War of the Rebellion: Serial 115 Page 1150 PRISONERS OF WAR, ETC.

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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 proceeding 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 concernig contraband persons. 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 concernig the character of the men. This course ofproceeding seemed open to manyelevates 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 judgment of the prize court upon the lawfulness of the capture of the vessel is rendered it really concludes nothing and binds neither the belligerent State nor the neutral upon the great question of the disposition 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, practicable 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, aned 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 nations concede the need of some form of judicial process in determining the character of contraband persons no jother 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 and 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 problematical and depends at last on the justice, magnanimity or weakness of the State in whose