, 1862-01-01

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course. The captor is armed, the neatral is
nnarncd. The captor is interested, pre;u-
diced, and, perhaps, violent; the neutral, il
truly neutral, is disinterested, subdued, and
helpless. The tribunal is irresponsible, while
lts Judgment is carried into instant execution.
Ihe captured party is compelled to submit,
11hopgh bound BY no legal, moral, or treaty cb-
and problematical, and depends at Last upt,n
N 1nc justice, Hasnanimity, or weakness Of the
6tate in whose behalf and by whose authority
the capture was made.
Uat OF these disputes reprisa1s and wars re-
ddesf{ar'l5 arse; and these are So frequent and
whether this form Of remedy ia moi = "ra:,trT
social evil than all that could follow if the lr,1
l1gerent right Of search were upiFersaIIF r.
nounced and abolished f;,zeyer. But cary the
ease one step farther What If the State that
has made the capture unrcaso oliably refuse to
hear the complaint Ct the neutral or to redress
it? Il, that case, the very act Of c:pturc
would be all act OF war-of war begun with
out notice, and possibly entirely without pro
vocation.
!. l think al unprcjudiced minds will agree
that, imperfect Us the existing judicial
remedy 1snnidS - may be supposed Sc be, it
ter to follow it than to adopt the; summary
one Of leaving the decision with the eaptof,
and 1clying upon diplomatic debates to review
his decision: Praticaly. it is question Of
choice between law, with its irlpe7feetions
ana delays, and wal, with its evils and dezo:a-
taons: Nor is It ever to be forgotten that neu-
tEanIy, honestly and Justly preserved, is al
Ways the harhiDger Of peace, and therefore is
the common interest of nations, which is
only saying that it is the interest Of humanity
tself
:. AT the same time it is not to be denied that
Y11HC o+f -
remedy will become impossible, as bY the
shipWreck Ut the prize vessel, or other cir
cum6tances which excuse the captor frrIn
sending or taking her into port for confsta-
non; In sne1 case the right Of the captor
to the custody Of the captured persons and
band, so as to defeat their unlawful purposes,
cannot reasonably be denied THAT rule shall
te applied in such case2 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 de-
rive advantages from G wrongful act Of his
OWN.
In the present case, Capt Wilkes, after cap
turing the contraband persons and making
prize of the Trent in what seems to US ! per
fectIy lawful manner, instead of sending her
into port, released her from the capture and
permitted ler to proceed with her whole
cargo upon her voyage He thus c1frctually
prevented the judicial examination which
might other wise have occurred.
Il, now, the capture Of the contrlband per-
sons ard the capture Of the cont 1:aband vessel
art to be regarded, not as two separate or Dis
tinct transactions under the law OF nations,
hut us one transaction, one capture only, then
it follows that the capture in tIis case vas left
unfinished, or was abandoned Whether the
United States have right to retain the chief
public benefits Of it, namely, the custody of
t. e captured persons on proving them to be
contrahand, will depend upon the preliminary
question whether the leaving the transaction
unfinished was necessary, OF whether it was
unnecessary, and therefore voluntary, II it
Tas necessary, Great Britain, rs we suppose.
must Of course waive the defect, and the con.
sequent failure OF the Judicial remedy, On
tue other Land, it Is not seen how the United
States can insist upon her waiTer Of that Judi
cial remedy, if the defect Of the capture re-
suited from an act of Capt Wilkes, which
would Eca fsult OIL their own side.
Capt. Wilkes has presented to this Govern
mcnt his reasons for releasing the Trent az
torbore 1 to svize her. he says, in conse,-
CREW, and the arrangement it would cause in
noccnt persons, there being Z large number of
passengers who would have been put to great
loss and Inconvenience, as well as disanpoint-
Ment, from the interruption it would have
cansed them in not being able to join the
steamer from st. Thomas to Europe. there
fore concluded to sacrifice the interest of nv
officers and crew in the prize, and suffered her
TO proceed after the detention necessary to cf-
fecl the transfpr of those Commissioners, con
sldcrlng had obtained the Important end ]
had III view, and which affected the interest OF
our country and interrupted the action OF that
Of tie Confcdcrates."
shall consider, first, how these reasons
on9ht to affect the action Of this Governments;
and, secondly, how they ought to be expected
to affect the action Of Great Britain.
