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action in the premises. We have also seen how just and reasonable it is that this should be so. In our own State we have, as citizens of that State, granted to all others certain rights as against us; but we are very
careful that the manner of executing such rights should be strictly legal. What should we think of the man who, because he deems his claim just, appropriates our property to himself before the court has passed upon the claim itself? As we have said before, we always require a judgment before an execution can be issued. And can a neutral nation for a moment admit a different rule ? Can she allow a belligerent to usurp the position of a court, and determine that what she is carrying is contraband? Can she allow the belligerent to confiscate the so-called contraband goods without even the form of a trial? Why, piracy in its worst phase would be hardly worse than such a state of law, or, we might better say, lawlessness.
Then, too, there is no nation in the world that ought to be more earnest than our own in endeavoring to prevent such a case passing as a precedent. We have always been battling for the rights of neutrals and against the encroachment of belligerents. And how clearly is it for our interest still to do so, unless we intend to indefinitely increase our naval force. And even then, could we ever submit to allow belligerents thus to interfere with our commerce, to permit captains of vessels to usurp the position of the court, and seize and carry off goods, letters and passengers, because, in his opinion, they were contraband? But the case is too evident an invasion of neutral rights to require argument. We submit, therefore, we are clearly wrong in endeavoring to support this act of Captain WILKES. It is evidently against our interest, against all reason and justice to do so, and it only remains, therefore, for us to repudiate the act, make what reparation we can, and by no means ever allow it to remain as a precedent.
In regard to our giving up Messrs. Mason and SLIDELL, there cannot, in our opinion, be a doubt as to its being our duty to do so. No one can feel more strongly than we do the baseness of the crime those men have committed, nor would any one speak in severer terms of the unfriendliness of the act of the captain of the Trent in giving them a passage ; and we believe that England will be entirely willing, if we demand it, to make any reparation she can for this violation of her neutrality. But these considerations do not, in our opinion, affect our position and duty. If we have done illegally in seizing these commissioners, certainly we must set ourselves right. An apology or a repudiation of the act would, of course, amount to nothing, so long as we retained the benefit of the act. If we are wrong, we cannot get right until we have given up the advantage we have obtained by our wrong. Had Captain Wilkes taken the vessel and appropriated it to himself and crew, before
court had passed upon the questions involved, what would an apology amount to unless accompanied with an offer to restore the vessel or its equivalent.
Neither is our position an anomalous one. It is always necessary in legal proceedings that we should proceed rightly, or else pay the penalty of our mistake. A litigant may have the justest claim on earth, and still, if he comes into court incorrectly, he will be nonsuited, and perhaps lose his claim, and have to pay his adversary's costs. We may say this is not just; and yet, if we reflect a moment, we will see that the law is not to blame. It furnishes every claimant with a remedy, but if one fails to take the proper course for obtaining redress, it is the ignorance of the
claimant, and not the injustice of the law, that works out the evil. So in this case we had a remedy, and had we proceeded properly we should have obtained all we desired. But, instead of that, we have committed an error, and must, without doubt, suffer the penalty of our mistake. It is certainly an unfortunate affair ; but we do not, of course, think any blame should attach to Captain Wilkes. He acted necessarily without instructions, yet his motives and intentions were in the highest degree praiseworthy. He was truly endeavoring to serve his country in seizing the commissioners, and to accommodate the passengers of the Trent and show England his good will by not detaining the vessel. That he did not at once see the full force of the law of the case, is not at all to be wondered
A good captain is not frequently an experienced lawyer. Still neither these good motives nor ignorance of the law can alter the legal effect of the act, and we see, therefore, no escape from the unpleasant duty of delivering up these commissioners, if England demands it of us properly.
But, on the other hand, we have a very serious claim on England, growing out of this transaction, which should be adjudicated. We have seen above that the captain of the Trent grossly violated the character of a neutral in lending himself to the service of the Confederate States; that he did all he could to benefit one belligerent and injure the other. If so decided an injustice as this, so evident a violation of international law is to go unrebuked, we think all would unite in saying that even war itself is preferable to such neutrality. But in our opinion England has Do wish to do us, at the present time, an injustice. It is not strange that she, like any other nation, should first consult her own interest, nor that the upholders of a monarchy should suppose they see in our existing difficulties the natural decay of free institutions. All this must be expected, their view of our troubles being from a different stand-point and through a different medium from ours. If, therefore, she is simply just in her acts towards us, and neutral in her position, we have no right to demand or hope for more, and this much we believe she will willingly grant us. When, therefore, the proper demand is made on her, all the reparation we could ask for this unfriendly act of the captain of the TRENT we shall undoubtedly receive. A somewhat similar case happened in 1847, during our war with Mexico. In August of that year the British mail packet Teviot, Captain May, carried over from Havana to Vera Cruz General PAREDES, ex-President of Mexico. Our government, through Mr. BANCROFT, our Minister at London at the time, presented the matter to the British Cabinet, complaining of this act of Captain May, and demanding his dismissal from the service of his government. Lord PalVERSTON, November 16, 1847, admitted the justice of our complaint, and announced that the offending officer had been dismissed.
