him fully justify the decision. One of these is the case of Glass et al. v. The Sloop Betsey (3 Dallas, 6); in which the Supreme Court of the United States sanctioned this principle so early as the year 1794." Mr. Buchanan, Sec. of State, to Mr. Saunders, June 13, 1847. MSS. Inst., As to prize courts in foreign lands, see supra, §§ 399, 400. "Only the fifth question remains, namely: Did Captain Wilkes exercise the right of capturing the contraband in conformity with the law of nations? "It is just here that the difficulties of the case begin. What is the manner which the law of nations prescribes for disposing of the contraband when you have found and seized it on board of the neutral vessel? The answer would be easily found if the question were what you shall do with the contraband vessel. You must take or send her into a convenient port, and subject her to a judicial prosecution there in admiralty, which will try and decide the questions of belligerency, neutrality, contraband, and capture. So, again, you would promptly find the same answer if the question were, What is the manner of proceeding prescribed by the law of nations in regard to the contraband, if it be property or things of material or 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 contraband things which worked the forfeiture of the vessel, but to contraband persons. "The books of law are dumb. Yet the question 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 bis unlawful voyage, and reaching the destined scene of his injurious. service. But, on the other hand, the person captured may be innocent— that is, he may not be contraband. He, therefore, has a right to a fair trial of the accusation against him. The neutral state that has taken him under its flag is bound to protect him if he is not contraband, 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 surrender if he is really contraband. Here are conflict ing claims, involving personal liberty, life, honor, and duty. Here are conflicting national claims, involving welfare, safety, honor, and empire. They require a tribunal and a trial. The captors and the captured are equals; the neutral and the belligerent state are equals. "While the law authorities were found silent, it was suggested at an early day by this Government that you should take the captured persons into a convenient port, and institute judicial proceedings there to try the controversy. But only courts of admiralty have jurisdiction in maritime cases, and these courts have formulas to try only claims to contraband chattels, but none to try claims concerning contraband per sons. The courts can entertain no proceedings and render no judgment in favor of or against the alleged contraband men. "It was replied all this was true; but you can reach in those courts a decision which will have the moral weight of a judicial one by a circuitous 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 contraband, and the court must then determine 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 determination of the court concerning the vessel a legal certainty concerning the character of the men. "This course of proceeding seemed open to many objections. It elevates the incidental inferior private interest into the proper place of the main paramount public one, and possibly it may make the fortunes, the safety, or the existence of a nation depend on the accidents of a merely personal and pecuniary litigation. Moreover, when the judg ment of the prize court upon the lawfulness of the capture of the vessel is rendered, it really concludes nothing, and binds neither the bel ligerent state nor the neutral upon the great question of the disposi tion to be made of the captured contraband persons. That question is still to be really determined, if at all, by diplomatic arrangement 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 municipal law, especially in the system which exists in the greater portions of Great Britain and the United States. The title to personal property 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 persons. It must be confessed, however, that while all aggrieved nations demand, and all impartial ones concede, the need of some form of judicial process in determining the characters 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 vessel. Very grave objections arise against such a course. The captor is armed, the neutral is unarmed. The captor is interested, prejudiced, and perhaps violent; the neutral, if truly neutral, is disinterested, subdued, 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 problematic, 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 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 forever. But carry the case one step further. What if the state that has made the capture unreasonably 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 notice, and possibly entirely without provocation. "I think all unprejudiced minds will agree that, imperfect as the existing 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 reasonably be denied. What rule shall be applied in such a case? Clearly the captor ought to be 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 advantage from a wrongful act of his own. "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, honored, and cherished American cause, not upon British authorities, 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 Mad ison, when Secretary of State in the administration of Thomas Jefferson, in instructions given to James Monroe, our minister 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 sup posed 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 case of mere property of triv ial amount, should be permitted, without recurring to any tribunal whatever, to examine the crew of a neutral vessel to decide the impor tant question of their respective allegiances, 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 danger. Reason, justice, and humanity unite in protesting against so extravagant a proceeding.' "If I decide this case in favor of my own Government, I must disavow its most cherished principles, and reverse and forever 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." Mr. Seward, Sec. of State, to Lord Lyons, Dec. 26, 1861. MSS. Notes, Gr. Brit. The question whether belligerent diplomatic agents may be regarded as contra- "The American people could not have been united in a war which, being waged to maintain Captain Wilkes's act of force, would have prac tically been a voluntary war against Great Britain; at the same time it would have been a war in 1861 against Great Britain for a cause directly the opposite of the cause for which we waged war against the same people in 1812." Mr. Seward, Sec. of State, to Mr. Adams, Jan. 31, 1862. MSS. Inst, Gr. Brit. "The Trent affair, all the world sees, was an accident for which not the least responsibility rests upon this Government. For a time our national pride and passion appealed to us to abandon an ancient liberal policy; but, even though unadvised, we did not listen to it, and we are to-day, after that occurrence, as ready and as willing to join other maritime powers in meliorations of the law, to the extent that France desires, as we were before it happened, and before the civil war commenced." Mr. Seward, Sec. of State, to Mr. Dayton, Feb. 19, 1862. MSS. Inst., France. "Necessity will excuse the captor from the duty of sending in the prize." Dana's Wheaton, § 388, note. "Where a prize is not fit for a voyage to a place of adjudication, and yet may be of value, it is customary to sell her. The statutes of the United States assume that a captor, or any national authority, may sell, in a case of necessity, rather than destroy the vessel; and that the Government may itself take a prize into its service, in a case of belligerent necessity, or if it is unseaworthy for a voyage to a port of adjudication. (Act 1864, chap. 174, § 28.)" Ibid. "Irrespective of the advantages or disadvantages to claimants or captors, on the bare question of the capacity of the court to take cognizance of a cause where the prize is not bodily in its custody, but yet is in existence, there seems to be now no doubt; whether a court will exercise its functions in any given case of an absent prize is a different case, and one of discretion, upon circumstances." Ibid. "All that the Federal States Government can urge is, that we did much the same thing ourselves before the war of 1812, when we stopped American ships and took out of them seamen whom we claimed as British. In point of fact, it was not the same thing, for we merely asserted on the part of the Crown a right to the services of our own sailors. We imputed to the ships in which those sailors might be found no breach of neutrality, and consequently we had no right to take them before a prize court, and therefore, if the right was to be exercised at all, it was necessary that it should be exercised by our naval officers. * But we do not undertake to justify all our acts of half a century ago. The law of impressment has been abolished, and it is very certain that during the last fifty years nothing of the kind has been attempted, or even imagined in England. The law of nations is deduced from the actual practice of nations; and as we, during our last war (though sorely in need of sailors), did not revive our claim to take our sailors out of American ships, the claim must be held to have been conclusively abandoned." (111 Quarterly Rev., Jan., 1862, art. 8, 269.) "The truth is that this, practice never rested upon any principle of the law of nations at all, but upon a principle of municipal law at variance with the law of nations. That principle was the doctrine of the inalienable allegiance of subjects to their sovereigns. The inference was that the sovereign had a municipal right to claim the persons and services of his subjects wherever they could be found; and that, in particular, seamen were not protected by a neutral flag, and had no right to serve a neutral power without the King's license. He might take them, under the old municipal theory of allegiance, wherever they could be found. But by the modern conceptions of the law of nations, terri177 S, Mis. 162-VOL. III-12 |