Diary of Gideon Welles: Monday, February 29, 1864

A strong effort is on foot by naval officers who have been retired and their friends to set aside the law and the action under which they were retired. Working to an end persistently, without organized opposition, they may, with a weak Congress, effect their object, though to the public detriment. It would be easy for me to yield to my sympathies for these men and their families, who are in many cases most deserving of sympathy, could I disregard my duty and the public interest. To oppose them is to incur unforgiving resentment; to yield will be a disregard of my obligations. I shall not be sustained in standing firm by my friends; nevertheless my course is plain. I have prepared a letter that gives my views, which I will send to the two houses. A call is made for all correspondence that has taken place, as well as the meagre records of the Retiring Board. The correspondence cannot be collected without time, but the argument and record can go in at once.

Have received the prize law by Dana and Judge Sprague and made suggestions and corrections. On scrutinizing, it appears to need more emendations than I at first supposed.

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 532

Diary of Gideon Welles: Saturday, October 3, 1863: Appendix

Embracing a synopsis of the leading British Authorities as to the first proposed Instruction.

The general rule of International Law, as received and expounded in the British Prize Courts, as to the restrictions and limitations imposed by it upon the lawfully commissioned belligerent cruiser, in the use of neutral ports or other waters, with a view to the prosecution outside of their limits, of his belligerent operations against the adverse belligerent, or the exercise of his belligerent rights on vessels claiming to be neutral, is summed up by Phillimore (citing his authorities) in the following terms: (Int. Law, Vol. 3, pp. 451-452)

"It has been already shown, in preceding portions (1.) of this work, that it is not competent to a belligerent to exercise any Rights of War within the territorial jurisdiction of a neutral State (m.), and that this jurisdiction extends not only within ports, headlands and bays, but to a recognized distance at sea from the shore itself. Thus, captures made by armed vessels stationed in a river of a Neutral Power, or in the mouth of his river, or in his harbors, for the purpose of exercising the Rights of War from that river or harbor, are invalid; and where a belligerent ship, lying within neutral territory, made a capture with her boats, sent out of the neutral territory, the capture was also held to be invalid; for though the hostile force employed was applied to the captured vessel lying out of the territory, yet no such use of a neutral territory for the purpose of war is to be permitted. (n.)

All captures therefore made by belligerents within these limits are, at the request of the Government of the Neutral State, (o), pronounced by Courts of International Law, to be invalid.

(n) The Twee Gebroeders, 3 Robinson, p. 162, leading English case. The Anna, 5 ib., p. 373. The Vrow Anna Catharina, ib., p. 15, see the arguments of the counsel in the Topaz, 2 Acton's Adm. Rep. p. 20.”

The above statement of Phillimore, its brevity being considered, is very exact, but he does not introduce into it all the exceptions to its vigorous application which appears clearly in the cases adjudicated by Lord Stowell, which he cites as his authority. It will be observed, however, that in order to bring his act within the rule of prohibition, as laid down by Phillimore, the lawfully commissioned belligerent cruiser must have his vessel stationed in the neutral water or harbor, and stationed there for the purpose of exercising the rights of war from that place. Now, neither this government nor its Naval Commanders have ever thought of infringing this rule, by so stationing its cruisers for such purpose. The importance of the distinction between the use made by the belligerent of a neutral port or water in the course of an occasional visit or sojourn there, and the use of the same place by him as a station from which habitually to exercise his rights of war, is emphatically set forth by Lord Stowell, in the case of the Anna Catharina (5 Robinson, p. 18) as follows: —

"If the fact had been that the privateer had made this capture in a neutral port, or whilst lying in harbor, as was done in some of the ports of the North, with a view of making that harbor an habitual station for captures, I should have concurred in reprobating such a practice in the strongest terms; but, if whilst a privateer is accidently lying there, she sees an enemy approaching, she may go out and capture, I conceive, without any violation of the peace or immunity of the neutral port, provided this is done beyond the limits of the port.”

In the case of the Twee Gebroeders (3 Robinson, pp. 164-165) where the vessel lay within the neutral waters and sent her boats just outside of them to make the capture, Lord Stowell emphasized the same distinction, and said: —

“You are not to avail yourself of a station on neutral territory, making as it were a vantage ground of the neutral country, a country which is to carry itself with perfect equality between both belligerents, giving neither the one nor the other any advantage. Many instances have occurred in which such an irregular use of a neutral country has been warmly resented, and some during the present war: the practice which has been tolerated in the Northern States of Europe, of permitting French privateers to make stations of their ports, and to sally out to capture British vessels in that neighborhood, is of that number.”

