Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1879
No. 189.
Mr. Welsh
to Mr. Evarts.
London, January 31, 1879. (Received February 17.)
Sir: Referring to my No. 214 of the 25th instant, I have the honor to state what you have probably already heard through the newspapers, that the frigate Constitution, after her disaster, was hauled off the shore by Her Majesty’s tug Malta and other vessels belonging to private owners, the Malta rendering the chief and more efficient aid. For these [Page 408] services, I am informed that the private parties demanded an extravagant compensation, but a settlement was effected with all of them excepting the proprietors of the tug Admiral, who refused the £200 which was offered to them by Captain Badger, and which is stated to have been a very liberal allowance.
On Monday evening, the 27th instant, at about half-past six o’clock, after the offices of the legation were closed, a notice, of which I transmit a copy, was left with a person in charge of the building, to the effect that a motion would be made in the admiralty division of the high court of justice on the morning of the 29th instant, for a warrant to arrest the Constitution and her cargo to answer the claim of the owners of the tug Admiral for salvage services, as above mentioned.
On the 28th instant, Paymaster Allen, of the Constitution, appeared at the legation, bringing a letter from Captain Badger, which stated that he had received a similar notice of motion, and requested me to interpose to prevent the arrest of his ship.
You will observe that in this notice the national character of the ship was not mentioned. It seemed to me that it would be only necessary to bring this fact to the knowledge of the court in an authoritative manner, in order to obtain the dismissal of the application; and as the interval before the motion was to come on was so short, I thought it best to cause counsel to be immediately instructed to present this point at the hearing without waiting for such action as might be taken by the foreign office in the matter.
I accordingly addressed a letter to this effect to Messrs. T. Cooper & Co., the solicitors who had already been employed by Captain Badger in this business.
Afterward, on the same day, I wrote to Lord Salisbury on the subject and heard from Lord Tenterden in reply, that the matter was under the consideration of the government.
At the hearing on the 29th instant, the counsel instructed by Messrs. Cooper appeared, as well as Dr. Deane on the behalf of the attorney-general, and the proceedings took place which are detailed in a cutting from the Morning Post, which I inclose. The application for a warrant was refused as I expected it would have been.
I transmit herewith a copy of the essential parts of the correspondence in relation to this matter, and I hope that my action therein may meet with the approval of the Department of State.
I have the honor to be, with great respect, your obedient servant,
Notice of motion, 1879. O, No. 40.
In the high court of justice, admiralty division.
Between the owners, master, and crew of the steam-tug Admiral, plaintiff, and the ship Constitution, her cargo and freight, defendant.
ship constitution.
We, Clarkson, Son, & Greenwell, solicitors for the plaintiffs in their case, give notice that we shall, by counsel, at 10.30 o’clock’ in the forenoon on the 29th day of January, 1879, move the judge in court to order a warrant to issue for the arrest of the vessel Constitution, and for a further warrant to arrest her cargo, and, if necessary, to deliver the same, to answer the claim of the plaintiff for salvage services rendered to the Constitution, her cargo and freight; and further to take notice that leave has been given by the court to serve short notice of this motion.
Mr. Badger to Mr. Welsh.
Portsmouth, England, January 27, 1879.
Sir: I have already made you acquainted with the extortionate claims of certain parties that gave this ship assistance on the occasion of her late disaster, and that acting under advice of counsel awards were made and sent to each, which were thought to be very liberal. One party was satisfied, two others received the money, and the fourth returned it. The party least entitled to an award, if any, for reasons, that can be shown, has, through his solicitor, made a motion before the admiralty court to seize this ship and contents and hold her for salvage. This comes up on Wednesday next, at 10.30 a.m. The notice calls her the ship Constitution, not the United States frigate of that name, and the court, or clerk, who authorized the notice to be sent, could not be aware from the face of the papers, that she is a government vessel. All the authorities that have been consulted state that such proceedings cannot be taken against a government vessel.
I expected to be ready to sail, and intended to do so, on the very day this motion is to be made.
I am not very well myself, and I have directed Paymaster Allen, of this ship, who is familiar with all that has been done, to proceed at once to London to confer with you and also with the solicitor formerly consulted, a copy of whose opinion is lodged with you. I desire to do what is right, and all the experts, everyone Englishmen, here, say that most liberal payment has been made or tendered. These are small tugs with trifling power. The work was really done by the government tug sent to our aid. I cannot commit the Navy Department, or admit for one moment such preposterous claims.
