Year: 1862

The third question is; whether Capt. WILKES
exercised the right Of search in lawful ana
proper manner


If any doubt hung over this point, as the
case was presented in the statement OF 1t
adopted by the British Government, think
il must have already passed away before the
notifications of tina; statement which have
already submitted.


proceed to the fourth inquiry, namely
Having found the suspected contraband of war
on board the Trent, had Captain Wilkes the
right to capture the same?


Such capture is the chief If not the only
recognised object of the permitted violation
and search. The principle of the law is that
the beigerent exposed to danger may prevent
the contraband persons or things from apply
ing themselves or being applied to the hostile
uses or purposes designed The law is 80 very
liberal in this respect that when contraband is
found on board a neutral vessel, not only ia
the contraband forfeited, but the vessel, which
is the vehicle of its passage or transportation,
being tainted, also becomes contraband, and is
subjected to capture and confscation.


Only the fifth question remains, namely Did
Captain Wilkes exercise the right of capturing
the contraband in conformity with the law OF
nations?


II is Just here that the difficulties of the case
begin. What is the manner which the law of
nations prescribes for disposng of the CONTRA
band when you have found and seized it on
board of the neutral vessel Z The y
woald be easily found if the question
what you shall do with the contraband vessel.
You must take or send her into convenient
port, and subject her to judicial prosecution
here in admiralty which will try and decide
'he ~pestions of belligerency, neutrality, con-
uaoand I'D capture. So, again, you would
promptly hno-he same answer if the question
were, What is the, manner of proceeding pre-
srribed by the law of .-atioas in regard to the
sbntrabaud if it be property OF things or ma
terial of pecuniary value ?


But the question here concerns the mode of
procedure in regard, not to the vessel that
was carrying the contraband nor yet to con-
traband things which worked the forfeiture of
the vessel, but to contraband persons.


The books of law are dumb. Yet the ques-
tion is as important as it is difficult. First,
the belligerent captor has a right to prevent
the contraband officer, soldier, sailor, minister,
messenger, or courier, from proceeding in his
unlawful voyage and reaching the destined
scene of his injurious service. But, on the
other hand, the person captured may be inno-
tcent-that is, he may not be contraband He
therefore, has right to fair trial Of the ac-
cusation against him. The neutral state that
has taken him under its flag is bound to pro-
tect him under its flag is bound to protect him
If he is not contraband, and is, therefore, en-
titled to be satisfied upon that important ques-
tion. The faith of that State is pledged TO
his safety, if innocent, its Justice is pledged
to his surrender if he is really contraband.-
Here conflicting claims, involving personal
liberty, life, honor, and duty. Here are con-
hicting national claims, involving warfare,
safety, honor, and capture. They require a
tribunal and trial. The captors and the cap
tured are equals; the neutral and belligerept
State are equals.


While the law authorities were found silent,
it was suggested at an early day by this Gov
ernment that you should take the captured
persons into convenient port and institute
judicial proceedings there to try the contro-
versy. But only courts of admiralty have ju-
riadiction in maritime cases, and these courts
have formulas TO try only claims to contraband
chattels, but none to try claims concerning
contraband persons. The courts can entertain
no proceedings and render no Judgment in fa-
vor of or against the alleged contrabaud men.


II was replied all this is true; but you can
reach in those courts decision which will have
the moral weight of a judicial one by a cir
cuitous proceeding. Convey the suspected
vessel, into port, and try there the question
whether the vessel is contraband. You can
prove it to be SO by proving the suspected men
to be contraband, and the court must then de-
termine the vessel to be contraband. If the
men are not contraband the vessel will escape
condemnation. Still, there is no judgment for
or against the captured persons. But it was
assumed that there would result from the de-
termination of the court concerning vessel
legal certainty concerning the character of the
men.


This course of proceeding seemed open to
many obiectiuns. 1t elevates the incidental
inferior private interest into the proper place
of the main paramount public one, and possi-
bly, it may make the fortunes, the safety, or the
existence of a nation, depend on the accidents
of merely personal and pecuniary litigation.
Moreover, when the Judgment of the prize
court upon the lawfnlness of the capture of
the vessel is rendered, it really concludes no
thing, and binds neither the belligerent State
nor the neutral upon the great question of the
disposition to be made of the captured contra-
band persons. That question is still to be
really determined, if at all, by diplomatic ar
rangement or by war.


One may well express his surprise when told
that the law of nations has furnished no more
reasonable practical, and perfect mode than
this Of determining questions of such grave
import between sovereign powers. The regret
we may feel on the occasion is nevertheless
modified by the reflection that the difficulty is
not altogether anomalous. Similar and equal
deficiencies are found in every system of mu-
ncipal law, especially in the system which ex-
lists in the greater portions OF Great Britain and
the United States. The title to personal prop
erty can hardly ever be resolved by court
without resortng to the fiction that the claip<~
ant has lost and the possesor has found X, and
the title TO real estate is disputed lyy real iti-
giants under the names OF imaginary sers0us
1t must be confessed, however, that 8hiie
| ar,,.vinvad naffono launanI and fa.aarttaf