August 24, Monday. Our advices from Charleston show progress, though slow. The monitors perform well their part. Few casualties have occurred. We hear of a sad one to-day however, in the death of George Rodger [1] one of the noblest spirits in the service. It is sad that among so many he, who has perhaps no superior in the best qualities of the man, the sailor, and the officer, should have been the victim. The President called on me in some anxiety this morning, and was relieved when he learned it was not John Rodgers of Atlantic fame. But without disparagement to bold John, no braver, purer spirit than gallant, generous, Christian George could have been sacrificed, andI so said to the President.
Am annoyed and vexed by a letter from Seward in relation to theMont Blanc. As usual, he has been meddlesome and has inconsiderately, I ought to say heedlessly and unwittingly, done a silly thing. Finding himself in difficulty, he tries to shift his errors on to the Navy Department. He assumes to talk wise without knowledge and to exercise authority without power.
The history of this case exemplifies the management of Mr. Seward. Collins in the Octorara captured the Mont Blanc on her way toPort Royal. The capture took place near Sand Key, a shoal or spit of land over which the English claim jurisdiction. I question their right to assume that these shoals, or Cays, belong toEngland, and that her jurisdiction extends a marine league from each, most of them being uninhabited, barren spots lying off our coast and used to annoy and injure us. I suggested the propriety of denying, or refusing to recognize, the British claim or title to the uninhabited spots; that the opportunity should not pass unimproved to bring the subject to an issue. But Mr. Seward flinched before Lord Lyons, and alarmed the President by representing that I raised new issues, and without investigating the merits of the case of the Mont Blanc, which was in the courts, he hastened to concede to the English not only jurisdiction, but an apology and damages. It was one of those cases alluded to by Sir Vernon Harcourt, when he admonished his government that “the fear was not that Americans would yield too little, but thatEnglandwould take too much.” Seward yielded everything, — so much as to embarrass Lord Lyons, who anticipated no such humiliation and concession on our part, and therefore asked time. The subject hung along without being disposed of. Seward, being occasionally pushed by Lord Lyons, would come to me. I therefore wrote him on the 31st of July a letter which drew from him a singular communication of the 4th inst., to which I have prepared a reply that will be likely to remain unanswered. [The correspondence follows.]
NAVY DEPARTMENT, 31 July, 1883.
SIR,
On the 13th of May last I had the honor to receive a note from you enclosing the copy of a communication addressed to Lord Lyons, under date of the 7th of May, relative to the seizure of the British schoonerMont Blanc, at Sand Key, Bahama Banks.
In that communication, and in personal interviews, I was informed that it had been admitted by our government that Commander Collins had been guilty of “inconsiderate conduct,” and that “compensation ought to be made for the wrong done.” I was requested also to designate some person at or near Key West to ascertain the damage to be paid, and in view of these facts, the President directed that the attention of the officers of the Navy shall be distinctly called to certain instructions in a note of yours of the 8th of August last, — alluding I presume to certain suggestions communicated through you to this Department on that day, which eventuated in the instructions to Naval Officers on the 18th of August, 1862. I was moreover directed to make known to Commander Collins that by “seizing theMont Blancin British waters and at anchor, he had incurred the disapprobation of the President, and that any repetition will be visited with more severe and effective censure.”
In carrying into effect these views, I took occasion to express to you, as I had on other occasions, the opinion that the subjects involved belonged to the courts rather than the Departments, and that with all the facts and circumstances before them, the judicial tribunals would arrive at more correct conclusions than we could with only limited and ex-parte information,. As requested, however, I designated Acting Rear Admiral Bailey to adjudicate or pass upon the question of damages and informed Commander Collins that he had incurred the displeasure of the President. That officer, feeling that he was reproved for an honest and vigilant discharge of a difficult and responsible duty, and sensitive on a point touching his professional reputation, has procured and forwarded to the Department the final order of the Court at Key West, in the case of the Mont Blanc, a copy of which I have the honor to transmit herewith. From this final order of Judge Marvin it will be seen that, although by consent of all the parties in interest, the vessel and cargo were restored to the claimants, yet it was decided by the Court “that there was probable cause for the capture and detention of the vessel and that each party pay its own costs.”
