Chap. IX.

208

can hardly ever be resolved by a Court without resorting to the fiction
that the claimant has lost and the possessor has found it, and the title
to real estate is disputed by real litigants under the names of imaginary
It must be confessed, however, that while all aggrieved
persons.
nations demand, and all impartial ones concede, the need of some form
of judicial process in determining the character of contraband persons,
no other form than the illogical and circuitous one thus described exists,
nor has any 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-
The captor
vessel. Very grave objections arise against such a course.
is armed, the neutral is unarmed. The captor is interested, prejudiced,
and perhaps violent; the neutral, if truly neutral, is disinterested, sub-
dued, and helpless. 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
Out of these
behalf and by whose authority the capture was made.
disputes reprisals and wars necessarily arise, and these are so frequent
and destructive that it may well be doubted whether this form of
remedy is not a greater social evil than all that could follow, if the
belligerent right of search were universally renounced and abolished
What if the State
for ever. But carry the case one step further.
that has made the capture unreasonably refuse to hear the complaint
In that case the very act of capture
of the neutral, or to redress it?
would be an act of war-of war begun without notice, and, possibly,
entirely without provocation.

"I think all unprejudiced minds will agree that, imperfect as the present judicial remedy may be supposed to be, it would be, as a general practice, better to follow it than to adopt the summary one of leaving the decision with the captor and relying upon diplomatic debates to review his decision. Practically, it is a question of choice between law, with its imperfections and delays, and war with its evils and desolations.

"Nor is it ever to be forgotten that neutrality, honestly and justly preserved, is always the harbinger of peace, and, therefore, is the common interest of nations, which is only saying that it is the interest of humanity itself.

"At the same time it is not to be denied that it may sometimes happen that the judicial remedy will become impossible, as by the shipwreck of the prize vessel, or other circumstances which excuse the captor from sending or taking her into port for confiscation. In such a case the right of the captor to the custody of the captured persons, and to dispose of them, if they are really contraband, so as to defeat their unlawful purposes, cannot be reasonably be denied. What rule

shall be applied in such a case? Clearly the captor ought to be Chap. IX. required to show that the failure of the judicial remedy results from circumstances beyond his control and without his fault, otherwise he would be allowed to derive advantages from a wrongful act of his

own.

"In the present case, Captain Wilkes, after capturing the contraband persons and making prize of the Trent, in what seems to us a perfectly lawful manner, instead of sending her into port, released her from the capture, and permitted her to proceed with her whole cargo upon her voyage. He thus effectually prevented the judicial examination which might otherwise have occurred.

"If now the capture of the contraband persons and the capture of the contraband vessel are to be regarded not as two separable 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 a right to retain the chief public benefits 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 transaction unfinished was necessary, or whether it was unnecessary and therefore voluntary. If it was necessary, Great Britain, as we suppose, must of course 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 if the defect of the capture resulted from an act of Captain Wilkes, which would be a fault on their own side.

66

Captain Wilkes has presented to this Government his reasons for releasing the Trent :

"I forbore to seize her,' he says, 'in consequence of my being so reduced in officers and crew, and the derangement it would cause inno. cent persons, there being a large number of passengers who would have been put to great loss and inconvenience, as well as disappointment, from the interruption it would have caused them in not being able to join the steamer from St. Thomas to Europe. I therefore 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, considering I had obtained the important end I had in view, and which affected the interests of our country and interrupted the action of the Confederates.'

"I shall consider, first, how these reasons ought to affect the action of this Government; and secondly, how they ought to be expected to affect the action of Great Britain. The reasons are satisfactory to this Government, so far as Captain Wilkes is concerned. It could not desire that the San Jacinto, her officers and crew, should be exposed to dangers and loss by weakening their number to detach a prize-crew to go on board the Trent. Still less could it disavow the humane motive of preventing inconveniences, losses, and perhaps disasters, to

P

Chap. IX. the several hundred innocent passengers 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 conflicting motives. He measured the sacrifices which this decision would cost. It manifestly, however, did not occur to him that beyond the sacrifice of the private interests (as he calls them) of his officers and crew, there might also, possibly, be a 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 persons. This Government cannot censure him for this oversight. It 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 deduction now made, and not of any impressions previously formed.

"Nevertheless, the question now is, not whether Captain 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 argument's sake only, that the release of the Trent, if voluntary, involved a 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 its legal consequence after it.

"It is of the very nature of a gift or a charity that the giver cannot, after the exercise of his benevolence is past, recall 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 we are obliged to consider that it was voluntary.

"Clearly the release would have been involuntary had it been made solely upon the first ground assigned for it by Captain Wilkes, namely, a want of sufficient force to send the prize vessel into port for adjudication. It is not the duty of a captor to hazard his own vessel in order to secure a judicial examination to the captured party. No large 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. If the captured party indicate purposes to employ means of resistance 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 afterwards justly object that the captor deprived her of the judicial remedy

to which she was entitled.

