Page:Southern Historical Society Papers volume 07.djvu/112

104 But notwithstanding my indignation at the offensive and unworthy bearing of Judge Stewart, I am not willing, after a full examination of the facts of this case to commit the Government to interference with it in any form.

The moral weight which should attach to its interposition would be impaired by advancing a claim, which it is almost certain would be allowed neither by the British courts nor the British Government, and which we could sustain only by affirming principles doubtful in law and equivocal in morals. The facts upon which my opinion rests are these: Of the party actually engaged in the capture—fourteen or fifteen in number—only one has any claim to the character of a Confederate citizen or belonging in any way to service; this was the Second Officer, H. A. Parr, who, although born in Canada, had lived for the last seven years in Tennessee. The Lieutenant-Commanding, John C. Braine, I have ascertained beyond doubt, had been released from Fort Warren on the application of the British Minister, on the allegation of being a British subject. This, indeed, is the substance of his own admission; nor has he since been within the Confederacy.

Although he states that he had been in our military service at an earlier period, the declaration is probably untrue, and would not be received to contradict the deliberate and solemn allegation by which he obtained his liberty. He is, I think, estopped from claiming—what, in truth, I do not believe he ever possessed—the Confederate nationality. Passing over for the present the consideration of what effect Parker's connection with this enterprise may have upon its character, it appears to have been a capture made for the benefit of the Confederacy by a body of men, without any public authority, and who, with the single exception of a subordidinate officer, were British subjects.

I do not think such a case can be brought within the application of the principle, perfectly well settled, and which in a war like the present our Government ought never to yield, that the citizen of a belligerent State, with or without a commission, may capture enemies' property at sea. That doctrine (as may be seen in the elaborate discussion of the opinions of British and foreign jurists by Judge Story, in the case of the Ship Emulous, 1 Gall. Rep., 563,55; 8 Cranch, 110—a discussion which Mr. Phillimore pronounces perfectly exhaustive) is founded upon the hostile relations which the mere declaration of war creates between citizens of the contending States. A commission would appear to me