I have the honor respectfully to request that you will interpose and prevent any such act as arresting this ship for the purposes indicated.
Mr. Allen has with him the correspondence which has taken place with these parties, and will explain all the matters connected therewith.
I suppose it will be best to employ counsel to combat the motion on the ground that she is a national vessel.
I have the honor to be, &c.,
Captain Commanding.
Hon. John Welsh,
Minister of the United States, London.
Mr. Welsh to Messrs. Thomas Cooper & Co., Solicitors, &c.
London, January 28, 1879.
Gentlemen: The accompanying notice marked A having been left at this legation with the janitor after the office was closed last evening, I shall be obliged to you to instruct counsel to be present in court to-morrow morning to inform the right, honorable the judge of the admiralty court that the ship against which the warrant has been applied for by the owners, master, and crew of the steam-tug Admiral, is the United States national ship of war Constitution, regularly commissioned by the Government of the United States, and that the Constitution at the time of the alleged salvage services was engaged in the national service of the United States for public purposes and in pursuance of a special act of Congress passed in that behalf.
You will please also instruct counsel to inform the judge that the so-called cargo consists of property of which the United States Government has, for public purposes, charged itself with the care and protection. Under these circumstances I, as the representative of the Government of the United States, cannot recognize that the high court of justice has any jurisdiction whatever in this case.
I am, respectfully yours,
Counsel will be good enough to inform the learned judge that application should have been made to the Marquis of Salisbury, secretary for foreign affairs, had time permitted it.
Mr. Welsh to the Marquis of Salisbury.
London, January 28, 1879.
My Lord: At half-past six last evening, after the legation was closed, a notice, of which the inclosed is a copy, was left with the janitor of the building in which our offices are situated.
I have the honor to inform your lordship that the ship against which a warrant has been applied for by the owners, master, and crew of the steam-tug Admiral, is the United States national ship of war Constitution regularly commissioned by the Government of the United States, and that the Constitution at the time of the alleged salvage services was on a voyage from Havre to New York, under the orders of the Secretary of the Navy, and engaged in the national service of the United States for public purposes connected with the late exposition at Paris, in pursuance of a special act of Congress.
The so-called cargo consists of property of which the United States Government has, for public purposes, charged itself with the care.
I beg to add, for your lordship’s information, that I am informed that the actual and efficient services rendered to the ship in assisting her off the shore, were those of Her Majesty’s tug Malta, and that for such services as were rendered by the tug Admiral, I am advised that a liberal and handsome sum has been offered on behalf of the Navy Department of the United States.
I have, &c.,
P. S.—I have no doubt that, upon the receipt of this note, your lordship will take the necessary steps in the matter.—J. W.
Inclosed: Copy of a notice of motion.
Lord Tenterden to Mr. Welsh.
Sir: I have the honor to acknowledge the receipt of your letter of this day’s date respecting the application about to be made to the admiralty division of the high court of justice for leave to arrest the United States frigate Constitution, and her cargo, in a suit for salvage instituted on behalf of the owners, master, and crew of steam-tug Admiral; and I have to inform you that the matter, having already been brought to the notice of this department by the solicitors of the claimants, is receiving the attention of Her Majesty’s Government.
(In the absence of the Marquis of Salisbury.)
Marquis of Salisbury to Mr. Welsh.
Sir: With reference to my letter of yesterday’s date respecting the motion made in the admiralty division of the high court of justice for leave to arrest the United States frigate Constitution on a claim for salvage, I have the honor to inform you that it was thought proper that Her Majesty’s Government should be represented by counsel, on the motion being made, and that the judge of the admiralty division dismissed the motion this morning.
I have the honor to be, &c.,
Mr. Welsh to Marquis of Salisbury.
London, January 30, 1879.
My Lord: I have the honor to acknowledge the receipt of Lord Tenterden’s note of the 28th instant, and your lordship’s communication of yesterday, in relation to the motion made in the admiralty division of the high court of justice, for leave to arrest the United States frigate’ Constitution, and I have to express my thanks for the action taken by her Majesty’s Government in this matter.
I have, &c.,
[The Morning Post, Thursday, January 30, 1879.]
law intelligence.
High court of justice, probate, divorce, and admiralty division,—Wednesday (before Sir R. Phillimore).
