Gustavus V. Fox to Flag Officer Samuel F. Dupont, February 28, 1862

Navy Department

March 6” 1862.

My dear Commodore:

I had a long talk with McClellan to-day to see if he had any objections to giving Sherman orders to go ahead with the first programme. I was rather surprised to find that he did not know why it had not been carried out, and upon comparing notes more freely, we both found that we were entirely ignorant of what was going on or intended. Meigs was with us, and he had a letter from Sherman one month old, which seemed to intimate that the other expedition was about to move. Under these circumstances, an order will be given by both Departments, suggesting that the matter go forward at once, unless incompatible with some operation now on hand. I do not think, as I have several times written you, that the Government place much importance upon the acquisition of Savannah, beyond the possession of Pulaski, but the recovery of a whole state is a moral victory that cannot be too highly estimated. The people expected Sherman to march at once upon Savannah or Charleston, which was ridiculous, and impossible, though I think he could have cut the railroad. He and his compeers, expected the gun boats to go directly into the Savannah river, and dash up to the city, which was impossible, so that a month ago he seemed to be waiting for the Navy to go South. In the meantime there is an immense force and the sickly season almost upon us. I look forward to it with dire apprehension. The Nashville has got into Wilmington, Southern accounts say by hoisting the American flag and going through our ships. A regular trade seems to be carried on from Nassau and Havana to some parts of our Southern coasts in small vessels. I suppose it cannot be entirely prevented, of course, but I do not believe they use Charleston and Fernandina as they pretend. There are eight steamers fitting out in England for the Southern coast, and the blockade would give us very serious trouble were it not for the desperate condition of the rebels, owing to their sudden reverses in the west. I think Europe will now withdraw their material aid. The Vermont, having met with serious losses, the extent of which are yet unknown, the Relief is now loading for Port Royal. I hope Lenthall and Harwood keep you well up in ammunition and coal. The resolution for you went through unanimously and I trust we shall obtain for you higher honors yet. The Maratanza “double Ender” is nearly ready at Boston and we will send her down for Rodgers. The Miami steered badly but it was the fault of the constructor at Philadelphia. The Octorara is a gem. We shall get off the Vermont again at the earliest possible moment, but she is not yet saved, and I hear has lost her masts. Any little trophies from your district would be most gratefully received by the members of Congress, and as they constantly ask me for such, I have ventured to ask you to make up a box of the most trifling things. One word more, and good night. Don't write confidential letters upon a former flag officer to your short friend.

Yours most truly,

G. V. FOX.

Flag Officer S. F. DuPont, G. V. FOX.

Comd’g So Atlantic Blockd’g Squadron

Port Royal

SOURCE: Robert Means Thompson & Richard Wainwright, Editors, Publications of the Naval Historical Society, Volume 9: Confidential Correspondence of Gustavus Vasa Fox, Assistant Secretary of the Navy, 1861-1865, Volume 1, p. 109-11

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

Diary of Gideon Welles: Saturday, August 24, 1863

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 Rodgers,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, and I so said to the President.

Am annoyed and vexed by a letter from Seward in relation to the Mont 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 captured the Mont Blanc on her way to Port 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 to England, 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 that England would 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.

_______________

1 Commander George Washington Rodgers, who was killed in the attack on Fort Wagner, August 17, 1863.

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 415-7

Diary of 1st Lieutenant John S. Morgan: Saturday, May 6, 1865

About 8.30 hear a boat whistle soon after hear loud cheering at the landing Know the news is good. News soon reaches camp that Genl Taylor has surrendered to Genl Canby & Com. Farring to Admiral Thatcher, that the details at work on the fort have been set to chopping wood for the fleet which the boat was to go up to escort down This Div is ordered to Mobile on the said fleet. I go to the landing & see the steamer Crawford just starting up the river with the white flag on the Jackstaff, she is ½ loaded with parolled soldiers going home Hear that Jonston had surrendered again conditions all right. Every one is in high spirits & the opinion is 4 to 1 that we celebrate the 4th of July at home Every available team Is hauling cord wood from the country to the landing, see a man who says he had just come from Columbus Ky to Mobile by rail, Go to river to bathe in the evening notice the Octarara Is gone Has been quite warm all day.

