Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1862-01-08

a. T-on, Ne showed his instructions from Capt Nhk'
20 search for the four prisoners named ~ a respec ~ an
courfeous though decided manner, and he asked the car
tain Of the Trent 10 show the passenger llsI Mnlch wa
refused The lieutenant, as we are informed CID not en-
plov absolute force in transferring the passengers, out =
used Just so much as was necessary 70 SATISFY me pa
ties concerned that refusal or resistance would be uni
yaIing. IT.
was not at any time or in any way required to go o
Tbese notifications Of the case as presented by Con
mander Williams are based upon our official reports
have now TO remind your lOrdship of some tact
which doubtlessly were omitted by Earl Russell, wit
the very proper and becoming motive Of allowing then
20 be brought into the case on the part Of the Unite
States in the way most satisfactory TO this government
! These facts are-that at the time the transaction oc
CURED, an instruction was existing in the United States
which this government was engaged in suppressing By
the employment OF land snd naval forces that in re
gard 10 this domestic strife. the United States considered
Great Britain as a friendly power, while she had assumed
for herself the attitude of a neutral, and that spain wa
considered in the same light and had assumed the SAME
attitude as Great Britai1.
II has been settled by correspondence that the United
States and Great Britain mutually recognized as apph
cable to this local strife these two articles Of the deeiara
ton made by the Congress Of Paris in ls5b, viz that the
neutral or friendly flag should cover enemy's goods moi
contraband OF war. and that neutral goods not contrabano
Of war are not liable to capture under an enemy's flag
These exceptions Of eOntraband from favor were a mega
tive acceptance Of the parties by the rule hitherto every
where recognized as a part Of the law Of nations, thai
whatever is contraband is liable TO capture and conhsca'
ton in all eases
James N. Mason and E. J. Macfarlane are citizens Of
the United States and residents Of Virginia John Slidel
and George Eusds are citizens Of the United States, and
residents Of louisiana Ii was well known in Havana
when these parties embarked in the Trent, that james NJ
NJ uson wa proceeding 20 England in the affected charac-
ter Of a minister p enipotentiary to the court Of st james
under a pretended commission from Jefferson Davis, who
had assumed to be President Of the insuTrectionary party
In the United States and T. J. Maclarlane was going
with him in a like uuraa' character Of secretary Of lega-
ton 70 the pretended mission. John SLdel, IN similar
circumstance, was going to Paris as n pretended minister
TO the Emperor Of the French, and George Eustis was the
chosen secretary Of legation for that simulate 7 mission
The fact that these persons had assumed such characters
has been ayowed by the same Jefferson Davis In a pre-
tended message 20 "a unlawful and insurreetionary Con
grefs It was, as we think, rightly presumed, that these
ministers bore pretended credentials and Instructions, and
such papers are in the law known as dispatches We
are informed By our consul at PirIs, that these dispatches
having escaped the search of the Trent, were actually
conveyed and delivered 20 enissariea Of the insurrecti0a
in England. Although it is not essential, y,tit Is proper
TO state, as DO upon Information and belief that the
owner and agent aud al the officers Of the Trent nciud'
ing the Commander Williams, had knowledge Of the as
sumed characters and purposes Of the persons named
when they embarked on that vessel
Your lordshfp VIII now perceive that the case before
Is, instead Of presenting q merely fragrant act Of violence
on the part Of Capt Wilkes, as might well be inferred
from the incomplete statement Of it that went up TO the
British government, was undertaken as a simple, legal
and beuigerent proceeding Of Capt Wilkes to arrest and
capture neutral vessel engaged in carrying oontraband
Of war, for the use and benefit Of the insurgents.
The question bef re Us is, whether this proceeding was
authorized by and conducted according to the law OF
nations Il involves the following inquiries:
I. Were the persons named and their supposed dis
patches coutTaband Of war
. Might Capt wilkes lawfully stop and search the
Trent for these eontraband persons and dispatchesf
3 Night be exercise that right in a lawful and proper
mannerf
4 Having found the conraband persons on bOagd and
in presumed possession Of the eontraband dispatches had
he a right % capture the PersonsS
S. Did he exercise the right II capture in the manner
allowed md recognized by the law Of naiionsf
II all these inquiries shall be resolved in the afirna-
tive, the British government viii haYen no lain for repara-
ton.
the four persons mentioned ana their SUPPOSE dispatches
oOntrsbandi
Maritime law so generally deals, as It's professors say,
IN reH-that is, with property, and 30 seldom with per
sons-thaf II seems a straining of the tenn contraband to
apply it to them. But persons as wen as property may
become e1prabRnd, since the word means broadly,
" contrary 10 proclamation, prohibited Illegal, unlaw-
ful
An writers and judges pronounce naval and military
persons, in the service Of the enemy, eontraband. Nattel
says, war allows as to cut OF from an enemy all his re
sources. and 20 hinder him from sending ministers TO solicit
assistance And Sir William Scott says you may stop
the ambassador Of your enemy on his passage. Dis
patches are not less clearly eoBtrabsnd, and the bearers
or courier who undertake TO carry them, ali under the
same condemnation.