The action against the United States Government.
To-day an argument took place on the motion made on Monday last in an action brought by the owners of the steam-tug Admiral, of Cowes, in the Isle of Wight, against the United States frigate Constitution, which grounded near Swanage, to recover the sum of £1,500 for salvage remuneration. A sum of £200 had been tendered by the defendants, but rejected by the plaintiffs; and it may be remembered that when the matter was originally brought forward Dr. Phillimore stated that the Constitution was. about to leave the country, that the plaintiffs were anxious to obtain some legal status, in a salvage suit in respect to recent services, and that he asked for leave to serve a notice of motion upon the captain of the Constitution and upon the United States consul at Portsmouth.
Sir Robert Phillimore then pointed out that some care should be taken in the mode of dealing with a ship of war belonging to a state which was at the time upon amicable relations with Her Majesty.
This morning Mr. Milward, Q. C., and Dr. Phillimore appeared for the owners of the steam-tug Admiral; Mr. E. C. Clarkson, for the American minister in London; and Dr. Deane, Q. C., for the attorney-general, as representing the crown. Mr. Milward said the application which he had to make to his lordship was that he should order two warrants to be issued, one for the arrest of the vessel Constitution, and the other for the arrest of her cargo. The steam-tug Admiral was telegraphed for from Swanage when the Constitution had got ashore near that place. The Admiral in answer to the request went from Cowes and succeeded in getting the Constitution off in safety Some question arose as to the amount of salvage re-ward which should be paid to the salvors, and after an offer of £200 had been made and refused, the present proceedings were taken in the form of the motion now made to arrest the Constitution and her cargo. In the ordinary course of things the registrar would have issued the necessary warrants, but in the present case this had not been done, and consequently the present application was now made to his lordship.
Sir Robert Phillimore remarked that it was simply a question as to whether the court in which he sat had any jurisdiction in the matter.
Mr. Clarkson said notice of the proceedings of Monday last had been given to the minister of the United States in this country, and he had been instructed to appear in court in accordance with a communication which he might be allowed to read. That communication was in the following terms:
“ Legation of the United
States,
“London, January 28,
1879.
“To Messrs. Cooper & Co., Solicitors.
“ Gentlemen: The accompaning notice marked A having been left at the legation after the office was closed last evening, I shall be obliged to you to instruct counsel to be present in court to-morrow morning to inform the right honorable the judge of the admiralty court that the ship against which the warrant has been applied for by [Page 412] the owners, master, and crew of the steam-tug Admiral is the United States national ship of war Constitution, regularly commissioned by the Government of the United States, and that the Constitution, at the time of the alleged salvage services, was engaged in the national service of the United States for public purposes, and in pursuance of a special act of Congress passed in that behalf. You will please also instruct counsel to inform the judge that the so-called cargo consists of property of which the United States Government has, for public purposes, charged itself with the care and protection.
“Under these circumstances I, as the representative of the Government of the United States, cannot recognize that the high court of justice has any jurisdiction whatever in the case.
“I am, &c.,
JOHN WELSH.
“Counsel will be good enough to inform the learned judge that application should have been made to the Marquis of Salisbury, secretary for foreign affairs, had time permitted.”
Dr. Deane said that, as representing the attorney-general, he had to inform the court that Her Majesty’s Government recognized the public character of the Constitution as being engaged upon a public employment. He was instructed to protest against the arrest of any property belonging to the United States.
Sir Robert Phillimore said it rested with Mr. Milward to show that the court had power to act in the matter.
Mr. Milward said it was not desired that anything offensive should be done to the Government of the United States; but he argued that his lordship’s court had jurisdiction over the Constitution, and that there was no pretense for saying that her cargo was not liable to salvage.
Sir Robert Phillimore. But in order to get at the cargo you must go on board the vessel.
Mr. Milward submitted that there was power to go on board a man of war which had prize property. In the present case it was not suggested that the property on board belonged to the American Government, but simply that it was under the government’s care. He would, at all events, ask the court for an order for bail to be given by the defendants, and so prevent the judgment which might otherwise be given from having the effect of depriving the plaintiffs of the only source of remedy against this vessel.
Dr. Phillimore followed in a similar strain.
