Year: 1862

ni'AAuN n'iuttf "a W tkne5s of the State in whose
behalf and hy whose authority the capture
wqA mede. Ont OF these disputes reprisals
ana wars necessarily arise, and these are 50
frequent aud destructive that It may well Oe
doubted whether this form OF remedy is not a
greater social evil than all that could follow if
The belligereIt 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 uureasonably refuse
to hear the complaint Of the neutral, or to re-
dress il? In that case, the very act Of capture
would be an act OF war-war begun without
notice, and possibly entirely without provoca-
ton


think all unprejudced minds will agree
that, imperfect as the existing judicial remc-
dy may be supposed to be, it would be- as a
general practice, better to follow il than to
adopt the summary one of leaving the decision
with the captor, and relying upon diplomatic
debates toreyiew his decision. Practically, it is
a question Of choice between law, with its i'm
projections and delays, and war, with its evils
and desolations. Nor is il ever to be forgotten
that neutrality, honestly and justly preserved,
is always the harbnger ofpeaee, and therefore
is the common interest of nations, which is
only saying that it is the interest of humanity
Aself


At the same time it is not to be denied that
it may some time happen that the judicial
remedy will become impossible, as by the ship
wreck of the prize vessel or other cirCumstan-
cps which excuse the captor from sending or
taking her into port for confscation. In such
case the right of the captor to the custody
of the captured persons and to dispose ofthem,
if they are really coutraband, so as to defeat
their unlawful purposes cannot reasonably be
denied. What rule shall be applied in such a
case +? Clearly, the captor ought to be requir-
edto show that the failure ofthe judicial remedy
results from circumstances beyond his control
aud without his fault. Otherwise, he would
be allowed to derive advantage from wrong
r..al act of his own


IN she present case, Captain Wilkes, after
capturing TIE eontraband persons and me' 'g
prize Of the Trent in what seems to per-
fectly lawful manner instead of 5ndlng me-
into port, released her from ''e capture ana
permitted her to proceed vsn her whole cargo
upon her voyage. He mus eifeetually prevent
ed the judicial organization which might other
wise have occurred.


IT, NON, the capture of the contrabaud per-
sons and the capture Of the contraband vessel
are to be regarded, not as two separabe or
distinct transactions under the law of nations
but as one transaction, one capture only, then
it follows that the capture in this case was
left unfinished, or was abandoned. Whether
the United States have right TO retain the
chief public benefit OF it, namely, the custody
of the captured persons on proving them to be
contraband, will depend upon the preliminary
question whether the leaving of the transac-
ton unfinished was necessary, or whether it
was unnecessary, and therefore voluntary. IT,
it was necessary, Great Britain, as we suppose,
must of course waive the defect, and the con-
sequent failure of the judicial remedy. On
the other hand, it is not seen how the United
States can insist upon her waiver of that jndi-
cial remedy if the detect of the capture re
suited from an act Of Captain Wilkes, which
would be a fault 90 their own side.


Captain Wilkes has presented to this Gov
eminent his reasons for releasing the Trent
ii forbore to seize her. he says, in conse-
queuee Of my being so reduced in officers and
crew, and the arrangement it would cause
Innocent portions, there being large number
Of passengers who would have been put TO
great loss and inconvenience as well as dis
-aFpnintment fer the interruption it would
have caused them in not being able to join the
steamer from st. Thomas to Europe. | there
fore concluded to sacrifice the interest of my
officers and crew in the prize and suffered her
to proceed after the detention necessary to
effect the transfer of those Commissioners, con-
sidering had obtained the important end
had in view, and which affected the interest OF
our country and interrupted the action of that
OF the Confederates.n


| shall consider, first, how these reasons
ought TO affect the action of this Government;
ana secondly, how they ought to be expected
to affect the action of Great Britain.


the reasons are satisfactory to this Govern
ment, so far as Captain Wilkes is concerned.
u could not desire that the Sun Jacinto her
officers and crew, should be exposed to danger
and loss by weakening their number to detach
prize crew to go on board the Trent Still
less could it disvow the humane motive of pre-
venting inconvenience, losses, aud perhaps
disasters, to the several hundred innocent pas
sengers found on board the prize vessel Nor
could this Government perceive any ground for
questioning the fact that these reasons though
apparently incongruous, did operate in the
mind of Captain Wilkes and determine him to
release the Trent. Human actions generally
proceed upon mingled and sometimes conflict
ing motives lie measured the sacrifices which
this decision would cost. 1t manifesty, how
ever, did not occur to him that beyond the
sacrifice of the private interests las be calls
them) of his officers and crew, there might
also possibly be sacrifice even of the chief and
public end of his capture-namely, the right
of his Government to the custody and DISPOSE
tion of the captured persons. This Govern
ment cannot censnre him for this oversight
1t confessed that the whole subject came I'M
toreseen upon the Government as doubtless il
did upon him. Its present convictions on the
point in question are the result of deliberate
examination and deduction now made aud not
Of any impressions previously formed


Nevertheless, the question now is, not whe-
ther Captain Wilkes is justified to his Govern
ment in what he did, but what is the present
view of the Cover nment as TO the effect of
what he has done. Assuming now, for argu-
ment's sake only that the release of the Trent
if voluntary, involved waiver of the claim of
the Government to hold the captured persons