In the same case he said: —

“I am of opinion that no use of neutral territory for the purposes of war is to be permitted. I do not say remote uses, such as procuring provisions and refreshments, and acts of that nature, which the law of nations universally tolerates; but that no proximate acts of war are in any manner to originate on neutral grounds; and I cannot but think that such an act as this, that a ship should station herself on neutral territory and send out her boats on hostile enterprises, is an act of hostility much too immediate to be permitted.”

Now, is it not here too evident, that if the belligerent cruiser may lawfully use the neutral port to get" provisions and refreshments," he may certainly use it to get information, and may not only in "appearance," but in "reality," "watch " carefully, in order to obtain information. Nor is the slightest information here given that the belligerent cruiser may not under public law, in the absence of municipal regulation to the contrary, take his departure from the neutral water just when he pleases, either following or accompanying any vessel which may see fit to sail out at the same time.

But this position is by no means left to mere inference. In another case of similar name, The Three [=Drie] Gebroeders (5 Rob. pp. 339 [et seq.]), Lord Stowell held, in express terms, that a capture was not vitiated by the capturing ship having passed through neutral territorial waters in order to accomplish the capture outside of the neutral limits. This is the very point. The belligerent cruiser may under public law, if unforbidden by municipal regulation, rightfully sail out of the neutral port in order to accomplish his capture in a lawful place.

Indeed, so well established is this right of departure at pleasure, unless municipally forbidden, either at the same time with or just after, even an adverse belligerent, and still more along with or just after a commercial vessel under a neutral flag, that Great Britain herself has held it to be necessary, in her general order in reference to her Bahama ports, to forbid, municipally, such departure by the belligerent cruiser, along with, or immediately after, a vessel of the adverse belligerent; but while making this stringent regulation, rendered necessary because there was in the public law as accepted by Great Britain, no such rule nor restriction, the British Government has wholly abstained from imposing in that municipal regulation any such restriction or rule in relation to neutral vessels in their departure from the harbor, being accompanied, or immediately followed, by the belligerent cruiser.

It is useless to pursue the examination of this point farther. There are other cases in the British books, but they all speak with the same voice. The Prize Courts of Great Britain have never upon any occasion pretended to assert that under the Public Law, and in the absence of municipal regulation to the contrary, any lawfully commissioned belligerent cruiser occasionally visiting a neutral port and for a reasonable length of time sojourning there, may not in a peaceable manner watch any neutral commercial vessel there, and at his pleasure follow such vessel out of that port in order to do, upon the high seas, upon her any act which, at any time, may upon her be there lawfully done.

It is true that some of the Continental publicists, especially Hautefeuille, Galiani, Azuni and of course Hübner, — all avowedly impassioned champions of neutral rights, have in their speculations in their closets, as to what international law is, or in their judgment ought to be, gone farther. Lawrence has collected some of their dicta in this sense in his last edition of Wheaton, at page 767, and Lawrence's comments show that he leans too much in their direction. But their dicta, as cited by him, are not law, and by Prize Courts in Great Britain and the United States, at least, have never been received or applied as law. It is true that in our past history the United States has been almost as ardent a champion of the enlargement of neutral rights as Hautefeuille himself; but it must not be forgotten that our policy in that direction has always proceeded in the methods of attempted treaty stipulations, in order to change the harsh fixed rule, upon the basis of reciprocity. In the present case there is nothing either of such method or such basis. Our policy would, therefore, seem to be to maintain, undiminished, our belligerent rights as they stand in Public Law.

The quotation above given from Phillimore proves clearly that whenever any act is done by a lawfully commissioned belligerent cruiser, which infringes the right or immunity of a neutral port, no one in the Prize Court of any other nation can be lawfully even heard to make suggestions of such infringement, save only the neutral sovereign of the Port himself, through his agent authorized ad hoc.

It is also to be observed as a rule of Public Law too well settled to require either elucidation or citation of authority, that whosoever is injured in any manner, in a case of capture by a lawfully commissioned belligerent cruiser, who sends the prize vessel in for adjudication, is bound in law to seek in the proper manner his remedy in the Prize Court; and if he thinks that justice is not done him by such court of primary jurisdiction in the case, then he is bound in law to pursue and exhaust his judicial remedy by appeal, — and this under penalty of being held to acknowledge the justice of the sentence of the Court below, unless he does so appeal to the Appellate Court. And it is altogether irregular for him, or his Government, being neutral, in his behalf to make Diplomatic demand for reparation in his case, until his judicial remedy be thus exhausted; and this is confidently believed to be the inexorable judgment of the British Government, in relation to all such Diplomatic reclamations, when so prematurely addressed to itself as a belligerent.

