behalf and by whose authorias 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 to hear the complaint of the neutral or to redress it? In that case the very act of capture would be and act of war-of war begun without notice and possibly entirely without provocation.
I think that ll unprejudiced minds agree that imperfect as the existing judicial remedy may be supposed to be it would be as a general practice 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. Practicably it is a question of choice between law with its imperfections and delyas and war with its evils and desolations. Nor is it ever to be forgotten that neutrality honestly and justly prevesed 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 denied that it may sometimes happed 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 for confiscation. In such a case the right of the captor to the custody of the captured person 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 require to show that the failure of the judicial remedy result from ciricumatances beyond his control and without his fault. Otherwise he would be allowed to derive advantage from a wrongful act of his own.
In the present case Captain Wilkes, after capturing contraband persons and making prize of the Trent in what seems to be 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 ducicial examination which might otherwise have occured.
I now the capture of the contraband persons adn the capture of the contrabanc vessel are to be regarded not as two separate 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 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 isist upon her waiver of that judicial remedy if the defect of the capture resulted from an act of Captain Wilkes which would would be a fault on their own side.
Captain Wilkes has presented to this Government his reason for releasing the Trent:
I forbore to seize her [says he] in consequence of my being so reduced in officers and crew and the derangement it would cause innocent persons, there being a large number of passengers who would have been put to breat loss and inconvenience as