Year: 1862

| 'cFioea oy the law OF nations in regard to the


contraband it it be property or things Of mate


rial or pecuniary value {?


But the question here concerns the M ode OF
procedure in regard, not to the vessel that was
| carrying the contraband, nor yet to contraband
| Things which worked the forfeiture of the ves-


sci, but to contraband persons


! Ihe books of law are dumb Yet the ques-


ton is as important as 1t is difficult. First,
| the beiligerent coptor has a right to prevent


the contraband officer, soldier, sailor, minis
ter, or courier from proceeding in his unlaw-


fui voyage and reaching the destined scene of
| ms injurious service. But on the other hand, g,


the person captured'may be innocent-that he


may not be contlaband. He, therefore, has
! right to fair trial OF the accusation, against


HIM. The neutral State has taken him under
| Its flag, is bound to protect him if he is not
| conraband, and is therefore entitled to be
| satisfied upon that important question. The
faith of that State is pledged to his safety, if
innocent, as its justice is pledged to his sur
render il he is really contraband. Here are
conflicting claims, involving personal liberty,
life, honor, and duty. Here are conflicting
| national claims, Involving welfare, safety hon
or and empire. They require tribunal and
trial. The captors and the captured are
equals the neutral and thin belligerent 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 a convenient port and institute
Judicial proceedings there to try the contro-
versy. But only courts of admiralty have .juris-
diction in maratime cases, and these courts
have formulas to try only claims TO contra
band chattles, but no one to try claims con-
cernng contraband persons. The courts can
entertain no proceedings and render no judg-
ment in favor of or against. the alleged contra
band men.


1t was replied all this is true but you can
reach in those courts decision which will
have the moral weight OF judicial one by
circuiteus proceeding. Convey the suspected
men, together with 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 contra
band, and the court must then detetmine the
vessel to be contrabapd. If the men are not
contraband the vessel will escape condemna-
ton. Still there is no judgment for or against
the captured persons. But it was assumed
that there would result from the determination
of the court concerning the vessel legal GER
tainty concerning the character of the men.


This course of proceeding seemed open to
many objections. 1t elevates the incidental
inferior private interest into the proper place
of the paramount public one, and possibly it
may make the fortunes, the safety, or the ex-
istence of a nation depend on the accidents of
merely personal and pecuniary litigation.
Moreover, when the judgment of the prize
court upon the lawfulness of the capture of the
vessel is rendered, it really concludes moth
ing, 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 re-
ally 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-
nicipal law, especially in the system which ex-
lists in the greater portions OF Great Britain
and the United States. The title to personal
property can hardly ever be resolved by
court without Tesortng to the fiction that the
claimant has lost and the possessor has found
it, and the title to real estate is disputed by
real ltigants under the names of imaginary
persons. 1t must be confessed, however, that
while all aggrieved nations demand, and all
impartial ones cOncede, the need of some form
ofjudicial process in determining the charac-
ters of contraband persons, no other form than
the illogical and circuitOus one thus described
exists, uor has ny other yet been suggested.
Practically, therefore, the choice is between
that judicial remedy or no judicial remedy
whatever.


If there be no judicial remedy, the result is
that the question must be determined by the
captor himself, on the deck OF the prize ves-
sci. Very grave objections arise against such
course. The captor is armed, the neutral is
unarmed. The captor is interested, prejudic-
ed, and perhaps violent; the neutral, if truly
neutral, is disinterested, subdued. and help
less. The tribunal is irresponsible, while its
judgment 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 problematical, and depends at last on the
justice, magnanimity, or weakness of the State
in whose behalf and by whose authority the
capture was made. Out of these disput es re-
prisals and wars necessarily arise, and these
are so frequent ard destructive that it may
we'll be doubted whether this form of remedy
is not greater social evil than all that could
follow if the belligerent right of search were
universally renounced and abolished forever.
But carry the case one step farther. What if
the State that has made the capture unreason-
ably refuse to hear the complaint of the neu-
tral 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 entirely
without provocation.


1 think all unprejudiced minds will agree
that, imperfect as the existing judicial remedy
may be supposed to be, it would be, as gen.
eral practice, better to follow it than TO adopt
the summary one of leaving the decision with
the captor, and relying upon diplomatic de-
bates to review his decision. Practically, it
is question OF choice between law, with its
imperfections and delays, and war, mith its
evils and desolations. Nor is it ever to be for
gotten that neutrality, honestly and justly
preserved, is'Ialways the harhinger of peace,
and therefore, is the common interest of ma
tions, which is only saying that it is the inter-
est of humanity itself.