As to the Second proposed Instruction.

Phillimore (Int. Law. Vol. 3, p. 602.) says:

"And indeed, in ordinary cases, the prize crew, whether national, neutral or hostile, are necessary witnesses in the cause. (r.) And upon further proof ordered the attestation of the claimant and his clerks, and the correspondence between him and his agents, are admissible evidence and proper proofs of property." (s.)

(r.) The Henrick & Maria, 4 Rob. p. 43, (s.). The Adelaide, 3 Ad. p. 281. The Henrick & Maria, thus cited by Phillimore, was a neutral (Danish) vessel, captured by a British cruiser for alleged attempt to break blockade, — released by Lord Stowell, for want of previous knowledge or due notification. Incidentally came up the question, what persons the Court had a right to have within its reach, in the adjudication of such a case, and Lord Stowell said: —

“Prisoners are accessory witnesses to be examined; according to our instructions, they are the only witnesses. The French regulations admit the evidence of the captor, but hold at the same time that natural justice requires the crew of the captured vessel should be examined touching the rights in question.”

LaPurissima Conception¹ (5 Rob. p. 40) is still stronger. A neutral (Spanish) vessel captured with scarcely justifiable cause by a British privateer, who sent her in with her whole ship's company, 22 in number, all in irons. Released at once and captor mulcted in 100 pounds sterling for his cruelty in so confining the captured persons without showing to the Court that such rigor was necessary for his own security, or that of his prize. Stowell found no fault with him for bringing them all in, — assumed indeed that he had a right to do so, and to handcuff or otherwise confine so many of them as he could show to be needful for his security. The case therefore stands as full authority for the perfect right of the captor to send in with his prize, being under a neutral flag, all her ship's company.

It is needless to cite other cases to show on this point the rule of International Law, as expounded and applied in the Prize Courts of Great Britain.

It may be added, however, that in other passages of his work (see Vol. 3, p. 590) Phillimore speaks of the “captured crew,” as in due course “brought in,” and says that “the examination” must be confined to “persons on board at the time of the capture,” unless otherwise ordered by the Court.

Upton, in the latest and fullest, and upon the whole, the most accurate Manual on Prize Law and Proceedings in the English language, which the Supreme Court in its latest judgment in prize cited as authority, lays down the settled rule of International Law upon this point, as established in the practice of our Prize Courts, in the following terms: —

“The general rule in relation to the duty of captors towards the persons captured on board the vessels taken, is to send "them in with the prize as witnesses in the proceedings in adjudication.”

Indeed are we not ourselves fully committed to the doctrine that in the case of the "Trent" it was the right, under the public law as expounded by Great Britain, of Admiral Wilkes to capture that ship and send her in, with all on board, and that his omission, under the circumstances of the case, to do so, was an irregularity?

_______________

¹ Sic Phillimore and Robinson.

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 461-6

Gideon Welles to Abraham Lincoln, September 30, 1863

Navy Department,

30 Sept. 1863.

SIR:

Since the interview with you some weeks since, in relation to certain proposed instructions to our Naval Officers, I have, as suggested, given the subject careful and thorough investigation, and am fully satisfied that neither in British law nor British practice is there any authority or precedent for such instructions. As Her Majesty's representative has introduced the subject, I have embodied what I believe to be the law and usage on the several points, in a distinct paper, which can, if you think proper, be submitted to Lord Lyons, and if I have in that document done injustice in any respect to British authority and British usage, or misapprehended or misstated international law, I shall be happy to be corrected.

Permit me in this connection to express my surprise and regret that the British Minister should so persistently insist on interfering in matters that belong to the Prize Courts, and on which he should not be heard from diplomatically, as, were Great Britain in our case and we in hers, the American Minister in London would not be heard diplomatically until judicial remedies have been exhausted. His right to be heard in the Court of Prize, according to its rules of procedure, and in the proper cases, is unquestioned. If the Court, after its appellate jurisdiction is fully exhausted, should fail to do justice in any case then undoubtedly, and not till then, diplomacy may properly come in. But I do not understand by what authority Her Majesty's Minister intervenes at all, even in the Prize Courts by suggestion, or before you, in cases where the violation of territorial immunities of Neutral powers, other than Great Britain, is in question.

