War of the Rebellion: Serial 115 Page 1230 PRISONERS OF WAR, ETC.

Search Civil War Official Records

land; the vessel was a regular mail steamer, commanded by an officer of the British navy; it was boarded on the high seas by an officer of an armed vessel of the United States; and that under his orders the gentlemen referred to and others with them were seized as prisoners and taken from the British steamer. The law of nations in order to enforce the rights of belligerents against neutrals confers on them the right of visitation and search upon the high seas; but this right which is not to be exercised in time of peace is strictly limited as a right of war. It is said the highest authority to be 'strictly and exclusively a war right. " If upon making the search the vessel be found employed in carrying troops, dispatches or any of the enemy's property it is liable to be taken and brought before a prize court. This doctrine after full discussion has been sustained both in the courts of England and of this country. It is equally well settled that the right of search is confined to private merchant vessels and that it does not apply to public ships-of-war. Let us apply these well-settled principles to the act which we are considering. In peace the right of visit and of search are alike denied by the Government of the United States to exist for any cause whatever, even by an armed vessel in search of pirates. The British Government has insisted upon the right of visit as distinguished from the right of search, with the view of ascertaining if the vessel hoisting the American flag were really a vessel of the United States, disclaiming any right of search after verifying the character of the vessel belonging to this country; but the Government of the United States has uniformoly refused to recognize the distinction and has emphatically refused to yield its ships to the exercise of the one or the other. Mr. Webster's correspondence with Lord Ashburton in 1842 settled the question finally. Conceding then the right of the United States when engaged in war to visit and search the private merchant vessels of neutral nations for purposes sanctioned by the law of nations we must inquire how far this concession affects the act which we have undertaken to examine: the boarding a British mail steamer upon the high seas and seizing persons found there who are claimed as citizens of the United States and amenable to its laws. Are the United States engaged in war? The Government of that country has persistently refused to recognize the people of the Confederate States as belligerents. It is insisted by their public functionaries everywhere that they are engaged in suppressing a rebellion; they treat us as rebels; they deny our right to fit out privateers at the very moment when they assert that it is a right belonging to nations in a state of war; they refuse an exchange of prisoners upon any principle of public law. England certainly recognizes us as belligerent, but does this entitle the United States to exercise the rights of a nation at war when it refuses to acknowledge itself in a state of war? At most then this is by the construction of the United States but a civil war - not a public war; and where a Government refuses to conduct the conflict upon the principles of international law ought it to be tolerated in the exercise of the rights of a belligerent? The rights then of belligerents engaged in public war cannot be claimed by that Government. The right to visit and search vessels is limited to their own waters and cannot be exercised upon the high seas. What offense have Mr. Mason and Mr. Slidell committed that authorizes a vessel of the United States to seize them as public enemies upon the high seas? This right in peace exists only so far as public enemies are concerned. If these gentlemen are amenable to the laws of the United States they must be arrested within the