Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1862-01-09

a
recton obviously divergent from the of the Ten
be quite harmless blank shot, while rhoulj
So also learn that the Trent approaching tho
San Jacnto slowly when the shell fred her
bows but the contrary, the Trent to be
moving under u head Of steam, as if with purpose 10
pass the San Jacnto.
Fa faz) did not boa Trent with large armed guard
but he left his marines in bis boat when he entered
Trent. He showed his instructions from Capt Wilkes IN
search for the four prisoners named in respectful and
though decided manner and he asked the captain
of the Trent to show his passenger list which refused
The Lieutenant, informed did not employ ALSO
Lutte force in transferring the but he used sso
refusal or resistance would be unavailing.
So also informed that the captain the Trent was
not at anV time or in any way required to go on board
These notifications of the case as presented by Comma
der Williams are based upon our official reports.
have to remind your Lordshp of some facts which
doubtessy were omitted by Earl RUSSELL with the very
proper and becoming motive of allowing them be brought
into the case on the part of the United States in the way
most to this government These facts
the time the transaction occurred instruction e
listing in the United States which tkis
forces that regard this domestic strife, the United
states considered Great Britain friendly power, while
she had assumed for herself the attitude OF neutral ana
that Spain considered in the same light and had
ed the same attitude as Great Britain.
1t has been settled by correspondence that the United
states and Great Britain mutually recognized applicable
to this local sr these articles of the declaration made
o the congress OF Fafs IN 1885, VIZ that the neutral
friendly flag Should enemys goods not conaband
war; and that neutral goods not contraband of
that neutral &Oods not condraband of not liable
capture under enemys Gag. These exceptions of
traband from favor negative
es by the rule hitherto every where recognized as
of the law OF nations that whatever is contr&band liable
to capture and confscaton in all cases.
James NJ Mason and f. j. Macfarlane citizens of the
United States and residents of Virginia John Slide and
dents of Louisiana 1t we'll known in Havana,
these parties embarked in the Trent James NJ Mason
proceeding England in the affected character of
Minister Plenpofentiay to the Court of ST. James, under
pretended commission from Jefferson Davis, who had
sumed 10 be Pre- dent of the nsurrectonay party the
United States; and e. j. Mactarane going with him
like unreal character of Secretary of Legation to the pre-
tended mission. John Sde in similar circumstances was
going Paris pretended Minister Emperor of
the French and George Euss the chosen Secretary
Legation that simulated mission. The fact that these
persons had assumed such characters has been svowed
the Jefferson Davis in pretended message to
lightly presumed that these Ministers bore pretended ere
dentals and nstru TONS and such papers in the law
Paris that these dispatches having escaped the Of
he Trent, were actually conveyed and delivered to ennis
essential yet proper state do upon information
and belief that the and agent and all the officers
the Trent, including the Commander Williams, had know
edge Of the assumed characters and purposes of the per
sons named, whea they embarked on that vessel.
Your Lordship will perceive that the before u
instead of presenting merely fragrant of violence on
the part ofCapan Wilkes, as might well be inferred
Government was undertaken simple legal and bell
gerent proceeding Captain Wilkes and capture
nenr vessel engaged in carrying conra0and of war; for
The question before is whether this proceeding was
hozed by and conducted according to the law Of ma
tions. it involves the following inquiries:
lst Were the persous PANIED and their supposed ds-
I'd Night Captain Wilkes lawfully stop and pearch tie
Trent for these cOntrabaDd persons and dispatches
Sd hight he exercise that right in lawful and proper
manner?
4h Having found the cont1aband persons on board and
n presumed possession of the conaband dispatches, had
he right to capture the persons?
9Th Did he exercise the right of capture the manner
allowed and recognized by the law of naions?
IT all these enquiries shall be resolved in the affirmative
the British Government will have claim for repara-
ton.
address myself to the first enquiry namely were the
four persons mentioned and their supposed dispatches
traband.
Maritime law generally deals its professors say in
renlhat IS with property and SO seldom with persons
that seems strainlng OF the term contraband apply It
to them But persons well property may become CON
traband since the word means broadly contrary pro-
clamati0n, prohibited illegal, unlawful.
All writers and judges pronounce naval military per
sons in the service OF the contraband Vatte Says
allows cut OH from enemy all his resources
and to hinder him from sending ministers assist
ance And Cir William Scott may stop the embas-
sado of your enemy bis passage Dispatches are not
less clearly contraband, and the bearers courers who
to carry Them sill under the same condem alton.
OF usurpng power not recognized as legal by either The
But wouli disappear being subjected what is the
true test In all cases-namey the spirit of the Law. Sir
and detained as contraband, says
" 1t appears to me on principle, to be but reasonable
that when is OF sufficient Importance to the enemy
such persons shall be sent the public service at the
public expense, shall afford equal ground forfeiture
Iaately connected with the hostile operations"
trust that have shown that the four persons who wac
taken iron the Trent by Captain Wilkes and their dispatch
The second enquiry is whether Capt Wilkes had a right
by the law naous to detan and search the Trent?
The Trent though she carries the mails a contract
or merchant vessea carrier for hire Maritime
law knows only three classes Of of war;
revenue vessels and merchant vessels. The Trent falls
within the latter cl,ss Whatever disputes have existed
concerning the right of visitation time peace
none it is supposed has existed in modern times about
right OF belgerent in time of capture contrabad
in neutral and friendly merchant VESSELS and of right
of visitation and search in order to determine whether
they are neutral and are documented as such according
the law of nations.
assume in the present what l read British au
thorltles IS arded by Great Britain herself
time law that the that the Trent proceed
ing from neutral port to another neutral port does not
modify the right OF the belligeTent captOr
The third question is whether Capt Wilkes exercised the
right of search in a lawful and proper manner?
Il doubt hung this point the case was nrp
in the of it adopted the British
mvnt thUk have already passed away be fore the
notifications OF that statement which have already SUB
mtted.
proceed to the fourth enquiry, namely: having found
the expected cOnrabaDd board OF the Trent had Capt
Wilkes right to capture the same?
Such capture is the Chief if the only recognized oh
ect OF the permitted visitation and search prncpa
OF the law 49, that 6egerents exposed to DANCE may pre-
vent the contraband person things from applying them
selves being applied to the hostile or puro0ses de-
signed The law liberal in this respect that when CON
traband Is found on board neutral vessel not only is the
conraband forfeited bat the vessel which the vehicle Of
Its passage transportation being tainted also becomes
conraband, and is subjected capture and confscation
Only The fifth question remains namely Did Captain
Wilkes exercise the righs of capturing couraban IN
conformity with the law of nations?
1t just here that the difficulty Of the case begin what
is the manner which the law of prescrbes for dis
posing Of the contraband when you have found and e
it on board OF a neutral vessel?
The would be easily found the question were
what you should do with the con abaDd vessel Va, nt
take or send her into convenient port and subject
Judicial prosecution there admiralty which will try aal
eide the questions of beigerency, neutrality c0nraband
ana capture. co. again. you would promptly find the
answer the question What the manner of pr0-
ceedng prescribed by the law of in regard to the
II 1t re property or things of pc
cunlary value But the question here the
thofvu