I assume in the present case-what as I read British authorities is regarded by Great Britain herself as true maritime law-that the circumstance that the Trent was proceeding from a neutral port to another neutral port does not modify the right of the belligerent captor.
The third question is whether Captain Wilkes exercised the right of search in a lawful and proper manner.
If any doubt hung over this pint, as the case was presented in the statement of it adopted by the British Government, I think it must have already passed away before the modifications of that statement which I have already submitted.
I proceed to the fourth inquiry, namely, having found the suspected contraband on board the Trent, had Captain Wilkes a right to capture the same?
Such a capture is the chief if not the only recognized object of the permitted visitation and search. The principle of the law is that the belligerent exposed to danger may prevent the contraband persons or things from applying themselves orbeing appllied to the hostile uses or purposes designed. The law is so very liberal in this respect that when contraband is found on board a neutral vessel not only is the contraband forfeited, but the vessel which is the vehicle of its passage or transportation being tainted also becomes conraband and is subject to capture and confiscation.
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 easily be found if the question were that 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 questin here concerns the mode of procedure in regard nothat was carrying the contraband nor yet to contraband things which worked the fofeiture 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 his 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 had 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 the 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 conflicting 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.