The New York herald., 1861-12-29

captor is interested, prejudiced and perhaps vio-
lent-the neutral if truly neutral is disnterested,
subdued and helpless. The tribunal is irresponsi-
BILE, while its Judgment is carried into instant
execution. The captured party is COM
pelled to submit, though bound by no
quiesce. Reparation is distant and problemati-
cal, and depends atlast on the justice, magnani.
nifty or weakness Of the State in whose behalf
and by whose authority the capture was made.
Ont of these disputes reprisals and wars neeessa-
rily arise, and these are SO frequent and
destructive that it may well be doubted
whether this form Of remedy is not a
greater social evil than oil that could
follow If the bellgercnt right Of search were uni.
versaly rcnounccd and abolished forever. But
carry the one step farther:-What if the
| State that has made the capture unreasonaby re-
fuse to hear the complaint of the neutral or to
] dress it? In that case the very act of capture
| would be an act of war-of war begun without
notce-and possibly entirely without provocation.
| think all unprejudiced minds will agree that
imperfect az the existing judicial remedy may be
supposed to be- it would be, as general practice,
better to follow it than to adopt the summary one
oflcaving the decision with the captor and relying
upon diplomatic debates to review his decision.
Practically it is question of choice between law
with its imperfections and delays, and war with ts
| evils and desolatons
Nor is il ever to be forgotten that neutrality hon.
csy aud justly preserved, is always the harbinger
of peace, and therefore ia the common interest
Of nations which is only saying that it is the inter-
est of humanity itself.
At the same time it is not to be denied that IL
may sometimes happen that the judicial remedy
will become mpossble--as by the shipwreck Of
the prize vessel, or other circumstances which ex-
cuse the captor from sending or taking her intu
| port for coniscation. In such case the right Of
the captor to the custody of the captured persons
and to dispose Of them, if they really contra
band so to defeat their unlawful purposes,
cannot reasonably be denied.
What rule shall be applied in such case? Clear.
ly the captor ought TO be required to show that
the failure of the judicial remedy results from cir.
cumstances beyond his control, and without bis
fault. Otherwise he would be allowed to derive
advantage from wrongful act of his own.
In the present Captain Wilkes.
after capturing the contraband persons
and making prize OF the Trent, in what
seems TO us a perfectly lawful manner,
instead of sending her into port, released her from
the capture, and permitted her to proceed with
her whole cargo upon her voyage. He thus cf
fectually prevented the judicial examination which
might otherwise have occurred. If now the cap.
ture of the contraband persons and the capture OF
the contra raband ,esssI, 10 be regarded, not Al
i two scparable distinct transactions under the
II law OF nations, but as one Transaction one cap
ture only thop il follows that the capture IN this
case left unfinished or was abandoned
Whether Tie United States have q right to retain
the chief public benefits 81 it. namely, the custody
Of the captured pc.soi,s on proving tlicm 10 be
contraband, viii depend upon the Preliminary
question whether the leaving of the transaction un
finished was necessary, or whether it was uoneces
sary, and therefore yolutary. IF it was Necessary
Great Britain, as We suppose, mas " coarse
wsivc the defect, and tho consct uent failure or the
judicial remedy On the other hand, ii is not seen
how tie United States can insist upon her wayel
Of that naieial remedy, if tie defect of the cap.
ture resulted from an act Of Captain Wilkes which
would be = fault on their side.
Captain Wilkes has presented to this government
his reasons for releasing the Trent
II forebore TO seize her. he says, ''in consc
quence Of my being reduced in officers and
crew, and the arrangement it would cause inno.
cent persons, there being Il largo Number Of pas
sengers who would have been put to great loss
and Inconvenience, as well as disappointment, from
the interruption il would have caused them
in not being able to join the steamer from
st. Thomas to Europe. | therefore concla.led
to sacrifice tho interests Of my officers AMI
in the prize, and suffered her to proceed after
the detention necessary to effect the transfer Of
| those commissioners, considering had obtained
the important end had in view, and which affect
ed the interests of country and interrupted the
! action of that Of the Contedefates.n
| shall consider, first, how these reasons ough. to
affect the action of this government; and, second
ly, how they ought TO be expected to affect the
action of Great Britain. The reasons are satisfac-
tory to this government so far as Captain Wilkes
Is concerned. 1t could not desire that the San
| Jacinto, her officers and crew should be exposed
to danger aud loss by weakening their number to
detach prize crew to so board the Trent
I Still less could it disayow the humane motive OF
| preventing inconyeniences, losses, and perhaps
disasters, TO the severa'hunGred innocent passen-
gers found ON board the prize vessel.
| Nor could this government perceive any ground
for the fact that the 4ho,rf,