Year: 1862


it may sometimes happen that the Judicial


remedy Will become impossible, as by ship


wreck of the prize vessel, or other circumstan-


ces which excuse the captor from sending or
| taking her into port for confscation. In such


a case the right of the captor to the custody


OF the captured persons and the right to dis


pose of them, if they are really contraband, so
| as to defeat their unlawful purposes, cannot
| reasonably be denied. What rule shall be ap-


Piled in such case 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 advantage from q 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 per-
| Iectly lawful manner, instead of sending her
| into port. released her from the capture, and
| permitted her to proceed with her whole cargo


on her voyage. He thus effectually prevented
| the judicifl examination which otherwise
| might have occurred.


If now, the capture of the contraband per-
sons and the capture of the contraband vessel
are to be regarded, not as two separate or dis
! tinct transactions under the law of nations
but as one transaction, one capture only, then
it follows that the capture in this case left
unfinished or abandoned. Whether the United
States have right to retain the chief public
benefits of it, namely the custody of the cap
| tured persons on proving them to be contra
| band. will depend upon the preliminary ques-
tion whether the leaving of the transaction
unfinished was necessary, or whether it was
unnecessary and therefore voluntary. If it


was necessary, Great Britain, as we suppose,


must waive the defect, and the consequent
failure OF the judicial remedy. On the other
hand, it is not seen how the United States can
insist upon her waiver of that judicial remedy
II the defect OF the capture resulted from an
act of Capt. Wilkes, which would be a fault
on their own side.


Capt. w likes has presented to this Govern
ment his reasons for releasing tho Trent. 81
forbore TO seize her, he says, s'ir conse-
"quence of my being so reduced in officers
sand crew, and the arrangement it would
GO cause innocent persons, there being large
&c number OF passengers who would have been
(" put to great loss and inconvenience, as well
as disappointment, from the interruption it
| CO would have caused them in not being able
&C to join the steamer from St. Thomas TO
sc Eurepe." therefore concluded to sacrifice
&c the interests of my officers and crew in the
"prizc, and suffered her to proceed after the
detention necessary to effect the transfer of
&C those Commissioners, considering had Oh
&c tained the important end had in view, and
&c which affected the interests of our country
Sc and interrupted the action of that of the
| &c Confederates.''


/ shall consider first. how these reasons
ought to affect the action of this Government;
and, secondly, how they ought to be expected
to affect che action of Great Britain.


The reasons are satisfactory to this Govern
ment, so far Captain Wilkes is concerned.
1t could not desire that the San Jacinto, her
officers and crew, should be exposed to danger
and loss by weakning their number to detach
a prize crew to 60 on board the Trent. Sill


less could ii disavow the humane motive of
preventing Inconvenience, losses land perhaps
disasters, to the several hundred innocent
passengers found on board the prize vessel.
Nor could this Government perceive any
ground for questioning the fact that these rea-
sons, though apparently congruous did operate
in the mind of Captain Wilkes and determine
him to release the Trent. Human actions
generally proceed upon mingled, and some
times conflicting motives. He measured the
sacrifices which this decision would cost. 1t
manifestly, however, did not occur to him
that beyond the sacrifice of the private inter-
ests Gas be calls them) of his officers and crew,
there might also possibly be sacrifice even of
the chief and public object of his capture
namely, the right of his Government to the
custody and disposition of the captured per-
sons. This government cannot censure him
for this oversight. 1t confesses that the whole
subject came unforeseen upon the Government


as doubtless it did upon him. Its present
convictions on the point in question are the
result of deliberate examination and deduc-
tion now made, and not of any impressions
previously formed.


Nevertheless, the question now is mot wheth-
er Capt. Wilkes is justified to his government
in what he did, but what is the present view
OF the government as to the effect of what he
has done. Assuming now, for arguments
sake only, that the release of the Trent, il
voluntary, involved waiver of the claim of
the government to hold the captured persons,
the United States could in that case have no
hesitation in saying that the act which has
thus already been approved by the government
must be allowed to draw IFS legal consequence
after it. 1t is of the very nature of gift or
a charity that the giver cannot, after the exer-
else of his benevolence is past,I ecall or modify
its benefits.


We are thus brought directly to the question
whether we are entitled to regard the release
of the Trent as involuntary, or whether wc
are obliged to consider that it was voluntary.
Clearly the release would have been involun-
tary had 1t been made solely upon the first
ground assigned for it by Capt. Wllkes,na
ly, want of sufficient force TO send the
prize vessel into port for adjudication. 1t is
not the duty of caPt0r to hazard his own
vessel in order to secure Judicial examina-
tion to the captured party. No largo prize
crew, however, is legally necessary, for it is
the duty Of the captured party to acquiesce
and go willingly before the tribunal to whose
jurisdiction it appeals. Ii the captured party
indicate purposes to employ means of resis-
tance which the captor cannot with probable
safety to himself overcome, he may properly
leave the vessel to go forward; and neither
she nor the State she represents can ever after
wards justly object that the capture deprived
her of the judicial remedy TO which she was
entitled.


But the second reason assigned by Captain
Wilkes tor releasing the Trent differs from the
first. At best, therefore, it must be held
that Capt. Wilkes. as he explains himself,