Still another question occurs. Beyond all doubt there were “despatches” on board the ship,—such “despatches” as rebels can write. Public report, the statement of persons on board, and the boastful declaration of Jefferson Davis in an official document that these emissaries were proceeding under appointment from him, which appointment would be a “despatch” of the highest character,—and necessarily with instructions also, being another “despatch,”—seem to place this beyond denial. Assuming such fact, very notorious at the time of sailing, the ship was liable to capture and to be carried off for adjudication, according to British authorities,—unless the positive judgment of Sir William Scott in the case of the Atalanta,[92] and also the Queen’s Proclamation at the commencement of the Rebellion, enumerating “despatches” among contraband articles, are treated as nullities, or so far modified in application as to be words and nothing more. Even if the judgment be uncertain and inapplicable, the Queen’s Proclamation is not. Does it not warn British subjects against “carrying officers, soldiers, despatches, arms, military stores or materials, … for the use or service of either of the said contending parties”? And we have the authority of a recent English writer, quoted by the English press, who characterizes the conveyance of despatches as “a service, which, in whatever degree it exists, can only be considered in one character, as an act of the most noxious and hostile nature.”[93]
But however binding and peremptory these authorities in Great Britain, they cannot be accepted to reverse a standing policy of the United States. For the sake of precision in rights claimed and accorded on the ocean, our Government has explained in treaties what was meant by contraband. As early as 1778, in the treaty with France negotiated by Franklin, after specifying contraband articles, without including despatches, it is declared that
“Free goods are all other merchandises and things which are not comprehended and particularly mentioned in the foregoing enumeration of contraband goods.”[94]
This was before the judgment of Sir William Scott, recognizing despatches as contraband; but in other treaties subsequent to this well-known judgment, and therefore practically discarding it, after enumerating contraband articles, without specifying “despatches,” the following provision is introduced:—
“All other merchandises and things not comprehended in the articles of contraband explicitly enumerated and classified as above shall be held and considered as free.”[95]
Then again John Quincy Adams, in his admirable draught of a treaty for the reform of Maritime Rights, after declaring specifically what shall be “under the denomination of contraband of war,” without including “despatches,” adds:—
“All the above articles, and none others, shall be subject to confiscation, whenever they are attempted to be carried to an enemy.”[96]
Thus we have not only words of enumeration without mention of “despatches,” but also words of exception. These testimonies constitute the record of our nation on this question.
Here it may be remarked, that, while decisions of British Admiralty Courts are freely cited, there are none of our Supreme Court. If any existed, they would be of the highest value; but there are none, and I can imagine no better reason than because the question is so settled by treaties and diplomacy as to be beyond judicial inquiry.
The conclusion follows, that, according to American principle and practice, the ship was not liable on account of despatches on board. And here again we have the testimony of Continental Europe, if we may accept the statement of Hautefeuille, and it would seem also that of the French Government, in the recent letter of M. Thouvenel.