Bedford inquirer. [volume] (Bedford, Pa.) 1857-1884, 1862-01-10

ps9ce OF nation depend on the accidents OIL
a merely personal and peOnniary litigaton.-
Moreover, when the Judgment of the prize
court upon the lawfulDpss of the capture of
the vessel is rendered, it really concludes moth
| ing, aud binds neither the beIiigerent State
nor the neutral upon the great question Of the
disposition TO be made of the captured ccn-
trabaDd persons. Thas question ia stiIi to be
really determined If at all, by diplomatio ar
rgngement OF BY war.
Que may well express bis surprise when
told that the law oF nations has furnished no
more reasonable, practicable, aud perfect mode
than tais of determining questions Of snch grave
import between sovereign powers. The regret
VIC may feel on the occasion is nevertheless
modified by the reflection that the difficulty isl
uot altogether anomalous. Similar and equal
deficiencies are found in every system Of mu,
nicipal law, especially in the system which ex>
lists 10 the greater portions of Great Britain
and the United States The title to personal
property can hardly ever be received by
7 Court Without resaftiug to the fiction that the
claimant has lost aud che possessog has foead
it, aud the title to real estate is disputed bg
! real litigants under the names of ina agihaTy
/ persons. Il must DO confessed, bowever, that
! while ell aggricRed nations demand, and al
/ impartial onss ceneede, the need OF sosno form
| of judicial process in determining the charae-
ters Of contrabaud persons, 90 other form than
tho illogical and elrcuilous one thus described
exists, nor has auy other yet been suggested
Practically, therefore, ths choice il 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 ths prize vessel
4 Very grave objections arise against such a
course. Too csptor is armed, the nuatral Is
unsrmed. The captor is interested, prejndi
ced, sud perhaps violent; the neutral, if truly
neutral, IS disiotereatel, sub lued and helpless
/ The tribunal IL irresponsible, while It's jGdge-
,neut il carried into instant execution. The
captured party Is compelled TO submit, though
bound by no legal, moral, or treaty obligation
/ to ecquesce. Rsplratiou is distant and pro-
blemsticsl. aud depends at last on the justice.
magnaninls9, orwaskness of the State in whose
! behalf aud By whose authority the capture was
made. Oct of these disputes reprissls and
wars necessarily arise, and these nre so Fl squsEt
aud destructive that il may we'll be donbted
/ whether th:s form OF remedy is not greater
/ social cyl than all that coad fDllew if tae bell
| igegens light Of search were universally res
nouneea aud abolished forever. But carry the
/ ease enc step farther. What if the State that
has made the capture uureasonably refnss 10
4 hear the complaint of the neutfal or to redress
it! IN that Gaze, the very act Of capture
Woald be az act OF war--of war begun With
out notioo, aud possibly entirely without prov
oeatiou.
think all unprejudiced minds will agree
| thar, Imperfect as ihe existing Judicial remedy
may ba supposed to be, il would be, as n GENE
raj practice, better 70 fellow il than to adopt
| the summary one Of leaving the decision with
the eaptor, and relying upon diplomatic debates
to review his decision. Practically, it is a
question Of choice between law, with its inpsr-
lcctons aud delays, asd war, vita its evils and
desolations. Nor is it ever to be forgotten
that neutrality, honestly ana Justly preserved,
! Is always the haFbiager Of poses, aud therefore
! is tue oomuon interest of naiioos, which is on
! ly saying that 1t is the interess Of humanity
ITSELF.
AT the same time it is rot to be denied that
il may sometimes happen that tbe Judicial rene
dy will become impossible, es by The ship.wreck
OF the prize vessel or other circumstances
which excuse tho captor from seneing or TAX
ing her into port Cor coniscation. In such
case the right of the captor to tie custody of
the captured persons and to dispose of them, if
they arc really ooEtrabaad, so as 10 defeat
their unlawful purposes, capnnt reasoSsbly be
deaied. What rule shall be applied in such
csse2 Clearly, The captoT ought 10 be required
70 show that the failure Of the judicial remedy
results from circumstances beyond his control,
and without bis fault. Otherwise he would be
allowed to derive advantage from 9rongful
set of bis own.
In the present case, Capt. Wilkes, after cap
turing The con:rsbaad persons and making prize
of tne Trent in what seems to US perfectly
lawful manner, instead of sending her into
port, released her from the capture, aud per-
miited her to proceed with her whole cargo on
her voyage. He thus elfactually prevented the
jndioial examination which Otherwise might
have occurred.
If nov, the capture Of tho.contraband per-
soDs and tho capture Of the contrabapd vessel
are TO be regarded, uot as two separate or dis
tinct transactions under the law cf nations, but
IS one transaction, one capture only, then II
follows that the capture in this case was left
lund nished or abandoned. Whether tha Unit
tod States have right ;oretaia the chief pub
lie benefits of it, namely the custody OF ,ha
captnree persons on proving them to be ccntra-
baad, will depend upon the preliminary ques-
tlon whether tho leaving Of the transaction IN
! finished was necessary, or whether it was ua-
necessary and therefore voluntary. If it was
necessary, Great British, ss We suppose, must
waive the detect, and the consequent failure Of
the Judicial remedy. Ga the other hand, it is
: not seen how the United States can insist up
on her waiver of that judicial remedy, if the
defect Of the capture resulted from az act Of
Capt Wilkes, which would BE- fault on their
own side,