Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1862-01-08

8 be confessed, however, that while all sggrieved nation
d demand, and ali impn tial ones concede, the need Of som'
= form of Judicial process in determining the character o
cOntraband persons, no other form than the illogical AM
circuitous one thus described exists nor has any othe
4 yet teen suggested. Practically, therefore, thu choice il
4 between that judicial remedy or no judicial remedy wnst
8 ever. II there be no judicial remedy, the result is tina
i the question must be determined by the captor himself
on the deck Of the prize vessel Very grave objection
8 arise against such a course. The captor is armed; thu
neutral is unaTmed. The Captor is interested, predju
e diced, and perhaps violent the neutral, il truly neutral
= is disinterested. subdutd and helpless The tribunal i
irresponsible, while its Judgment is carried into instant
execution. The captured party is compelled 10 submit
{ though bound by no legal, moral or treaty obligation t
! acquiesce. Reparation is distant and predetermined, and
depends at last on the justice and magnanimity or weak
ness of the State in whose behalf and by whose authority
the capture was made.
Out Of the disputes reprisals and wars necessarily arise
and these are 50 frequent and destructive that it may vel
be doubted whether this form of remedy IL not a greatel
social evil than all that could follow if the beligereni
right Of search was universally renowned and abolished
! forever. But carry the case one step farther. What If
the State that has ma 10 the capture unreasOnably refuse
10 hear the complaint of the neutral or to redress it In
that case the very act Of capture would be an act Of war,
of war begun without notice and possibly without pro
vocation. think all unpreiudiced minds VIII agree that,
impe feet as the existing judicial remedy may be supposed
TO be, il would be, as a 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 ms decision Practically, itis a quesuono OF choice
between law with IT'S impertections and delays, and war
with its evils and desc atiOns. Nor is it ever TO be forgot
ten that neutrality, honestly and jU lily preserved, is al
ways the harbtnger Of peace, and therefore, is the com
mon interes of nations. Which is only saving that il is
the interest Of humanity NelE
AT the same time it is not TO be denied that it NAV some
times happen, that the Judicial remedy viii become i'm
possible, as by the shipwreck Of the prize vessel or other
circumstances which excuse the captor from sending or
taxing her into port for confseation. In such . case the
right Of the captOr 70 the custody Of the captured persons
and 70 dispose of them if they are real y contraband, so
as TO defe { their unlawful purposes, cannot reasonably be
denied. What rule shall be applied in such case Clearly
the captOr ought TO be required to show that the failure
Of the judicial remedy results from circumstances beyond
his control and without his fault, otherwise be would be
3 aH--aa - l.-.~. -.#. g.. - .s - TH
own.
In the present case, Capt Wilkes after capturing the
conusband persons and making prize Of the Trent, in
what seems to US a perfectly lawful manner, instead Of
sending her into port, ceased her from the capture and
permitted her 10 proceed with her whole cargo upon her
voyage. He thus cffectually prevented the Judicial c.
animation which might otherwise have occurred.
Now, the capture Of the contraband persons and the
capture Of the cOHtraband vessel are to be regarded, not
as two separable or distinct transactions under the law Of
nations, but a. one transaction, one capture only; then it
follows that the capture in this case was lct unfinished or
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 contra
band, will depend upon the preliminary question, wheth-
er the leaving Of the transaction unfinished was neees-
sary, and therefore voluntary. II it was necessary,
Great Britain, as we suppose, must Of course, waive the
defect and the consequent failure OF the judicial remedy.
On the other hand, il is not seen how the United States
can insist upon her waiver Of that judicial remedy, if the
defect of the capture resulted from al act Of Capt. Wilkes,
which would be a fault on their own side.
Capt. Wilkes has presented to this government his
reasons for releasing the Trent. - forebore 70 seize
] her,' ne SAYS, IN consequences OF my beng 80 reduced IN
officers and crew. and this arrangement would cause in
noeent persons to suffer, there being a large number Of
passengers who would have been put to great 10 8 and
Inconvenience, as well as disappointment from the inter
rUpt0n il would cause them, in not being able to Join
the steamer from st. Thomas to Europe. ], therefore,
I concluded TO sacrifice the interest Of my officers and crew
in the prize, and suffer TO proceed, after the detention
necessary TO effect the transfer of those commissions, CON
sidering l had obtained the important end l had in view
and which effected the interest Of our country, and inter
rupted the action Of thst Of the Confederates"
1 shall consider first how these reasons ought to affect
the action of this government and secondly how they
| ought to bs expected to affect the action Of Great Britain.
The reasons are satisfactory to this government, so far
as Capt Wilkes is concerned it could not desire that the
San Jacint0, her officers and crew sheuld be exposed to
danger and loss by weakening their number 10 detach a
prize crew TO 20 on board the Trent Still less could il
disayow tie humane motive of preventing inconvenient
losses and perhaps disasters to the several hundred inno-
cent passengers found on board the prize vessel Nor
could this government perceive any ground for question
ing the fact that these reasons, though apparently incon-
gruOus, did operate Ia the mind Of Capt Wilkes and de-
termined him to release the Trent. Human action gen
orally proceeds from mingled and sometimes conflicting
motives. He measured the sacrifices which his decision
would cost II manitestly, however, did not occur 10 him
that beyond the sacrifice Of the private interests (as be
calls them Of his officers and crew, there might, also,
possibly be a sacrifice oven Of the chief and public object
Of his capture, namely The right Of his government to
the custody and disposition Of the captured persons
This government cannot censure him for this oversight
II coniesses that the whole subject came UNFORESEEN upon
the government. as doubtless il dill upon him. Its present
convictions on the point in question are, the result Of de-
hberate examination and deduction now made, and not
Of any impressions previously formed
Nevertheless, the question now is, not whether Capt.
