Mr. Seward to Lord Lyons,.
My Lord: I have taken into consideration the note which your lordship addressed to me on the 7th of March last, which relates to the case of the Telegraph, [Page 537] of Nassau, which vessel was seized on the 30th of November, 1861, by the United States schooner Wanderer, and carried into Key West, and after a detention of three days there, was released and discharged.
Your lordship has informed me that, in the view of the British government, first, the seizure of the Telegraph was in itself unjustifiable; and, secondly, the manner in which the belligerent right of visit and search was exercised was unjustifiable in regard to the ship, because Commander Spotts ought to have exercised his right of search on board the vessel itself, and, in the absence of necessity, had no right to order the papers to be brought on board his own ship, and unjustifiable in regard to the crew, because the treatment of the seaman William J. Fisher was an unjustifiable act of violence and cruelty. Upon these grounds her Majesty’s government claim reasonable compensation from the United States, for, first, the illegal detention of the ship, and, secondly, the gross ill treatment of the aforenamed seaman, William J. Fisher.
The facts, as they are understood by the government of the United States, and as they have heretofore been communicated to you, are, that Lieutenant Commanding Spotts, on the 30th of November, 1861, while cruising among the Florida keys, discovered the Telegraph coming out from Key Vaccas, an American port or possession in the Florida keys. Commander Spotts required the captain of the Telegraph to bring her papers on board. When they were examined it was found that she had cleared from Key West, an American port, on the 28th of November, for Green Turtle key, Abaco. Commander Spotts asked Forbes, the captain of the Telegraph, what he was doing in at Key Vaccas. The captain answered that he had gone in there for wood, and that he was going to stop at Indian key for baggage belonging to some passengers. The Telegraph had no written permission to enter the Vaccas, or any other port or place, on her voyage; but the captain alleged that he had received from the collector of the customs distinct, though only verbal, permission to enter La Vaccas for wood. Thereupon Commander Spotts declared that it was illegal for the Telegraph to deviate from her outward-bound voyage and enter the keys, and he directed that the Telegraph should return to Key West for an investigation. So far as the manner of the visit, search, and seizure are affected, the facts are that the captain of the Telegraph having been hailed by Commander Spotts, and having given his assumed excuse about the want of firewood, was required by Commander Spotts to come on board the Wanderer; that he complied with the order, and delivered up his papers, which were taken from him; that Commander Spotts, having decided to detain the vessel for examination, ordered that the sails of the Telegraph should be furled; whereupon William J. Fisher, one of the crew, being drunk, defied the officers of the Wanderer in gross and violent language, saying to them, among other things, “God damn your souls to hell, if you want these sails furled, come on board and do it yourselves.” Thereupon Commander Spotts requested the captain of the Telegraph to stop Fisher’s abusive language, and the captain replied that he had no control over that seaman. On receiving this reply Commander Spotts ordered Fisher on board his own vessel, and caused handcuffs to be placed upon him, believing it necessary thus to restrain him from committing violence on the way to Key West. On arriving at Key West Commander Spotts communicated the facts to the collector of the port, who informed him that the Telegraph was cleared at the customhouse there on the 28th of November for Green Turtle key, with passengers and baggage, and one barrel of rum; that he, the collector, had at the time warned the captain from going anywhere near the main land, or having any intercourse with the inhabitants thereof; that the captain had replied to these warnings that he only wished to stop at one of the keys to take in a little firewood; that although the collector says he saw no impropriety in this, yet he neither gave him written permission to do so nor indorsed any consent for that purpose on the clearance. The collector further informed Commander Spotts [Page 538] that the Telegraph had been reported to the collector by the inspector of the customs as having been at anchor in Key Biscaye bay on her voyage to Key West, and was supposed to have communicated with the [disloyal] inhabitants of Main River. The collector therefore suggested to Commander Spotts the propriety of his turning the case over to the United States district attorney for investigation. While it does not appear that this suggestion was adopted, and if so, with what results, it is certain that the Telegraph, with her captain and crew, were released and set at liberty.