The judgment of the Court, having the parties before it and all the facts in the premises, is an exculpation of Commander Collins, who nevertheless stands reproved and censured for doing that which the Court declares he had probable cause for doing, and would therefore allow no costs, much less damages.
I have felt it my duty to call your attention to this fact, not only to vindicate the opinion which I have so frequently expressed, that all matters of prize should be left to the Courts for adjudication, without prejudice or pre-judgment from the Departments, but in justice to a meritorious officer who has been censured for what he believed a faithful discharge of his duty, and who is acquitted by the legal tribunal for his act in seizing the Mont Blanc.
I apprehend Her Majesty’s representative will scarcely insist on damages because, in his correspondence with the government, an incautious admission may have been made, while the court, the proper tribunal, has investigated the case and come to a different conclusion.
I think, moreover, it is an act of simple justice to Commander Collins that the censure upon him should be removed and that his record should remain unstained by the capture of theMont Blanc.
Very respectfully,GIDEON WELLESSecty. of Navy.
HON. Wm. H. SEWARD,Secty. of State.
Dep’t. of State, 4 Aug. 1863.
Hon. G. Welles, Secty. of the Navy.
SIR:— I have the honor to acknowledge the receipt of your communication of the 31st ulto. relating to the case of theMont Blanc.
The following seems to be the history of the correspondence on that subject:
On the 9th of Jan. 1863, Aubrey G. Butterfield, Esqr., British Consul at Key West, addressed to the British Consul at New York a note in which he stated that the Mont Blanc of Nassau, New Providence, A. Curry, Master, reached Key West on the 29th of December 1862, under charge of the Octorara; that she had sailed from Green Turtle Key for Port Royal, South Carolina, on the 6th of December and was captured on the 21st when at anchor at Sand Key, Bahama Bank, a mile off the shore. This letter having been transmitted to me by Lord Lyons with a request for investigation, I had the honor to communicate it to you on the 13th of January. On the 17th of January you communicated to me a letter from Commander Collins of the Octorara in which he narrated the capture, and you remarked in the letter which you addressed to me, on that occasion, that it appeared that he captured the Mont Blanc within a marine league of one of the Cays over which the English Government claims jurisdiction, and that the question of jurisdiction at the Keys and Reefs of the Bahamas is one that should not be disposed of without deliberation; for although the amount at issue (in that capture) might be small, yet the principle is important.
Acting Rear Admiral T. Bailey endorsed on the report of the capture made by Commander Collins, the words following: —”Forwarded and attention requested to the fact that one of the captures (meaning that of the Mont Blanc) was made within a marine league of one of the Keys of the Bahamas over which the English claim jurisdiction.”
The report of Commander Collins and the indorsement of Acting Rear Admiral Bailey thereon, were communicated to me by you and were afterwards made known to Lord Lyons in reply to his previous call upon this Dep’t for explanation.
On the 2d of Feb. T. J. Boynton, Esqr., U. S. District Attorney at Key West, wrote to me to the effect that he had consented to the dismission of the libel against the Mont Blanc and her restitution to the master and claimant, for the reason that the evidence and statements of all parties left no room to doubt that the place where she was seized was within British waters.
On the 9th of Feb. you wrote to me a letter, saying that, in your previous letter, you had called my attention to the question of jurisdiction, not for the purpose of indicating that you had adopted any precise and fixed opinion on the particular question, but to call my attention to a matter which seemed likely to be followed by unlooked for and important consequences.
On the 11th of Feb. I had the honor to transmit to you a copy of Mr. Boynton’s letter and on the same day communicated a copy of it also to Lord Lyons. On the 1st of May Lord Lyons replied under the instructions of the British Govt. to the effect that the seizure is admitted to have been made in British waters and while the Mont Blanc was at anchor; and Her Majesty’s Gov’t had accordingly desired him not only to express their expectation of compensation to the owners for the plain wrong done to them, but also to address to the U. S. Gov’t a remonstrance against the violation of British territory committed in this case, and to request that orders may be given to the U. S. Navy to abstain from committing the like grave offense against international law and the dignity of the British crown.
