That an
emissary is not a contraband of war as much as a musket or a soldier,
appears preposterous, and offers a distinction which, as Mr. SEWARD
observes, disappears before the spirit of the law, M. THOUVENEL to the
contrary, notwithstanding. It was therefore in the mode of procedure in
regard to the seizure of the emissaries that the trouble lay. According
to law, the vessel, if carrying contraband of war, is liable to seizure.
But if this assumed contraband be _men_, these may not be guilty, and
are entitled to a trial. Still, as the law--or want of law--stands, the
seizure of the vessel is the requisite step, the minor issue being
practically regarded as the major; an anomaly not less striking than
that which still prevails in certain courts, where, to recover damages
for seduction, the defendant can only be mulcted in a penalty for the
loss of time caused to his victim. It was not possible for Captain
WILKES to seize the vessel, Great Britain declined to waive her claim to
the execution of every jot and tittle of the letter of the law, and
consequently the 'contrabands' were surrendered.
The absurdity of involving two great nations in a war, on account of a
legal paradox of this nature, requires no comment.
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