With a view to the efficiency of the blockade, Captain Mervine, the flag-officer of the Gulf blockading squadron, on the 14th of June, 1861, gave instructions to the collector of the customs at Key West, to the effect that he would require all vessels and boats leaving the harbor of Key West to obtain a clearance or permit from the custom-house, setting forth the objects of their voyage, except pilot-boats on their regular grounds, which permit must be approved by the commanding officer of the port, and if any such vessel or boat is found without such clearance, they will be dealt with as violating the blockade.
This order was such an one as the United States, being in military occupation of Key West, and blockading the whole coast, had a lawful right to make and to enforce while maintaining a blockade. The Telegraph had, when arrested and searched, just such a clearance as that order allowed, and no other. That clearance did not authorize or permit the Telegraph to enter Key Vaccas for wood, or for other purposes. Her entrance there was not only interdicted, but was suspicious, and she was lawfully countermanded and carried back into Key West, to the end that the case might be investigated. It is true that the captain informed the collector that he proposed to touch Key Vaccas to procure a little firewood, and that the collector did not protest against it, but it is equally true that the collector warned him sufficiently of the risk of capture if he should make such a departure from the voyage specified in the clearance. This government does not think that the tacit acquiescence of the collector in regard to the proposed deviation had the effect to legalize the deviation, and render the arrest, search, and detention of the vessel for investigation illegal. This government freely admits that the manner of the search was improper, and that it was the duty of the commander of the Wanderer to go on board the Telegraph and execute his right of visit there; but, on the other hand, this government supposes that when there is a strong presumption that the voyage of the vessel which has been brought to is a legal one, it may be, for many reasons, more convenient and agreeable for a captain of a vessel, when hailed, to go on board the inquiring vessel, than to insist on having a formal visit and search on board of the vessel challenged. It does not appear that the captain of the Telegraph refused, or even objected, to comply with the request of Commander Spotts, or that he, at the time, made any protest or exhibited any reluctance against the form of search which was adopted. At the same time, it does not appear that any actual injury or damage resulted to any person, or to the vessel, from the mode of search which was adopted. This government very cheerfully does, in regard to that fact, all that seems to be in its power to correct the error. It freely expresses its regret, and it will give instructions calculated to prevent a recurrence of the error.
In regard to the seaman William J. Fisher, this government thinks that when the Telegraph was legally seized, it was the duty of the seaman to desist from all resistance. The commander of the Wanderer apprehended disturbance and violence from the seaman, who was drunk and abusive, and over whom his own captain declared that he had no power to control or to reduce him to submission. If Fisher had been unlawfully detained, the placing irons upon his hands would indeed have been an aggravation of the wrong done him by his detention; but since his arrest was lawful, it was the right of the commander to prevent his resort to force, either to rescue the Telegraph or to endanger the lives of the [Page 539] captors, and the safety of the suspected vessel or that of the Wanderer. In the discussion which has taken place quite recently between this government and that of Great Britain concerning the rights and obligations of captors and captured in a case of rescue, it seems to have resulted that the captor of a vessel, when carrying her into port for adjudication, must rely exclusively upon his own strength and force, and not upon any submission of the captured crew for effecting the object. The treatment of William J. Fisher seems to this government to have been no more rigorous than was necessary to prevent danger from an insubordinate and mutinous seaman, who, when left at liberty, was confessedly refractory towards, and independent of, his superiors on board of the captured vessel.
It seems to me that the United States could not accede to the demands of her Majesty’s government in this case, without admitting that they have no right to forbid and prevent vessels under a neutral or friendly flag, even in a time of blockade and civil war, from landing when and where they please upon the American shores for the purpose of rendering aid and assistance to insurgents, and to detain for examination vessels which infringe its established military and naval regulations. This government believes that in this case it is only insisting upon rights essential to the sovereignty of every nation, and not more essential to the United States than to Great Britain herself.
I have the honor to be, with high consideration, your lordship’s obedient servant
Right Hon. Lord Lyons, &c., &c., &c.