To this note, by the President’s directions, I replied on the 7th of May, last, that when this case was first brought to the notice of the State Department I had called upon the Secretary of the Navy for information which resulted in a confirmation of His Lordship’s representations that the Mont Blanc was seized at anchor within a mile of the shore in waters of which Great Britain claimed jurisdiction; that the vessel having been carried into Key West for adjudication, the attention of the District Attorney there was directed to the case; that on the 2nd of Feb. the Dist. Attorney reported dismission of the case and restitution of the Mont Blanc to Master and Claimant because evidently it had been seized in British waters. That it seemed probable at that time that the master and claimant might have waived any further claim by assenting to the disposition of the case which was thus made without insisting upon a continuance of it for the purpose of obtaining damages. That I had now submitted the claim to the President, and was authorized to say that he admits that in view of all the circumstances of the case such compensation ought to be made and I therefore proposed the mode of settlement which was finally accepted, and which is mentioned in your letter of this date.
You now lay before me a copy of the order which was made in thePrize CourtatKey Weston the 19th of Jany., before Judge Marvin. In this order it is declared that the cause of the United States against the schooner Mont Blanc and cargo, having come on to be heard, it is ordered by consent of all the parties interested that the vessel and cargo be restored to the claimant for the benefit of whom it may concern; that there was probable cause for the capture and detention of the vessel and that each party pay his own costs. Having communicated this order to me, you inform me that Commander Collins feels that he was reproved for an honest and vigilant discharge of a difficult and responsible duty, and is sensitive on a point touching his professional reputation. You remark that the judgment of the Court having the parties before it, and all the facts in the premises is an exculpation of Commander Collins, who nevertheless stands reproved and censured for doing that which the Court declares that he had probable cause for doing, and would therefore allow no costs, much less damages.
You remark farther that you have felt it your duty to call my attention to this fact, not only to vindicate the opinion which you have so frequently expressed that all matters of prize should be left to the Court for adjudication without prejudice or prejudgment from the Department, but injustice to a meritorious officer, who has been censured for a faithful discharge of his duty and who is acquitted by the legal tribunal for this act in seizing the Mont Blanc.
You submit an opinion that Her Majesty’s Representative will scarcely insist on damages because in his correspondence with the Gov’t an incautious admission may have been made, while the Court, the proper tribunal, has investigated the case, and comes to a different conclusion.
Finally, you remark that it is but an act of simple justice to Commander Collins that the censure upon him should be removed, and that his record should remain unstained by the capture of theMont Blanc.
I have submitted your note to the President together with the voluminous correspondence which it necessarily draws in review. It may be supposed, although it is not stated, that Commander Collins, in making the capture of the Mont Blanc, intended to furnish this Gov’t with an occasion to raise a question whether the Key on which that vessel was captured was really within the maritime jurisdiction, although she was known to assert that claim; and it may be inferred that you intended in your letter of the 17th of Jany. last to intimate to the State Department that the capture presented an opportunity for raising that question.
However this may have been, Rear Adm’l Bailey’s indorsement upon Commander Collins’ report, and your own remarks upon it, were so expressed as to be understood to concede that the place of capture was within the proper maritime jurisdiction ofGreat Britain. But whatever reservation might have been practised on that question under other circumstances, it was quite too late for the Executive Government to raise it against the British Government after the Prize Court, with the consent of the Dist. Attorney and the captors, had dismissed the libel and ordered the restitution of the Mont Blanc, upon an agreement of all the parties that the place of capture was unquestionably within British jurisdiction.
So far as relates to damages, the ground was expressly taken in the correspondence with Lord Lyons that the master and owner had waived damages by accepting the decree and the restitution of his vessel. But there still remained a party and rights which thePrize Courtdid not foreclose. That party was the Gov’t of Great Britain, and its claim was one for redress for injuries to its sovereignty and dignity by a violation of her territory. No prize court of our country can try and decide a national claim of this sort. It is a political claim only to be tried and adjudicated by the two Governments concerned. The records of the Gov’t admitted the violation. It was confessed in the Court, and made the basis of the restitution of the vessel and her cargo to the owners. It is not perceived that the judgment of the Court now produced affects the disposition of the subject which has been made by the President. The judgment itself is a record that the national sovereignty ofGreat Britainwas violated. And no shadow of a cause justifying the violation has been raised in the whole correspondence. There is nothing but self-defense that could excuse the exercise of aggressive national authority, confessedly on the shores or within the waters of a friendly or neutral nation. It is true the Judge says in that record that there was probable cause for capture, but in the first place, Her Majesty’s Gov’t was not a party to that cause, and could not be, the alleged violation of its dignity was not a question upon which the Court had cognizance; and no foreign nation is concluded upon such a claim by the judgment of a prize court in another nation.
