Captain Wilkes as he explains himself acted from combined sentiments of prudence and generosity, and of the prize vessel was not strictly necessary or involuntary. Secondly, how ought we to except these explanations from Captain Wilkes of his reasons for leaving the capture incomplete to affect the action of the British Government?
The observation upon this point first occurs is that Captain Wilkes' explanations were not made to the authorities of the captured vessel. If made know 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 accep[t the release upon the condition.
But the case is one not with them but with the British Govenment. If we claim the Great Britain ought not to insust 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 favor to be conceded by her to us in return for favors shown by us to her, of the value of which favors 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 analysis of the law applicable to them that this Government had neither meditated nor practiced 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 dimply an inadvertency, consisting in a departure by the 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 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, honored and cherished American cause, not upon British authorities but upon prinsiples that constiture a large portion of the distinctive policy by which the United States have developed the esources 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 usin 1804 by James Madison 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 subject of the present discusion 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 trule in all cases is that the question
73 R R-SERIES II, VOL II