Mr. Clarkson said the American Government desired to render the court every possible courtesy and assistance in deciding the matter. It appeared to him that the case was a very simple one. He quite admitted that there might be cases where a foreign sovereign threw off his sovereignty and became a trader; but his lordship had no such state of things to consider in the present instance. The Constitution was admittedly a foreign ship of war, having on board certain goods for national purposes, and it was perfectly apparent that those goods could not be got at without going on board the vessel, and that there could be no distinction drawn between the goods and the ship. He contended that the Constitution was exempt from the jurisdiction of the court.
Dr. Deane said, so far as Her Majesty’s Government were concerned, they regarded the case very much in the light in which his learned friend, Mr. Clarkson, had put it. The two countries, Great Britain and the United States, were at peace with each other; and by the comity of nations there was an implied contract between them that their public vessels of war should be free from civil jurisdiction. That understanding had not been interrupted, and he asked his lordship whether there was any ease upon record in which a civil court had exercised the jurisdiction which this court was asked to exercise in regard to the Constitution.
Sir Robert Phillimore said he had no desire to interrupt the learned counsel but he might state that at present he was disposed entirely to agree with him.
Dr. Deane remarked that he had great regard to his lordship’s time and the time of the court, and after what had just fallen from the bench, he had nothing further to say.
Mr. Milward briefly replied, reiterating his former argument.
Sir Robert Phillimore, in giving judgment, said that on Monday last an application was made to the court to allow a warrant to issue, of a peculiar character, a warrant which was to be served upon a ship of war belonging to an independent state at amity with Her Majesty. The court then directed the case to stand over, and suggested that it would be proper that notice should be given to his excellency, the American minister in London, and to Lord Salisbury,, as secretary for foreign affairs. The court had reason to congratulate itself that it took that step, for the result had been that he had had the advantage of hearing the opinion of counsel on behalf of the United States, and of the learned gentlemen representing the Crown. It appeared from telegrams which had passed in the case that a claim had been made by the [Page 413] owner of the tug for £1,500, hut that the American consul at Portsmouth had forwarded simply a check for £200, in recognition of the services it had rendered. The owner of the tug was dissatisfied with that amount, and consequently made an application to this court for an order to issue a warrant to arrest the Constitution and her cargo. The question raised under these proceedings was whether the court had any jurisdiction in the matter of a foreign ship of war belonging to an independent state in amity with our sovereign. It was admitted, and could not be denied, that if he were to exercise the jurisdiction which was craved in the present case, he should be doing that for which there were no legal grounds or precedents.
There could be no doubt as to the general proposition that ships of war belonging to another nation with whom we were at peace were exempt from the civil jurisdiction of the ports which they might enter in this country; and he had listened in vain for any peculiar circumstances which would lead him to take this case out of that general proposition.
It had happened to him more than once to have been requested by foreign states to sit as arbiter, and to make awards in cases which had arisen between them. Had such an application been made in the present instance he should have gladly undertaken the duty sought to be imposed upon him; but that was not the state of matters he had now to consider. He had merely to consider the question of jurisdiction; and he was clearly of opinion it would be very wrong and improper to assent to the request made to him on the part of the owner of the steam-tug. He might add that he saw no distinction between refusing the issue of the warrant prayed for in the case of the ship and the issue of the warrant in the case of the cargo, and he refused the request made to him equally in both cases. It might be alleged that this decision might be attended in future cases with considerable hardship, and with danger to the property of the United States on subsequent occasions when salvage services might be required. He could not, however, alter the law; and he had no reason to suppose that the United States, or any other government, would not take steps toward granting a proper amount of remuneration to salvors. He must dismiss the motion.
Mr. Cooper to Mr. Welsh.
London, January 29, 1879.
Sir: Agreeably to the instructions contained in your excellency’s letter to us of the 29th instant, we arranged that counsel should attend in court this morning upon the hearing of an application to the judge of the admiralty court to issue a warrant against the United States ship Constitution and the cargo on board her, and counsel accordingly attended and informed the court of the facts contained in your excellency’s letter relating to the Constitution.
The admiralty advocate, instructed by Her Majesty’s Government, was also present, and on the part of the government of this country protested against any jurisdiction being exercised in the case.
After hearing a lengthy argument from the counsel for the applicants, and a few words from the counsel we instructed, and a short argument from the admirality advocate, the learned judge dismissed the application with costs.
As we have carefully abstained from appearing in any way to the proceedings on behalf of the ship, there is some question whether the judge could make any order as to costs in the matter.
Note.—This order was finally made without costs.