The reasons are satisfactory to this Govern
nsent, SO far as Capt;,in Wilkes is concerned
Ii could not dcsire that the San Jacinto, her
officers and crew, Should be exposed to dan
ger and loss by weakening their number to de-
tacia q prize crcw TO go on board the Trent.
Still less could it eis:iyow the humane motive
CT PR venting incunscnicncre, losses, aud per
l."Fs disasters, to the several hundred inno-
ctnt l:a5sergcrs found on hoard the prize YES
ground terq questioning the fact that these rca-
SONS, though apparently homogeneous, did
operate in tic niliu of Captain Wilkes AMI de-
tc;1niEcd him to release thu Trent. Human
actions generally proceed npon mingled, and
sometimes conflicting, motives. 1ic Measured
tie sacrifices Which this decision would cost
II nlanlfcstly, however, did not occur to him
that beyond the sacrifice Of the private intrr-
csts (as lie calls ti,cEa Of his Officers and crew
there might also M,ssibly bea sacrifice even of
t1ae ol,ie' and public of,jeet of l.is cs1.l,z.,
namely, tie right OF his Government to the
custody and disposition Of the captured per
sons. This Government cannot cc1lstlrc him
for this oversight, It conftsscs that the whole
subject came unforsccH upon the Government,
as doubtless it did upon lin. It's present con
ylction5 on the aroint in question are tile rs,-
suit Of deliberate examination and deduction
now made. and not Of any impressions pre-
yiously formed.
Ncyt rLc1ess, tho question now Is, not
whether Captain Wilkes is justified to lis Gov
cr1,ment in what hr did, hut What is the pres
ent y1cw Of the Government rs to the effect of
what he has done. Assuming now, for ar:.u-
nclt's sake Only, that the release Of the Trent,
Il voluntary, involved I waiver Of the claim OF
tlt Government to hold the captured persons,
The United States could in that case have no
hesitation i'll saying that the act which has
titus already lccD approved by tho Govern
mcnt must be allowed 10 draw its legal con5e-
quencc after it. It is Of the very nature Of d
gift or a charity that the gIyer cannot, after
or modify its benefits.
Nca thus brought directly to the ques-
ton whether We are entitled to regard the
release Of tic Trent as Involuntary, or whether
VIC are obliged to consider that it WAS volun-
tary- Clearly the r. lease would lave been
involuntary had it hcen made solely upon tue
first ground assigned fer i. by Capt. Wilkes,
namely, {. want of 4 eut1icit1,t force to send
TIC Prize vessel into port for adjudication
It is not the duty Of 4 captor to hazard
his cwn vessel III order to secure u Judicial
examination to 1h. cap:uEtdssCarty. No large
prize crew, However, is legally necessary, for it
is tic duty Of the captured party to :.eqlicsce
aEd 70 Willingly bclurc the tribunal to whose
jurisdiction itaprta's. I: tic captured p.lrtJ
indic:ltc purposes to employ mt ans Of resis-
tal1c.: w1icl; the captor cannot With probable
safety to himself cveEe'Ine, lie may properly
ltayc ,llc vessel to 60 forward; ana neither
size Eor the Stale shs represents ever after
WARDS justly object that the csaptor deprived
ler Of Tic judic!:t re1iitay TO which sac was
entitled.
But the slcond reason assigned By Captain
Wilkes for releasing ttc Trent differs from the
first. At best, therefore, it must bc hcId tll.t
Capt. " likes, as he explains himself, actn,l
tTcm combined sentiments Of prudence ssld
generosity, ard so tlH>t tho release OF the prize
ycsscl was not strictly ncccssar; OF inyoIun~
tary.
Secondly. How OIL ght VIC to expect these
explanations by Capt. Wilkes of lis reasons
tho action Of the British Governments
The observation upon this point which first
oecurs is, that Capt. Nilkess explanations
we're Eot made to HE authorities Of the cAp-
turcd vtsscl. II made known to them they
might have approved and taken the release,
upon the condition ct waving judicial inyes
tis:ticn of tic whole transaction, or they
might have refused to accept the release upol
thar condition.
But the casc is one not with them, but with
the British Government. If We c1aisn th1t
Great Britain ought not to insist that judici;ll
trial has been lost because VIC yolunt trily re-
leased the Off nlin. vessel ont Of considers
tioE for her Innocent passengers, do not sce
how she is to be bound to acquiesce in the de-
cisloD which WAS thus made BY us without