A similar demand made now in the case of the Trent will, in our opinion, bring a similar result. At all events, let us not go to war so long as we are in the wrong, and until we have just cause of complaint, which cannot be settled in a less violent way.
SURVEY OF THE ISTIMUS OF DARIEN.
REPORT BY E. CULLEN, M. D., M. R. C. S. E.
66 North Cumberland-strect, Dublin, November, 1861.
I have lately learnt with great satisfaction that several French engineers, under the direction of M. Bonardiol, have made a partial exploration of the Isthmus of Darien, and are to sail for Darien again next month, to make a detailed survey of the line for a ship canal between the Atlantic and Pacific Oceans. There is thus, at length, a prospect of this grand project being carried into execution. The line about to be surveyed, which was discovered by me in 1849, after several long and perilous explorations in different directions through the forests, extends from the Gulf of San Miguel, on the Pacific, in a direction N. E. by E. } E. by compass, to Caledonia Ilarbor and Port Escoces on the Atlantic. The Gulf of San Miguel receives numerous rivers, the largest of which are the Tuyra and the Savana, which unite together just before falling into it. The Savana is navigable for the largest ships up to the confluence of the Lara with it, that is, for fourteen miles towards the Atlantic. From the confluence of the Lara with the Savana, at which point the future canal will commence, the line extends to the Chuquanaqua, a distance of 12 miles. From the Chuquanaqua the line follows the bed of the Sucubti, one of its tributaries, up to the confluence of the Asmati with the Sucubti, a distance of nine miles; and then continues along the bed of the same river Sucubti to a point nine miles higher up. From that point to the Atlantic the distance is six miles. The whole length of the projected canal will therefore be 35 nautical, or nearly 41 English miles.
After my first explorations in 1849, for which previous travels in the • interior of British Guiana, (Demerara, Essequibo, &c.,) Spanish Guiana,
(Venezuela,) and many other forest countries in both hemispheres had well qualified me, I made subsequent voyages to and explorations in Darien in 1850, 1851 and 1852, alone, and at my own expense. I then proceeded to Bogota, the capital of New-Granada, where I applied to the Congress, who passed a law, granting a privilege for cutting the canal, together with a concession of all the lands necessary, and of 200,000 acres in addition, to EDWARD CULLEN, Charles Fox, John HENDERSON and Thomas BRASSEY. The above law received the exequatur of JOSE Hilario Lopez, the President, and of Jose Maria Plata, the Secretary for Foreign Affairs, on the 1st of June, 1852.
Soon after my return to London with the concession, the Atlantic and Pacific Junction Company was formed, with the object of carrying the project into execution. On the 29th of March, 1853, the Emperor NAPOLEON gave an audience to a deputation of fifteen, consisting of Sir CHARLES Fox, Mr. BrassEy, several of the directors of the company, and myself, invited us to dine with him at the Tuileries, and declared his determination to cut the canal, if it were practicable.
On the 17th of December, 1853, Mr. LIONEL GISBORNE, Messrs.
FORDE, BENNETT, DEVENISH, ARMSTRONG and Bond, the company's engineers, and myself, sailed from Southampton in the West India mail steamer Orinoco, for St. Thomas, whence the assistant engineers proceeded to Navy Bay and Panama, and thence to the Gulf of San Miguel and the River Savana, to survey the line from the Pacific towards the Atlantic side; while Mr. GISBORNE and myself proceeded to Jamaica, in the Teviot, and thence, in H. M. S. EspiegLE, to Caledonia Harbor, where we arrived on the 21st of January, 1854. In February and March, 1854, H. M. S. ESPIEGLE, Commander Hancock, H. M. S. DEVASTATION, Commander De HORSEY, the French war steamer CHIMERE (avis), Capt. JACREIGUIBERRY, and the United States sloop of war CYANE, Capt. HolLINS, lay at anchor in Caledonia Harbor; and H. M. steamer VIRAGO, Commander MARSHALL, lay in the Savana River, with the object of affording assistance to the engineers. At the same time II. M. surveying ship Scorpion, Commander Parsons, was engaged in surveying the Atlantic harbors and coast for the Hydrographic Office. It may be necessary to state that no British, French or American man-of-war had ever before anchored either in Caledonia Ilarbor or in the Savana River. During the above two months, the line, from the Pacific to the point on the Sucubti, mentioned above as being six miles distant from the Atlantic, was surveyed by the assistant engineers, and found, so far, to present every facility for the excavation of a canal. But, of the six miles not surveyed, Mr. GISBORNE, after a most cursory, hurried and imperfect reconnoissance in a wrong direction, reported that three miles would require to be tunnelled, although he admitted, in the same report, that “his examination of the country was by no means complete.” Upon this, the company, deeming the presumed necessity for a tunnel a formidable obstacle, immediately dissolved, returning the shareholders the amounts of their deposits, without any deduction.