The President alone is the judge of what indemnity or satisfaction was due to the British Gov’t upon the claim which they presented to him; and having awarded that satisfaction, he is now of opinion that he could not, without giving national offense, withdraw or retract the satisfaction which he has awarded, and which Her Majesty’s Gov’t have accepted.
He is gratified with the evidence furnished that Commander Collins was actuated by loyal and patriotic motives in making a capture which has been proved to be erroneous. This explanation goes with the record, and it is not deemed unfortunate that the U. S. have shown their respect for the Law of Nations while they can excuse to themselves, but not to foreign nations, an unintentional departure from that law by its most trusted agents.
I have the honor to be,Sir,Your Obedient Servant,WILLIAM H. SEWARD.
NAVY DEPARTMENT, 26 Aug. 1863.
SIR,
I have had the honor to receive your communication of the 4th Ins’t. & 14th Ins’t., in relation to the case of the British schooner “Mont Blanc,” captured by the U. S. Steamer” Octorara,” Commander Collins, and released by thePrize CourtatKey West.
In your letter of the 4th Ins’t., which gives a summary of the correspondence in relation to this case, you refer to the order of the prize court, in which “it is declared that the cause of the U. S. against the schooner ‘Mont Blanc’ and cargo, having come on to be heard, it is ordered by consent of all the parties interested that the vessel and cargo be released to the claimant for the benefit of whom it may concern; that there was probable cause for the capture and detention of the vessel and that each party pay his own costs.”
And in the same letter you state that “so far as relates to damages, the ground was expressly taken in the correspondence with Lord Lyons that the master and owner had waived damages by accepting the decree and restitution of his vessel. But there still remained a party and rights which the prize court did not foreclose. That party was the Government of Great Britain, and its claim was one for redress for injuries to its sovereignty and dignity by a violation of her territory. No prize court of our country can try and decide a National claim of this sort.”
Your letter of the 14th Ins’t. encloses a copy of a note from Lord Lyons, in which he says that on being informed by you that directions to proceed to the assessment of damages in this case would be given to Rear Admiral Bailey, he would on his part take care that proper directions should be sent to Mr. Vice Consul Butterfield and that he, Lord Lyons, is waiting for this information before taking any further steps.
It appears, therefore, that this Depar’t is expected to give directions for the assessment of damages in a case where it has repeatedly stated it would be improper for the Department to interfere, where the Judicial tribunal, which had cognizance, had decided that no damages are due, and where it is admitted that the master and owner have renounced all claim to damages.
The Department has been placed in this unfortunate and somewhat anomalous position, partly by its own fault in too readily acquiescing in the proffered reparation by the State Department, and an arrangement that had been made by that Department with Her Majesty’s representative, to ascertain and agree upon the damages to be paid, and to consider and dispose of the whole subject.
In consequence of the representations communicated in your letter of the 7th of May, the Department has conveyed to the Commander of the Octorara the Executive censure for doing what the Court has decided he was excusable in doing. Although in this case of the “Mont Blanc,” as on repeated occasions, the impropriety of interfering in matters of prize, which belong legitimately to the courts, was freely expressed, yet under the urgent appeals that were made, an assurance that the amount was small, and the case could be more speedily and satisfactorily disposed of, by referring it to some person at or near Key West to consider and dispose of the whole subject without an appeal to the Court, the Department, without fully considering the effect, and the legal power to afford reparation, was induced, in accordance with your request that some suitable person should be designated to take part in a conference as to damages, to name Acting Rear Admiral Bailey, for it knew no other in that locality unconnected with the Court.
