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 the Prize Court at Key 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 at Key West would 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 the United 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 the United 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 the United
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.
SOURCE: Gideon Welles, Diary of Gideon Welles,
Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30,
1864, p. 423-6