A subhety might be raised whether pretended minis
tiers H a usnrping power not recognized as legal by eth
er the b~eligerent or the neutral, e0uld be held 10 be con
traband But it wOald disappear on being subjected 70
what Is the tme test in al cases-namely, the spirit Of
the law. Sir VIM Scott, speaking Of civil magistrates
who were arrested and detained IS eoutrsband, says
1t appears % me, on principle, 20 be but reasonable
that when il It's Of sufficient Importance 70 The enemy that
sueh persons shall be sent ont ON the public service, ~
the public expense, & shall afford an equal ground Of Tor
fixture against the vessel that may be let ont for a
purpose 50 Intimately connected with the hostile opera
Trust thai I have shown that The four persons who
were taken from the Trent by Capt Wilkes, and their
-dispEeheE urere eonustalat ~ aaE
The second inquiry Is, whether Capt. wilkes had a
right, by the law Of Hations, TO detain aud search the
The Trent, though she carries the mails. was a contract
or merchant Yessel-aeommo carrier for hire. Maritime
law knows only thrrs classes Of vessels-vessels Of war.
reveuue vessels and merch snt Fesses. The Trent falls
with the latter el-s. Whatever disputes have existed
concerning the right Of visitation or search in time Of
peare, none, ii Is supposed, has existed in modern times
aboui the riRhtO Of 2 beliigerenf in time Of wal. 10 capture
eantrabaHd in neutral AMI even friendly merchant YES
sells and Of right Of visitation and Search, In order 70 de
teT1Hine whether they are neutral and are doeumented a.
such according 10 the law Of natio s.
Iassume in the present ease what, as Tread British an.
tiOrdeE b regarded by Great Britain herself, as true mar.
thine Jaw, that the circumstance that the Trent was pro
eeedinF from a neu. raj port 10 another neutral port, does
not modify the right Of the bel igerent cantor.
The third question Is, whether Capt. Nilaes exerci ed
the right Of search in asawful and proper mannerg
If any doubt hung over tn s point As the case was I re
scented IN the statement Of e adopted by the British gov
eminent ] think il must have already passed away be
fore the notifications Of that statement which l have
air adv submitted.
Iproeeet to the fourth inquiry, namely; having found
the expected contraband on board of the Trent, had
| Capt wilkes a right 10 capture the sameg
| Such a capture il the chief, if not the only recognized
object Of the permitted visitation and earch- The prin-
eiple Of the law is, that bellgerents exposed to danger
may prevent the cOntraband person or things from ap-
plying themselves or being applied 10 the hostile uses OF
purposes Designed, The law Il 20 liberal in this respect
that when eontraband il found on board a neutral vessel,
not only is the contTaband forfeited, but the vessel, which
is the vehicle Of its passage or transportation being
tain ed, also becomes cOutraband, aud is subjected 70
capture and eonfscaton.
Only the fnh question remains. namely; Dd Capt
Wfkes exercise ths right Of capturing the contrabandi in
conformity with the law Of natisasf
i is Just here that the difficulty OF the cas- begins
--h,f 4 she ann uvhiqh the laur of naffOue urezrF-bee
for disposing OF the eontraband, when you bave found
sud seized Il on board o. c neutral vesself
Tbs answer would be easily found, if the question
were whist yGu should do with the eontraband vessel;
You must take or send her into a convenient port ard
subject her to a Judicial prosecution there in admiralty
VIII CT will try and decide the questions OF bellgereneyi
neutrality. coutraband and capture. So again, you
wodld promptly find the same answer if the question
re What is the manner Of proceeding prescribed by
the law Of nations in regard to the eontraband, L 1t be
property or things OF a material q pscgniary value
But the on. stioD here concerns the mode OF procedure
il regard, not to the vessel that was carrying the contra
band, nor vet the contraband things which worked the
forfeiture u the vessel bat to contraband persons
The books Of Law are dumb, yet the question is a
important as it is difficult First the ~bellgeTent eaptor
has a right 70 prevent the conTaband officer soldier
sailor minister, messenger or courier from processing IN
his unlawful voyage and reaching the destined scene OF
his injurious service. But on the other head ihe peTsons
captured may be iunocent-this - nc may not De con
traband. He therefore has a right 70 a fair trial Of the
accusation agalua hin. Tue neutral State that has
taken him under it, flag Il bound 10 protect him If he il
N. 49, -
upaa thar important question. The faith Of the State il
pledged 70 biz safefy II innocent, a. il justice Is pledged
to he surrender II be Is TeaHy eoEtrsbaDd. Here ae con.
dieting claims iuvoiFing persgnai Ebrty, life, honor AID
duy. Here are conflicting national claims, Involving
welfare, safety, honor and empire. They require q tn
bunal and aniaL TIE captured ard the eaptors are
equals; The neut1a' and b~eiigerept Stg'es are equals.
While The law authorities were found Silent il was sug
gsstsd al an early day by this government that yoH shoull
take the egpinred persons into a convenient port and
institute Judicial Rrseeedings there 20 try the controversy
Bnt only courts Of admiralty haye Jurisdiction IN mari
time cases, and these courts heve formulas 70 try only
claims 20 eonfraband chHifeis, but none to ~ claims
concerning eonstraband persons The courts can enter
tain no proceeding and render no Judgments in favor O
or against the alleged eontraband men.
II was replied, 81 this is true; but you n reach in
those courts q decision Nidel I'll lave the moral weight
ola judicial one by a eircuitous proceeding. Convey the
suspected ulsu, together with the suspected weasel int
poTt, and Fy the qaesioa whether the vessel is contra
band. You can prove It % be 80 Of proving the suspected
men 70 be ceHtFaband. II the men arc NOS efrtraband
the men will escape CONDEMNATION. Still there Is no judg
mcnt for OF against ths captured persons. But II wa
answered, that there would result ff0m the qefermlnAtion
Of the court, concerning the vessel, a leading certainty
Concerning the character Of the men.
The course u proceeding seemed open to many obee.
lions II elevates the i.cf1cutal. inferior private interest