Year: 1862

tiers OF contraband persons, no other form thai
the Illogical and circutous one thus described
| exists, nor has any other yet been suggested


Practically, therefore, the choice is between


that judicial Lremedy or no judicial remedy


whatever.


If there be no judicial remedy, the result il


that the question must be determined by the


captor himself, on the deck of the prize vessel


Very grave objections arise against such q


course. The captor is armed the neutral is un


armed. The captor is interested, prejldiced


and perhaps violent the neutral, is truly neu
tral, is dsenterested subdued, 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 acquieSce. Reparation is distant and pro,
blematical, and depends at last on the justice,
magRanimty, or weakness of the State in whose
behalf and by whose authority the pture was
made. Out Of those disputes reprisals and wars
necess arly arise, and these are so frequent and
destructive that it may well be doubted wheth-
er this form of remedy is not greater social
evil than all that coHId follow if tho beIIger.
ent right of search were universally rencunced
and abolished forever But carry the case one
step farther. What if the State that has made
the capture unreasonable 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-of war begun without no
tice, and possibly entirely without provoca-
tion.


| think all uDprejudiced minds will agree
that, imperfec. as the existing judicial remedy
may be supposed to be, it would be, as gene
raj practice, better TO follow it than 10 adopt
the summary one Of leaving the decision With
the captor, and relying upon the diplomatic
debates to review his decision. Practically, II
is a question of choice between law, with It's
imperfections and delays, and war, with its
evils and desolations Nor is il ever 10 be
forgotten that neutrality, honestly and Justly
preserved, is always the harborlng OF pesC-,
and therefore, is the common interest Of ma
tions which Is only saying that It IS the IN
terests of humanity itself


At the same time it is not 10 be denied
that it may sometimes happen that the Judi
cial remedy will become inpossibi as by the
shipwreck Of the prize vessel, or other cir.
cumstances which excuse the csptor from send
ing or taking her into port for coDfscsron -
In such case the right o: the captor 10 the
custody of the captured persons ana to dispose
of them, if they ere really coutraband, So e.
to defeat their unlawful purposes. cannot reas-
onaby be denied. What rule shall be applied
10 such case Clearly, the captor ought
TO be required to show that the failure of the
Judicial remedy results from circumstances be-
yond bis control, and without fault. Other
wise he would be allowed to derive advantage
from a 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 US & per
fectly 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 etfectnsly prevented
the judicial examination which otherwise might
have occurred.


II now the capture Of the contraband per-
sons and the capture of the e8ntraband vessel
are to be regarded, not as two separate or dis
tinct transactions uBSer the law Of nations but
as one transaction, one capture only, then it
follows that the capture in this case was left
unfinished or abandoned Whether the United
States have q right TO retain the chief public
benefits Of it, naturally the custody of the cap
tured persons on proving them to be contra
band, will depend upon the preliminary ques-
ton whether the leaving of the transaction IN
fushed was necessary, or whether it vas un-
necessary and therefore voluntary If it was
necessary, Great Britain, as We suppose, must
waive the defect, ard 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, if the de-
feet of the capture resulted from an act Of
Capt Wilkes, which would be fault ou their
own side


Capt Wilkes has presented to this Govern.
ment his reasons for releasing the Trent 1"
forebore TO seize her." he says, 10 consequences
of my being so reduced in officers and crew.
and the arrangement it would cause innocent
persons there being large number of passen
gers who would have been put to great loss and
inconvenience, as well as disappointment, from
the interruption would have caused them ia
not being ahle to Join the steamer from St
Thomas to Europe therefore concluded to
sacrifice the interests OF NV officers and crew 10
he prize, and suffered her TO proceed after the
detention necessary TO effect the transfer OF
those Commissioners, considering had obtain
ed the important end I had in view and which
affected the 10 terests of our country and inter
rupted the action Of that Of the Confede-
rates"


/ shsllconsider frs, how these reasons ought
to affect the action of this Government and,
secondly. how they ought to be expected to
affect the action or Great Britain


The reasons are satisfactory 10 this Govern
ment SO far as Capt. Wilkes is concerned 1t
could not desire that the San Jacinto, her Of
icers and crew, should be exposed to danger
and loss By weakening their number TO detach
8 prize crew to go on board the Trent Still
less could it dissvoR the humane motive of
preventing ineonEeAienees. losses, and perhaps
disasters, to The several hundred innocent pas.
sengers found on board the prize vessel. Nor