Wilkstis justified 50 his government in what he did, but
what is the present view OF the government as to the
effect Of what he has doual Assuming now, for argu-
ment's sake only, that the release of the Trent, if volun-
tary, involved he wayer Of the claim Of the government
to hold the captured persons the United States could, ia
that ease, have no hesitation in saying that the act which
has thus already been approved by the government
must be ellOwed 10 draw its legal consequence after IT,
It is Of the very nature Of a gift or a charity, that the
girer cannot, sffer the exercise 81 his beaeyoieBee is
pat recall or modify IT. benehta
We are thus brought directly tG the question. whether
we are entitled & regard the release Of the Trent as in
voluntary. or whether we are obliged to consider that il
is voluntary Clearly the release would have been
made solely upon the first ground assigned for it by Capt.
Wilkes, namely Il want Of sufficient force 20 send the
prize vessel into pO { for adjudication. II is not the duty
Of a captain TO hazard his own vessel in order to secure
q judicial examination to the captured party. No large
prize crew however, Is Legally necessary, for It is he
duty OF the captured party TO ae4eiesce ana go VI linsly
before the tribunal 70 whose Jurisdiction it appeals If
the captured party indicate purposes 70 employ means OF
resistance which the eaptor cannot with probable safety
70 himself overcome, be may properly leave the vessel 70
60 forward, and neither he nor the S ate he represents
can ever aftervard Justly object that the oaptor deprived
her Of the judicial remedy to which she was entitled.
For the second reason assigned by Captain Wilkes for
releasing the Trent differs from the first At best, there
fore, it must be held that Capt Wilkes, as he explains him
self, acted from combined sentiments Of prudence and
gene osity, and SO that the release Of the prize vessel mas
not strictly necessary or Involuntary.
Secondly-I1w ought We to expect these explanations
by Capt Wilkes Of bis reasons for leaving the capture
Incomplete, TO affect the action Of the British govern
ment z
The observation upon this p int which first occurs, is
that Captain Wilses explanations were not made to the
authorities Of the captured vessel II made known 20
them they might have approved and tuken the release
upon the condition OF waving a judicial investigation of
the whole transaction, or they might have refus.d to ae-
cept the release upon that condition.
But the case is mot one with them, but with the British
government. II we claim that Crest Britain ought no to
insist that a judicial trial has been lost because we voun-
tarly released the offending vt ssel out of consideration
for her innocent passengers, I do not SEE how she is bound
70 aequies e in the DECISION that was thus made by US,
without necessity on our part, and without knowledge Of
conditions or consent on her part The question between
Great Britain and ourselves, thus stated, would be a
question not Of right or of law, but Of favor conceded by
her 10 as in return for favOrs shown by IL 10 her. of the
value Of which fsvOrs on both sides we ourselves shall be
the Judge. OF course the United States csz!d have no
thought Of IA sing such a question in any case.
trust that / have shown to the satisfaction OF the
British government by a very simple and natural state
ment Of the taets and analysis Of the law applicab e to
them, that this government has neither metitated nor
practiced nor approved any deliberate wrong in the tFGng-
contrary that what has happened has been sinpy an IN
advertency, consisting in a departure by the naval officer,
free from any wrongful motive, from a rule uncertainty
established and probably by the several parties concerned
either imperfectly understood or entirely unknown. For
this error the British government has the right 70 expect
the same repatriation that we az an independent State
should expect from Great Bii-ain, or from any other
friendly nation in a similar case.
IhaTe not been unaware that in examining this question,
Ihave fallen into an argument for what seems to be the
British side Off against my own country. But ! am re-
heyed from all embarrassment on that subject I had
hardly fsIlen into that line Of argument when / discovered
/ that I was renlIv defending and maintaining not an ex.
elusively British interest, but an old, hOnored and cher
ished American cause, not upon British authorities, but
upon principles that constitute "A large portion OF the dis
tincive policy by which the United States have developed
the resources Of a continent AMI thus becoming a cOnsid-
cradle maritime power, have won the respect and csnf-
dence Ofmany nations
These principles were laid down for Ms in 1891 by
James Madison, when Secretary Of State, in the admins
fration Of Thomas Jefferson, in instructions given to
james Monroe, our minister 10 England. Although the
case before him concerned a description Of persons differ
l eut from those who are incidentally the subjects OF the
present discussion, 10 ground lac assumed then WAS the
same j now occupy, and the arguments BY whish he
sustained himself upon il, have been an inspiration to me
in preparing this reply.
whenever. he says, property found in a neutral
Vessel is supposed % be liable on any ground to capture
| and condemnation. the rule in all cases IS that the ques-
ton shall not be decided by tie eaPtori but be carried
before a legal tribunal, where a regular trial may be had
snd where the captor himself is liable to damages for AN
abuse Of his power. tan It be reasonable, then, or just,
that a beligerent commander, who is thus restricted ana
thus responsible IL q case Of mere proper y OF trlVhI
amount. should be permitted, without recurring to any