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

sentiments of prudence and generosity, and so that the release of the Chap. IX prize vessel was not strictly necessary or involuntary.

"Secondly, how ought we to expect these explanations by Captain Wilkes of his reasons for leaving the capture incomplete to affect the action of the British Government? The observation upon this point which first occurs, is that Captain Wilkes's explanations were not made to the authorities of the captured vessel. If made known to them, they might have approved and taken the release upon the condition of waiving a judicial investigation of the whole transaction, or they might have refused to accept the release upon that condition.

"But the case is one not with them, but with the British Government. If we claim that Great Britain ought not to insist that a judicial trial has been lost because we voluntarily released the offending vessel out of consideration for her innocent passengers, I do not see how she is to be bound to acquiesce in the decision which was thus made by us without necessity on our part, and without knowledge of conditions or consent on her own. The question between Great Britain and ourselves thus stated would be a question not of right and of law, but of favour to be conceded by her to us in return for favours shown by us to her, of the value of which favours on both sides we ourselves shall be the judge. Of course the United States could have no thought of raising such a question in any case.

"I trust that I have shown, to the satisfaction of the British Government, by a very simple and natural statement of the facts and analysis of the law applicable to them, that this Government has neither meditated, nor practised, nor approved any deliberate wrong in the transaction to which they have called its attention, and, on the contrary, that what has happened has been simply an inadvertency, consisting in a departure by a naval officer, free from any wrongful motive, from a rule uncertainly established, and probably by the several parties concerned either imperfectly understood or entirely unknown. For this error the British Government has a right to expect the same reparation that we, as an independent State, should expect from Great Britain or from any other friendly nation in a similar case.

"I have not been unaware that in examining this question I have fallen into an argument for what seems to be the British side of it against my own country, but I am relieved from all embarrassment on that subject. I had hardly fallen into that line of argument when I discovered that I was really defending and maintaining, not an exclusively British interest, but an old, honoured, and cherished American cause, not upon British authority, but upon principles that constitute a large portion of the distinctive policy by which the United States have developed the resources of a Continent, and, thus becoming a considerable maritime Power, have won the respect and confidence of many nations. These principles were laid down for us in 1804 by James Madison, when Secretary of State in the Administration of Thomas Jefferson, in instructions given to James Munroe, our Minister

Chap. IX. to England. Although the case before him concerned a description of persons different from those who are incidentally the subjects of the present discussion, the ground he assumed then was the same I now occupy, and the arguments by which he sustained himself upon it have been an inspiration to me in preparing this reply.

"Whenever,' he says, 'property found in a neutral vessel is supposed to be liable on any ground to capture and condemnation, the rule in all cases is, that the question shall not be decided by the captor, but be carried before a legal tribunal, where a regular trial may be had, and where the captor himself is liable to damages for an abuse of his power. Can it be reasonable, then, or just, that a belligerent commander who is thus restricted and thus responsible in a case of mere property, of trivial amount, should be permitted, without recurring to any tribunal whatever, to examine the crew of a neutral vessel, to decide the important question of their respective allegiance, and to carry that decision into execution by forcing every individual he may choose into a service abhorrent to his feelings, cutting him off from his most tender connections, exposing his mind and his person to the most humiliating discipline, and his life itself to the greatest dangers ? Reason, justice, and humanity unite in protesting against so extravagant a proceeding.'

"If I decide this case in favour of my own Government, I must disallow its most cherished principles, and reverse and for ever abandon its essential policy. The country cannot afford the sacrifice. If I maintain those principles and adhere to that policy, I must surrender the case itself. It will be seen, therefore, that this Government could not deny the justice of the claim presented to us in this respect upon its merits. We are asked to do to the British nation just what we have always insisted all nations ought to do to us.

"The claim of the British Government is not made in a discourteous This Government, since its first organization, has never used more guarded language in a similar case.

manner.

"In coming to my conclusion I have not forgotten that, if the safety of this Union required the detention of the captured persons, it would be the right and duty of this Government to detain them. But the effectual check and waning proportions of the existing insurrection, as well as the comparative unimportance of the captured persons themselves, when dispassionately weighed, happily forbid me from resorting to that defence.

"Nor am I aware that American citizens are not in any case to be unnecessarily surrendered for any purpose into the keeping of a foreign State: only the captured persons, however, or others who are interested in them, could justly raise a question on that ground.

"Nor have I been tempted at all by suggestions that cases might be found in history where Great Britain refused to yield to other nations, and even to ourselves, claims like that which is now before 118. Those cases occurred when Great Britain, as well as the United