to be satisfied upon that ina-
ro1taut question. The fifth Of That State is
pltd.rd TO his sa1ity, if innocent, a= its Justice
| Is plcGged to his surrender if be is readily con
| lr:!hand, Here art conflicting elaitns invo1y-
ing personal libvrty, life, honor, and duty
Here arc conflicting national claims, involving
| wclfare, safety, honor, and cnlpige- They re-
qa1irc tribunal aid a trial Tile captor5 aud
the captured arc equals; tho neutral and the
! bc!HgtTent State arc equals
Willie the law authorities were found silent,
| it WAS suggested ii an carly day by this Gov
| cTnnleni tbat you should take the Captured
persons into convenient port and Institute
judicial proceedings there to try the contro-
| ycr5y But only courts Of admiralty have
jurisdiction in maritime cases, and these courts
have formulas to try only claims to eoatr.l-
baud chattt1s, bnt none to try cliu1s concern
iEg eontr.1hand persons. The courts enter
tain no proceedings aud reuder no Judgment