From the Richmond Dispatch, 8/15/1864, p.1, c. 5

The Case of Mr. R. D. Ogden. – Upon the rendering of his decision by Judge Halyburton, on Thursday last, maintaining the liability of conscription of Mr. Ogden as a domiciled foreigner, Mr. Lyons brought to the Judge’s attention an oversight of his in ignoring all reference to the treaty of 1796 between the United States and Great Britain, which was still in full force as between the latter and the Confederate States. The Judge thereupon suspended the operation of the decision until he would hear further argument upon that point, and fixed Saturday last for the argument to be presented.
Mr. Lyons accordingly addressed the court on Saturday on this point. He said that in the twenty-first article of the treaty of 1794 it was agreed that the subjects and citizens of the two nations should not do any act of hostility or violence against each other, nor accept commissions in the army of any country at war with either, nor enlist, or attempt to enlist, the citizens or subjects of the other party. – The twenty-sixth article provided that if, at any time, a war should take place between the two contracting parties, that merchants and others of the two nations residing in the dominions of the other should have the privilege of remaining and continuing their trade so long as they behaved themselves peaceably and committed no offence against the laws, and that in case their conduct should render them suspected, and the respective governments should think proper to order them to remove, a term of twelve months from the publication of the order should be allowed the party to remove. – Mr. Lyons contended this treaty was as much in force in respect to the Confederate States at present as it is to the United States; and that, therefore, Mr. Ogden’s right to stay here was apparent, in the absence of any such notice to remove, as the treaty required to be given. Mr. Lyons showed, further, that by the fourteenth article of the treaty the subjects of Great Britain are authorized to come here and to reside here without any limitation of time, so far as their national character is concerned, and so far as all rights dependent upon, or derived from, that national character are concerned. They have, under that article, a right to hire and possess houses and warehouses for purposes of commerce, and generally; and the treaty further guarantees to merchants and traders on either side the most complete protection.

Mr. Lyons maintained that these rights and privileges referred alike to domiciled as to commorant foreigners, inasmuch as they relate to persons who, but for the treaty, would be domiciled foreigners, and who, notwithstanding the treaty, are to be regarded for some purposes, perhaps as domiciled foreigners. Under this treaty, he argued that if the Confederate States and England were at war, the treaty being operative in the Confederate States, two consequences would follow: first, that an Englishman in the Confederacy could not be taken and put into the army; and secondly, that he could not be driven out of the county, except in the cases provided for in the treaty, and then only after twelve months’ notice to quit. But the Confederate States was not at war with England, and the right having been conceded to all Englishmen, under that treaty, to come here and carry on their business, without limitation as to time, or incurring the risk of being put into the army, or forfeiting their domicile of origin, he asked, upon what principles of the law of nations, or proper interpretation of this treaty, could Mr. Ogden be forced into the army or compelled to leave the country without the notice provided for.
Mr. Lyons quoted from Judge Marshall to show that treaties were held to be the supreme law of the land, and referred to the indignant tone of which reference was made by Earl Russell to the practice of decoying British subjects into the Federal army, brought to his attention by Earls Clanricarde and Derby, in the House of Lords. He referred also to a letter of instruction from the War Department here to General Magruder in respect to the release of French subjects who were forced into the Confederate army in Texas. In these cases, the parties were ordered to be released, in conformity with the stipulations of the French and United States treaty, under the protection of which they came here. This and the British treaty being co-existent and of equal force in respect to the subjects of the respective sovereigns here, should be held to apply without distinction. The practice was, however, to observe the stipulations of the treaty as regards French subjects, but disregards them as regards subjects of Great Britain.

Mr. Lyons closed with a very lucid argument in favor of the integrity of the British treaty and a dissertation upon the conditions which alone could justify the abrogation of a treaty, which he showed, by a series of authorities, to be not even a state of war between the contracting parties; nothing, in fact, but a positive refusal on the part of one of the parties to acknowledge its force and carry out its provisions in good faith.

The Judge desired time to consider the points argued by Mr. Lyons, and required a renewal of Mr. Ogden’s bail till this morning, at which time he thought he would be able to render his decision.

• Prev
• Next