If our Naval Officers violate the sovereignty, or the neutrality, or the municipal regulations, of a neutral state, we are, first in our Prize Courts and then diplomatically, amenable for that violation to the neutral state itself, and not to Great Britain, even though the act of violation has been perpetrated there by us upon a British vessel. There is no principle of international law better settled than this, and I respectfully insist that no one but the sovereign of the neutral territory which is violated, has the slightest right to allege or suggest such violation, even in our prize courts, and much less diplomatically.

As regards persons on board of captured neutral vessels the best rule of law is that they shall be sent in as witnesses; the requirement of law is that some be sent in; and if the captor fails to send them all in, he so fails at his peril of not sending enough; and if he sends them all in, all being neutral, no one has the right anywhere to complain of him, provided only that he had probable cause for capturing the ship.

But in the war in which we are now engaged, it must be remembered that no inconsiderable portion of the persons captured on some of the vessels, claiming to be neutral, are rebels. It is impossible for the captor to decide who, or how many are rebels. It certainly is not advisable to go counter to the rule so framed by all the Courts, nor to release captured rebel prisoners.

I am not unaware of your strong desire to conciliate Great Britain and to make all reasonable concessions to preserve friendly relations with her. In this feeling I cordially participate. But my earnest conviction is that we shall best command the respect which insures peace, by firmly, but not offensively, maintaining our rights; and in no way can amicable relations with Great Britain and others be so surely maintained as by our claiming only what is right, by surrendering nothing that is clearly and indisputably our own, and by referring always the question of what our just rights are to those tribunals of Prize, which are instituted by the consent of nations to adjudge these points, under the law of nations and in the interests of peace, by reason of the acknowledged inability of diplomacy, even in the most skilful hands, to deal satisfactorily, before-hand, with these complicated questions as they arise.

I am, respectfully, &c.

Gideon Welles,

Secty of Navy.

The President.

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 452-3

Abraham Lincoln to Gideon Welles, July 25, 1863

Executive Mansion,

Washington, July 25, 1863.

Hon. Secretary of the Navy,

SIR,

Certain matters have come to my notice, and considered by me, which induce me to believe that it will conduce to the public interest for you to add to the general instructions given to our Naval Commanders, in relation to contraband trade, propositions substantially as follows, to wit: —

1st. “You will avoid the reality, and as far as possible, the appearance of using any neutral port to watch neutral vessels and then to dart out and seize them on their departure.”

Note — “Complaint has been made that this has been practised at the Port of St. Thomas, which practice, if it exist, is disapproved and must cease.”

2d. “You will not in any case detain the crew of a captured neutral vessel, or any other subject of a neutral power on board such vessel as prisoners of war or otherwise, except the small number necessary as witnesses in the prize court.”

Note — “The practice here forbidden is also charged to exist, which, if true, is disapproved and must cease.”

My dear Sir, it is not intended to be insinuated that you have been remiss in the performance of the arduous and responsible duties of your Department, which I take pleasure in affirming has, in your hands, been conducted with admirable success. Yet while your subordinates are, almost of necessity, brought into angry collision with the subjects of foreign States, the representatives of those States and yourself do not come into immediate contact for the purpose of keeping the peace, in spite of such collisions. At that point there is an ultimate and heavy responsibility upon me. What I propose is in strict accordance with international law, and is therefore unobjectionable; while if it do no other good, it will contribute to sustain a considerable portion of the present British Ministry in their places, who, if displaced, are sure to be replaced by others more unfavorable to us.

Your Obd't Serv't

Abraham Lincoln.

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 451-2

Gideon Welles to Acting Rear Admiral Theodorus Bailey, August 26, 1863

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't

Gideon Welles,

Secty. of the Navy.

Acting Rear Admiral T. Bailey,

Commd'g. E. G. B. Squadron,

Key West.

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 427

Gideon Welles to William H. Seward, August 26, 1863

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

William H. Seward to Gideon Welles, August 4, 1863

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 the Mont 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 unlocked 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 the Prize Court at Key West on 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 in justice 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 the Mont 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 of Great 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 the Prize Court did 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 of Great Britain was 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.

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 418-23

Gideon Welles to William H. Seward, July 31, 1863

Navy Department,

31 July, 1863.

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 schooner Mont 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 the Mont Blanc in 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 the Mont Blanc.