No instructions, however, have yet been given Acting Rear Admiral Bailey, and the case, as it now stands, is such that the Department doubts its power to give the instructions which seem to be required and expected. The powers of the Department are limited by law, and I am aware of no law which authorizes it to decide what you represent as a political claim only to be tried and adjudicated by the two Governments concerned, — “a national claim of this sort.” The authority of the Department extends only to legal, individual claims, in cases where it is clearly responsible in law for the acts of its agents. But in this case the law, or the tribunal which had authority to expound and administer the law, has exonerated the agent of the Department from any responsibility. It is admitted that there is no claim in law — only a political claim: no individual claim, but “a national claim.”
In such a case the Depar’t would be perplexed in attempting to assess the damages, or in instructing others how to assess them. If it admits in this case that the legal renunciation of damages was of no effect, and that the claimant retained a legal claim for damages, it must make the same admission in every case, and ignore a well settled rule of admiralty and international law.
If it undertakes to estimate a pecuniary equivalent for an aggression upon the dignity of a foreign government, its action might seem offensive, while it had every disposition to avoid giving offense. An apology for an injury to “sovereignty and dignity” may be more or less earnest, but how can such injuries be estimated in dollars and cents, or pounds, shillings and pence? It is to be presumed that the British Government does not desire the claim to be considered in this light.
It may be said the amount of damages in this case would be the amount which the Court atKey Westwould have awarded, had its decision been what a foreign government claims would have been righteous. But the Department cannot assent to this, for it has no authority to repudiate or set aside the decision of a Court of theUnited States. That can be done only by a Superior Court or by Congress. It is the duty of this Department to respect and obey the decisions of the Courts of theUnited States.
It is said that the decree “did not foreclose” the rights of the Government of Great Britain to claim redress in this case. In one sense — to a certain extent — this is true. The decision of the highest court in the land would not be conclusive on a foreign government. But if a claimant voluntarily renounces his claim, or right to appeal, can his government claim that justice has been denied him? Does not ordinary comity “foreclose” any government from taking it for granted that it cannot obtain justice from the tribunals of another, until it has at least made the attempt? In this case of the “Mont Blanc” there was an appeal open to the Supreme Court of theUnited States. Had it been taken, the result might possibly have been that the decree of the lower court would have been set aside and the case remanded with directions to grant ample damages; or, on the other hand, the decree of the lower court might have been confirmed, for reasons so clear and convincing that the claimant himself would have acquiesced, and his government have been foreclosed by its own sense of justice.
Viewing the matter in this light, it appears to me that the right of the British Government to claim damages in this particular case has been foreclosed, not by the decision of the Prize Court at Key West, but by the acquiescence of the claimants in that decision. The question of damages for injuries to “sovereignty and dignity” is one which this Department has no authority to investigate or settle, and should pecuniary amends be required, it has no fund at its disposal to which the disbursement could be charged.
Acting Rear Admiral Bailey having been designated as a suitable person to confer on the subject of damages, before it was known that the Court had adjudicated the case, I have the honor to enclose herewith a copy of the order which has been sent to that officer, directing him to attend to the duty, should it be further prosecuted, whenever he shall receive instructions from the Secretary of State in the premises.
Very respectfully,GIDEON WELLES,Secty. of Navy.
HON. WM. H. SEWARD, Secty. of State.
NAVY DEPARTMENT, 26 August, 1863.
SIR,
In the case of the Mont Blanc, seized by Commander Collins at Sand Cay as a prize, the Court decreed: “That the cause of the U. S. against the schooner ‘Mont Blanc’ and cargo, having come on to be heard, it is ordered by consent of all the parties interested that the vessel and cargo be restored to the claimant for the benefit of whom it may concern; that there was probable cause for the capture and detention of the vessel, and that each party pay his own costs.”
The proper tribunal having thus disposed of the question as between the parties, a further claim is presented by the British Government for damages for violated sovereignty, and the Secretary of State, who has communicated with Her Majesty’s representative on this subject, having desired me to designate some person at Key West to confer with Vice Consul Butterfield on the matter of damages, I have presented your name to him for that duty.
The case being, in its present position, one of a political nature, the Secretary of State will furnish you with the necessary instructions, should the subject be prosecuted.
I am, respectfully,Your Obd’t Serv’tGIDEON WELLES,Secty. of the Navy.
Acting Rear Admiral T. Barium, Commd’g. E. G. B. Squadron, Key West.
[1] Commander George Washington Rodgers, who was killed in the attack onFortWagner, August 17, 1863.
