The Sun.
London, England, 1862-01-13 00:00:00

SUN, LONDON, MONDAY EVENING, JANUARY j 3,1 1862.

liberty, life, honour, and duty. Here are conflicting
national claims, involving welfare, safety, honour,
and empire. They require a tribunal and a trial.
The captors and the captured are equals; the neu-
trals and the belligerent State are equals.

While the law authorities were found silent it
was suggested at an early day by this Government
that you should take the captured persons into a
convenient port and institute judicial proceedings
there to try the controversy. But only Courts of
Admiralty have jurisdiction in maritime cases, and
these Courts have formulas to try only claims to
contraband chattels, but none to try claims con-
cerning contraband persons. The Courts can enter-
tain no proceedings and render no judgment in
few:Mr or against the alleged contraband men,
It was replied, all this is true; but you can reach
in these courts a decision which will have the moral
weight of a judicial one, by a circuitous proceed-
ing. Convey the snspected men together with the
suspected vessel, into port, and try there the ques-
tion where the vessel is contraband. Yon can prove
it to be so by proving the suspected men to be con-
traband, and the Court must then determine the
vessel to be contraband.
If the men are not contraband the vessel will
escape condemnation. Still there is no judgment for
or against the captured persons. But it was assumed
that there would result from the determination of
the Court concerning the vessel a legal certainty
concerning the character of the men. This course
of proceeding seemed opened to many objections. It
elevates the incidental inferior private interests into
the proper place of the main paramount public one,
and possibly it may make the fortunes, the safety,
or the existence of a nation depend on the accident
of a merely personal and pecuniary litigation.
Moreover, when the judgment of the Prize Court
upon the lawfulness of the capture of the vessels is
rendered it really concludes nothing, and binds
neither the belligerent State nor the neutral upon
the great question of the disposition to be made of
the captured contraband persons. That question is
still to be really determined, if at all, by diplomatic
arrangement or by war.
One may well express his surprise when told
that the law of nations has furnished no more
reasonable, practical, and perfect mode than this of
determining questions of such grave import between
Sovereign Powers. The regret we may feel on the
occasion is, nevertheless, modified by the reflection
that the difficulty is not altogether anomalous.
Similar and equal deficiencies are found in every
system of municipal law, especially in the system
which exists in the greater portions of Great Bri-
tain and the United States. The title to personal
property can hardly ever be resolved by a Court
without resorting to the fiction that the claimant
has lost and the possessor has found it ; and the title
of real estate is disputed by real litigants under the
names of imaginary persons.
It must be confessed, however, that while all
aggrieved nations demand and all impartial ones
concede the need of some form of judicial process
in determining the characters of contraband per-
sons, no form but the illogical and circuitous one
thus described exists, nor has any other yet been
suggested. Practically, therefore, the choice is
between that judicial remedy or no judicial remedy
whatever.

If there be no judicial remedy, the result is that
the question must be determined by the captor
himself on the deck of the prize vessel. Very grave
objections are against such a course. The captor is
armed, the neutral is unarmed. The captor is inte-
rested, prejudiced, and perhaps violent; the neutral,
if truly neutral, is disinterested, subdued, and
helpless. _ _

Thf tribunal is irresponsible, while its judgment
is carried into instant execution. The captured
party is compelled to submit, though bound by no
legal, moral, or treaty obligation to acquiesce. Re-
paration is distant and problematical, and depends
at lust on the justice, magnanimity, or weakness of
the State in whose behalf and by whose authority
the capture was made.
Out of these disputes reprisals and wars neces-
sarily arise, and these are so frequent and destruc-
tive that it may well be doubted whether this form
of remedy is not a greater social evil than all that
could follow if the belligerent right of search were
universally renounced and abolished for ever. But
carry the case one step further.
What if the State that has made the capture un-
reasonably refuses to hear the complaint of the neu-
tral or to redress it ? In that case the very act of
capture would be an act of war, of war begun with-
out notice, and possibly entirely without provoca-
tion.

I think all unprejudiced minds will agree that,
imperfect as the existing judicial remedy may be
supposed to be, it would be, as a general practice,
better to follow it than to adopt the summary one
of leaving the decision with the captor, and rely-
ing upon diplomatic debates to review his decision.
Practically it is a question of choice between law,
with its imperfections and delays, and war, with its
evils and desolations.

Nor is it ever to be forgotten that neutrality,
honestly and justly preserved, is always the har-
binger of peace, and is therefore the common inte-
rest of nations, which is only saying that it is the
interest of humanity itself.

At the same time it is not to be denied that it
may sometimes happen that the judicial remedy
will become impossible—as by the shipwreck of
the prize vessel, or other circumstances, which
excuse the captor from sending or taking her into
port for confiscation. In such a case the right of
the captor to the custody of the captured persons,
and to dispose of them, if they are really contra-
band, so as to defeat their unlawful purposes, can-
not reasonably be denied.
What rule shall be applied in such a case ? Clearly
the captor ought to be required to show that the
failure of the judicial remedy results from circum-
stances beyond his control and without his fault.
Otherwise he would be allowed to derive advantage
from a wrongful set of his own.
In the present case, Captain Wilkes, after captur-
ing the contraband persons and making prize of the
Trent in what seems to ns a perfectly lawful man-
ner, instead of sending her into port, released her
from the capture, and permitted her to proceed
with her whole cargo upon her voyage.
Ile thus effectually prevented the judicial exami-
nation which might otherwise have occurred. If
now the capture of the contraband persons and the
capture of the contraband vessel are to be regarded,
not as two separable or distinct transactions under'
the law of nations, but as one transaction, one cap-
ture only, then it follows that the capture in this
case was left unfinished or was abandoned.

Whether the United States have a right to retain
the chief public benefits of it—namely, the custody
of the captured persons, on proving them to be con-
traband, will depend upon the preliminary question
whether the leaving of the transaction unfinished
was necessary, or whether it was unnecessary, and,
therefore, voluntary. If it was necessary, Great
Britain, as we supp )se, must of course waive the
defect, and the consequent failure of the judiAal
remedy.

On the other hand, it is not seen how the United
States can insist upon her waiver of that judicial
remedy, if the defect of the capture resulted from
an act of Captain Wilkes, which would be a fault
on their owu side.

Captain Wilkes has presented to this Govern-
ment his reasons for releasing the Trent.
" I forbore to seize her," he says, "in conse-
quence of my being so reduced in officers and crew,
and the derangement it would cause innocent per-
sons, there being a large number of passengers
who would have been put to great loss and inconve-
nience, as well as disappointment from the in ter-
ruption it would have caused them in not being
able to join the steamer from St. Thomas to Europe.
_ _ _

" I therefore concluded to sacrifice the interests
of my officers and crew in the prize, and suffered
her to proceed, after the detention necessary to
effect the transfer of those Commissioners, consider-
ing I had obtained the important end I had in view,
and which affected the interests of our country and
interrupted the action of that of the Confederates."
I shall consider, first, how theso reasons ought to
affect the action of this Government, and, secondly,
how they ought to be expected to affect the action
of Great Britain. The reasons are satisfactory to
Chic Uceferment, gv far Ile Captain Wilkes is een"