The weekly north Iowa times. [volume] (McGregor, Iowa) 1857-1867, 1862-01-08
WHOLE NO. 273.

rendered, III really Conciuues uo'uinS, anu
binds neither the belligeren. State nor the
neutral upon the great question Of the dis
position to be made of the captured con-
trabrand persons. The question is still to
be really determined, if at all, by diploma
tic arrangement or by war.
One may we'll express his surprise when
told that the law Of nations has furnished
no more reasonable, practicable and perfect
mode than this of determining questions of
such grave import between sovereign pow
crs. The regret We may feel on the occa-
sion is nevertheless modified by the rehec-
ton 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 Britain and
the United States. The title to personal!
property can hardly ever be resolved by a
court without resort,ng to the fiction that
the claimant has lost and the possesSor had
found it, and the title to the real estate is
disputed BY real litigants under the names
of imaginary persons. 1t must be con-
fesscd. however, that while all aggrieved ma
tions demand, and all impartial ones con-
cede, the need Of some form Of judicial
process in determining the characters of
contraband persons, no other form than the
| illogical and circuitous one thus described
exists, nor has any other yet been suggest
cd. Practically, therefore, the choice is
between that judicial remedy or no julicial
remedy whatever.
If there be no judicial remedy, the re-
suit is that the question must not be deter
mined by the captor himself, on the deck
of the prize vessel. Very grav: objections
arise against such course. The captor is
armed the neutral is unarm9d. The cap
tor is interested, prejudiced, and perhaps
di>intercsted, subducd, and helpless. The
tribunal is irresponsible, while its judg
ment is carried into instant execution
The captured party is compelled to submit
though bound by no legal, moral. or treaty
obligation to acquesce. Reparation is dis
tant and predetermined, and depends at last
on the justice, magnaninity, or weakness
of the State in whose behalf and by whose
authority the capture was made. Out Of
these disputes reprisals and wars nccessa
riy arise, and these are so frequent and
destructive that it may we'll be doubted
whether this form Of remedy is not great
er social evil than all thai could fellow if
the belligerent right Of search were univer
sally renounced and abolished forever
But carry the case one step farther. What
if the State that has made the capture un-
reasonably refuse to hear the complaint Of
the neutral or to redress it? In that case
the very act Of capture would be an act of
war-war begun without notice, and posi-
bly, entirely without provocation.
| I think all unprcjudiced minds will agree
that imperfect as the existing judicial re-
nedy may be supposed to be, it would be,
as general practice, better to follow it than
to adopt the summary one of leaving the
decision with the captor, and relying upon
diplomatic debates to review his decision. -
Practically, is a question of choice between
law, with its i,nperfections and delays, and
war, with its evils and desolatons. Nor is
it ever to be forgotten that neutrality, hon
testly and justly preserved, IS always the
harbinger Of peace, and therefore is the
common interest 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 ju-
dicial 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 case the right of
the iaptor to the custody Of the captured
pesonS and to dispose Of them, i; they are
really contraband, so as to defeat their uD.
lawful purposes, cannot reasonably be de-
MED. What rule shall be applied in such .
case? Cl>arly, the captor ought to be re-
qured to show that the failure Of the ju-
diciai remedy results from circumstances 5
beyond his control, and without his fault
Otherwise, he would be allowed to derive
advantage from wrongful act Of his own.
In the present case, Capt. Wilkes, after
capturing the contrabrand persons and
making prize Of the Trent in what seems
to 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
lie thus effectualy prevented the judicial
examination 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 sepac.
ate or distinct transactions under the law
| of nations, but as one Transaction, one
capture only, then it follows that the cap
turc in this case was left unfinished, or was
abandoned. Whether the U. S. have a
tight to retain the chief public benefits of
it, namely: the custody Of the captured
persons on proving them to be contraband,
will depend upon the preliminary question
whether the leaving Of the transaction un-
finished was necessary, or whether it was
unnecessary, and therefore voluntary. If
it was necessary, Great Britain, as we sup.
pose, must Of course waive the defect, and
the consequent failure Of the judicial rene
dy. On the other hand, it is not seen how
the U. S. 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 fault on their own side.
Capt. Wilkes has presented to this gov.
eminent his reasons for releasing the Trent.
II forborc to seize her" he says, 'in con-
sequence Of my being SO reduced in officers
and crew, and the arrangement it would
cause innocent persons, there being large
number Of passengers who would have
been put to great loss and inconvenience,
as we'll as disappointment, from the inter.
ruption it would have caused them in not
being able to join the steamer from St. Tho
mas to Europe. therefore concluded to
sacrifice the interest Of the officers and
crew in the prize, and suffered her to pro.
ceed after the detention necessary to effect
the transfer Of those Commissioners, con.
Sidering had obtained the important end
| had in view, and which affected the in
terest Of our country and interrupted the
action Of that of the Confederates."
shall consider, first, how these reasons
| ought to affect the action Of this govern.
ment; and, secondly, how they ought to
be expected to affect the action Of Great
| Britain.
The rcassns are satisfactory to this gov
ernment, so far as Capt Wilkes is concern
ed. 1t could not desire that the San ia.