“It is not to the right of search that we object, but to the following seizure without process of law. What we deny is the right of a naval officer to stand in place of a Prize Court, and adjudicate, sword in hand, with a sic volo, sic jubeo, on the very deck which is a part of our territory.”[35]
The same authority flourishes the same objection again.
“If Captain Wilkes and his irresponsible supporters imagine that we shall submit to the arbitrary, semi-barbarous practice, they will in a few days be undeceived; for our Government has instructed Lord Lyons to demand reparation for so wanton a breach of friendly relations.”[36]
Such declarations in an important journal, and in precise harmony with the opinions of the British law officers, seem semi-official in character.
Thus it appears that the present complaint of the British Government is not founded on any assumption by the American war steamer of the belligerent right of search,—nor on the ground that this right was exercised on a neutral vessel between two neutral ports,—nor that it was exercised on a mail steamer, sustained by subvention from the Crown, and officered in part from the royal navy,—nor that it was exercised in a case where the penalties of contraband could not attach; but it is founded simply and precisely on the idea that persons other than apparent officers in the military or naval service cannot be taken out of a neutral ship at the mere will of the officer exercising the right of search, and without any form of trial. Therefore the Law of Nations has been violated, and the conduct of Captain Wilkes must be disavowed, while men who are traitors, conspirators, and rebels, all in one, are allowed to go free.
Surely, that criminals, though dyed in guilt, should go free, is better than that the Law of Nations should be violated, especially in any rule by which war is restricted and the mood of peace is enlarged; for the Law of Nations cannot be violated without overturning the protection of the innocent as well as the guilty. On this general principle there can be no question. It is but an illustration of that important maxim, recorded in the Latin of Fortescue, “Better that twenty guilty should escape than one innocent man should suffer,”[37] with this difference, that in the present case four guilty ones escape, while the innocent everywhere on the sea obtain new security. And this security becomes more valuable as a triumph of civilization, when it is considered that it was long refused, even at the cannon’s mouth.
Remember, Sir, that the question in this controversy is strictly a question of law,—precisely like a question of trespass between two neighbors. The British Cabinet began proceedings by taking the opinion of their law advisers, precisely as an individual begins proceedings in a suit at law by taking the opinion of his attorney. To make such a question a case of war, or to suggest that war is a proper mode of deciding it, is simply to revive, on a gigantic scale, the exploded Ordeal by Battle, and to imitate those dark ages when such proceeding was openly declared to be the best and most honorable mode of deciding even an abstract point of law. “It was a matter of doubt and dispute,” says a mediæval historian, “whether the sons of a son ought to be reckoned among the children of the family, and succeed equally with their uncles, if their father happened to die while their grandfather was alive. An assembly was called to deliberate on this point, and it was the general opinion that it ought to be remitted to the examination and decision of judges. But the Emperor, following a better course, and desirous of dealing honorably with his people and nobles, appointed the matter to be decided by battle between two champions.”[38] In similar spirit has it been latterly proposed, amidst the amazement of the civilized world, to withdraw the point of law, now raised by Great Britain, from peaceful adjudication, and submit it to Trial by Combat. The irrational anachronism becomes more flagrant from the inconsistency of the party making it; for it cannot be forgotten, that, in times past, on this identical point of law, Great Britain persistently held an opposite ground from that she now takes. Hereafter, in a happier moment, this exacting power may regret the swiftness with which she undertook to gird herself for unnatural combat, on a mere point of law, with a friendly nation already struggling against domestic enemies,—especially as impartial history must record that her heavy sword was to be thrown into the scale of Slavery.
The British complaint seems narrowed to a single point, although there are yet other points, on which, had the ship been carried into port for adjudication, controversy must have arisen. The four following have been presented in the case.