SOURCE: “Diary of John S. Morgan, Company G, 33rd Iowa Infantry,” Annals of Iowa, 3rd Series, Vol. 13, No. 8, April 1923, p. 598-9

Diary of 1st Lieutenant John S. Morgan: Wednesday, May 3, 1865

Kept close to quarters all day except a short visit to the commissary for some candles. At 11 A. M. the Gunboat Octorara returns bringing 4 or 5 men of our Regt. who had been up to Selma. Boat brings no news. Mr. Rush gives a dinner to which Genl Benton & a no of other officers were invited. At 12, M. a flag of truce carried by 2 Luets & 4 Privates goes out, destination not made known. After supper attended prayer meeting in camp. About tettoo time heard loud cheers in the 27th hearing that a boat had arrived Lt. Laughridge & self go to the landing to get the news. No boat, but hear that Col Patterson said “The news is glorious the war is over it is entirely played out.” This was the cause of the cheering, how the news got here I dont know. Rumors of the day — a deserter reports Forest 75 miles from here with 2500 men determined to fight us. — The Reb fleet & between 2 & 3 thousand men lie at St Stephns 25 miles above waiting to hear from Genl Taylor. — All Regts with less than 9 months to serve ordered to New Orleans to he sent up the river preparatory to muster out.

SOURCE: “Diary of John S. Morgan, Company G, 33rd Iowa Infantry,” Annals of Iowa, 3rd Series, Vol. 13, No. 8, April 1923, p. 598

Diary of 1st Lieutenant John S. Morgan: Tuesday, May 2, 1865

The 2d Brigade starts at 7 A. M. with 4 days rations & in light marching order are accompanied by one battery of 6 guns & 30 empty wagons, about an hour after was surprised to see the whole column returning to camp. I learn the cause to be that at the picket post was met a Liuet & 15 men with a flag of truce who reports that there is a cessation of hostilities in this Department for 30 days he had with him an order purporting to be from Genl Dick Taylor with his name attached forbidding any demonstrations of hostilities for 30 days. The Div Adjt goes out to see him and asks by whose authority he comes with a flag of truce to our lines, says by no other authority than his own. The Adjt tells him to get inside of his own lines as speedily as possible & not to come again without clothed with proper authority. This is talk, but there is other talk no more reasonable. That the flag brought a sealed dispatch which was sent to Mobile unbroken, there being no other boats here the Octorara (Gunboat) was dispatched immediately. I think there is more of it than the authorites would wish the soldier to know, for there must be something important or the brigade would not have turned back neither would the Octorara the only Gunboat here have been sent to Mobile. I spend the forenoon reading, about noon Mr. Rush is in & brings our mess some pickles, he says that he saw a Capt Foster just from Mobile yesterday morning who says there is an armistice of 30 days & that Genls Granger & Taylor have been in conference at 8 mile creek near Whistler for some 4 days, P. M. spend napping. After supper Lt Laughridgc & self take a walk to the river, take a boat ride in a canoe returning towards camp stop at Lt Corys quarters, are soon joined by Maj Boydston. Spend about an hour here smoking & talking. The Maj tells us that it is a truth strange as it may seem that the pickets of both armies occupy Citroville amicably & the Reb army are repairing the R. R. from C — to Meridian, & our army repairing it from C — to Mobile, also thinks the paroles are made out & signed by this time for all of Taylors men, weather warm dust almost in tolerable, & fleas “thicker than the hair on a dogs back” as Brass band serenades Brig Hd. Qtrs, tonight.

SOURCE: “Diary of John S. Morgan, Company G, 33rd Iowa Infantry,” Annals of Iowa, 3rd Series, Vol. 13, No. 8, April 1923, p. 597-8

Diary of 1st Lieutenant John S. Morgan: Monday, April 24, 1865

Night unpleasantly cool, do not move this morning, a. m. to the commissary for grub, after dinner Lt Sherman & I take a walk to the river, go in the garden attached to the house & enjoy a mess of fine ripe straw berries, rec orders late this evening for the left wing of the regt to be ready at 6. a. m. tomorrow to go on board the gunboat Octorara, all to take two days rations. I understand we are to be sent up this way to take possession of a mill so as not to allow it to be burned.

SOURCE: “Diary of John S. Morgan, Company G, 33rd Iowa Infantry,” Annals of Iowa, 3rd Series, Vol. 13, No. 8, April 1923, p. 595