Five months afterwards, however, the Admiralty published the “Survey of Caledonia Harbor and Port Escoces,” by Commander Parsons, of H. M. surveying ship SCORPION, in which a wide and low valley is plainly laid down immediately to the northwest of the mountain, which, according to Mr. GISBORNE's report, would render a tunnel necessary. The existence of that valley, which is marked in Parson's “Survey" precisely in the position assigned to it by me four years before the expedition went out, completely obviates the necessity for a tunnel. I repeatedly offered to guide Mr. GISBORNE to it, and had accompanied the expedition for that purpose; but that gentleman was actuated by so strong a desire to find out a valley for himself, and to mark out a line in a direction different from that indicated by me, that he not only refused me permission to accompany him, but gave directions that I was not to be allowed to leave the ship, so that I was actually a prisoner on board the ESPIEGLE while Mr. GisBORNE was “botching" my project. Having failed in his rambling and ill-directed attempts to find a valley between the range of mountains which runs parallel to the coast, Mr. GISBORNE hastily “concluded his surveying operations on the 29th of March," and returned to London with his celebrated report about the tunnel, which threw complete discredit on my statements. Fortunately for me, however, the survey made by that distinguished officer, Commander Parsons, completely stoltifies Mr. Gisborne's report, and confirms the veracity and accuracy of my original statements as to the existence of the valley.
In 1857, the Emperor NAPOLEON carefully examined the maps, plans and documents which I submitted to him, and referred the question to a commission of engineers of the Corps Imperial des Ponts et Chaus
The report drawn up by that commission, and presented to the Emperor by Count WALEWSKI, was decidedly in favor of the practicability of the canal without a tunnel.
In 1859 I went again to Bogota, and on my return to Paris I had the honor, on the 30th of October, of a third audience with the Emperor, who declared his decided conviction of the feasibility of the canal, saying that he could see no difficulty in it, and expressed his determination to cut it. I hope that the expedition about to sail, the sending out of which may be considered as the first step towards the carrying out of His Majesty's determination, may conduct its operations in a scientific manner, and avoid the errors which proved fatal to the success of the expedition of 1854.
RIGIT OF SEARCH.
Opinion of Lord BROUGIAM in 1807.-In the October number of the Edinburgh Review, for 1807, is an elaborate article, by Lord Brougham, on the rights of neutrals
. The following passage taken from it shows what was his opinion as to the right of search at that period, and the reason why such a right is a part of the law of nations:
“It is evident that the right to search a foreign vessel for deserters is of the very same nature, and governed by the same rules, with the right to search a neutral vessel for contraband goods. You have a right to search for those goods only because you are injured by their being on board the vessel which trades with your enemy; you have a right to search for your own runaway seamen who take shelter in the vessel, because you are injured by their being enabled to escape from you. neutral carries contraband goods, such as armed men, (which indeed treaties frequently specify in the list,) to your enemy, he takes part against you; and your remedy-your means of checking his underhand hostility—is to stop his voyage, after ascertaining the unfair object of it. If the same neutral gives shelter to your seamen, he takes part with your enemy; or, if you happen not to be at war, still he injures you; and your remedy, in either case, is to recover the property, after ascertaining that he has it on board. In both instances the offence is the samethe foreign vessel has on board what she ought not to have consistently with your rights. You are therefore entitled, say the jurists, to redress; and a detection of the injury cannot be obtained without previous search.
PEORIA ANDOQU AWKA RAIL-ROAD COMPANY.
We have received from the President of the Peoria and Oquawka Rail-Road Company a statement to the effect that the decision on railroad mortgages reported in our December No., pp. 592, 593, is not correct. We will publish in our next No. a notice of the case.