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. 417-8

Diary of Gideon Welles: Tuesday, August 4, 1863

Very warm. Little done at Cabinet. Seward undertook to talk wise in relation to Commander Collins and the Mont Blanc, but really betrayed inexcusable ignorance of the subject of prize and prize courts, and admiralty law, the responsibilities of an officer, etc.

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 394

Diary of Gideon Welles: Tuesday, May 5, 1863

But little of importance at the Cabinet. The President read a brief telegram which he got last evening from General Hooker, to whom, getting nothing from the War Department, he had applied direct to ascertain whether the Rebels were in possession of the works on the heights of Fredericksburg. Hooker replied he believed it was true, but if so it was of no importance. This reply communicates nothing of operations, but the tone and whole thing — even its brevity — inspire right feelings. It is strange, however, that no reliable intelligence reaches us from the army of what it is doing, or not doing. This fact itself forebodes no good.

Sumner came in this afternoon and read to me from two or three documents — one the late speech of the Solicitor of the Treasury in the British Parliament on the matter of prize and prize courts — which are particularly favorable to our views in the Peterhoff case. From this we got on to the absorbing topic of the army under Hooker. Sumner is hopeful, and if he did not inspire me with his confidence, I was made glad by his faith. The President came in while we were discussing the subject, and, as is his way, at once earnestly participated. His suggestions and inferences struck me as probable, hopeful, nothing more. Like the rest of us, he wants facts; without them we have only surmises and surmises indicate doubt, uncertainty. He is not informed of occurrences as he should be, but is in the dark, with no official data, which confirms me in the belief that the War Department is in ignorance, for they would not withhold favorable intelligence from him, yet it is strange, very strange. In the absence of news the President strives to feel encouraged and to inspire others, but I can perceive he has doubts and misgivings, though he does not express them. Like my own, perhaps, his fears are the result of absence of facts, rather than from any information received.

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 292-3

Gideon Welles to William H. Seward, April 18, 1863

Navy Department,

18 April, 1863.

Sir,

I have had the honor to receive your note of the 15th inst. in reference to the mails of the “Peterhoff” which are in possession of the prize court in New York. I am not aware that this Department has raised any “new questions or pretensions under the belligerent right of search,” in the case of the mails of the “Peterhoff.” Had there been ground for such an imputation, it could hardly, on an occasion to which so much importance has been given, have escaped the observation of Lord Lyons. He, however, advances no such charge, directly or by implication, and founds the demand made by him exclusively on the concession which he, apparently through some knowledge of the details of your letter to me of the 31st October, had been erroneously led to believe was made by this Government, in instructions given to the commanders of its vessels of war.

The true question in the present case is, whether the administration of the law shall be suffered to take its ordinary course, or whether the Court established to administer the law, and which has certainly been in existence long enough to know its powers and duties, shall be arrested in the discharge of its functions by an order of the Executive, issued on the demand of a foreign government, which exhibits no evidence, and in fact makes no charge that law or usage has been violated on our part.

If the “Peterhoff” was captured and sent to the Prize Court without any reasonable grounds for such a proceeding, then undoubtedly the opening of the mails, if it takes place, may have been an illegal act, — but in my judgment, not otherwise. If it is to be assumed that the capture was wrongful, not only the mails but the vessel and cargo should at once be surrendered.

It may be an “unfavorable time to raise new questions or pretensions,” but it is certainly no time to renounce any right or to unsettle any long and well established principles and usage. Such a surrender would be a confession of weakness which even if it existed, it would be “inexpedient and injurious” to make known to our enemies. If the case be one of doubt, it will be time enough to yield when the doubt is dispelled, and we are found to have been in the wrong. We may then yield and make amends.

I do not consider it necessary to discuss the question of genuine or spurious and simulated mails; but will merely suggest that if what pretends to be a mail is to be considered, in all cases, prima facie sacred, and exempt from examination, it will hereafter be found exceedingly difficult, in practice, to distinguish the spurious from the genuine, nor indeed would there be any necessity for the fabrication of a spurious mail.

In the meantime I cannot but hold that the Prize Court is lawfully in possession of the mail bag in question and that the Court itself is the proper authority to adjudge and determine what disposition shall be made of it. I propose to avoid all new questions by leaving the whole matter to this ancient method of adjustment, established by the consent of nations, and it was in order to avoid innovations, as well as to maintain our national rights and the legal rights of the captors, that the suggestions contained in your note of the 31st October were not adopted by this Department.

I am, respectfully,

Your Obdt. Serv't,

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. 280-2