Year: 1861

tion and search. The principle of the law is that
the bellgerent exposed to danger may prevent the
contraband persons or things from applying them
selves or being applied to the hostile uses or pur
poses designed. The law is 30 very liberal in this
respect that when contraband Is found on board
neutral vessel not only is the contraband forfeited
but the vessel which is the vehicle of its passage
or transportation, being tainted, also becomes
contraband, and Is subjected to capture and con-
fscation.


Only the fifth question remains, namely--Did
Captain Wilkes exercise the right Of capturing the
contraband in conformity with the law OF nations,
1t just here that the difficulties Of the case be-
GIN: What is the manner which the law of nations
prescribcs for disposing Of the contraband when
you have found and seized il on board of the neu-
tral vessel?


The answer would be easily found If the ques-
ton were, what you shall do with the contraband
vesseE You must take or send her into conye-
nient port and subject her to judicial prosecu-
ton there in admiralty, which will try and decide
the questions Of belligerency, neutrality contra
band and capture. So, again, you will promptly
find the same answer II the question were, what is
the manner Of proceeding prescribed by the law
Of nations in regard to the contraband If 1t be
property or things of material or pccuniary
value?


But the question here concerns the mode Of pro-
cedure in regard, not to the vessel that carry
ing the contraband, nor yet to contraband
things which worked the forfeiture of the vessel,
but to contraband persons.


The books of law are dumb. Yet the question
! il a. important as it is difficult. First, the
belIigerent captor has a right to prevent
the contraband officer, soldier, sailor minister,
messenger or courier from proceeding in his un-
lawful voyage, and reaching the destined scene of
his injurious service. But, on the other hand, the
person captured may be innocent; that is,
he may not be contraband. He therefore
has right to fair trial Of the ac-
cusaton against him. The neutral State that
! has taken him under its flag is bound to pro-
| tect him If he is not contraband and is therefore
entitled to be satisfied upon that important ques-
ton. The faith Of that State is pledged to his
safety If innocent, as its justice is pledged to
| his surrender il he is really contraband.
Here are conflicting claims, involving personal
liberty, life, honor and duty. Here conflicting
national claims, involving welfare, safety, honor
and empire. They require tribunal and . trial
The captors and the captured equals, the neu
tra] and the belligerent State are equals.


While the law authorities were found silent, II


was suggested at an early day by this government
that yon should take the captured persons into a
convenient port, and institute judicial proceedings
there 10 try the controversy. But only courts Of
admiralty have jurisdiction in maritime cases,
and these courts have formulas TO try only claims
to contraband clattcls, but to try claims con-
| cernng contraband persons. The courts can en-
tertain no proceedings and render no Judgment in
| favor of OF against the alleged contYaband men.
! you can reach in those courts tecj
| sion which will have the moral weight
| Of q judicial one; by crcuitous proceeding
convey the suspected men, together with the sus-
pected vessel into port, and try there the question
whether the vessel is contraband. You can prove
| it TO be 50 by proving the suspected men to be
the vessel to be contraband.


If the men are not contraband the vessel will es-
cape condemnation. Still there is no judgment for
or against the captured persons. But it was as
sumed that there would result Fl ON the determine
ton of the court concerning the vessel legal Ger
tainty concerning the character Of the men. This
course of proceeding seemed open to many objec-
tons 1t eevates the incidental inferior private in
terest into the proper place of the main paramount
public Que, and possibly it may make the
| fortunes, the safety or the existence of
! merely personal and pccuniary litigation. More
over, when the judgment of the prize court upon
the lawfuness Of the capture Of the vessels is rem
dered, it really concludes nothing and binds neither
the belligereat State the neutral upon the great
question of the disposition to be made Of the cap
tured contraband persons. That question is still to
be really determined, IL at all, by diplomatic ar
rangement or by war; One may well express
his surprise when told that the law Of nations has
furnished no more reasonable, practical and per-
feet mode than this of determining questions OF
such grave import between sovereign Powers.
The regret VIC may feel on the occasion is,
nevertheless, modified by the reflection that
the difficulty is not altogether anomalous.
Similar and equal deficiencies are found in every
system Of municipal law, especially in the system
which exists in the greater portions Of Great
Britain and The United States. The title TO
personal property can hardly ever be re-
solved by court without rcsortng to
the fiction that the claimant has lost and the