Foreign Relations of the United States, 1902, Whaling and Sealing Claims Against Russia, On Account of Arrest and Seizure of the American Vessels “Cape Horn Pigeon,” “James Hamilton Lewis,” “C. H. White,” and “Kate and Anna,” Appendix I
EXHIBIT C.
Message from the President of the United States, Transmitting a Report from the Secretary of State and Accompanying Papers Relating to the Claim against the United States of the Russian Subject, Gustav Isak Dahlberg, Master and Principal Owner of the Russian Bark Hans.
[April 27, 1898.—Read, referred to the Committee on Foreign Relations, and ordered to be printed.]
To the Congress:
I transmit herewith a report from the Secretary of State and accompanying papers relating to the claim against the United States of the Russian subject, Gustav Isak Dahlberg, master and principal owner of the Russian bark Hans, based on his wrongful and illegal arrest and imprisonment by officers of the United States district court for the southern district of Mississippi, and, in view of the opinion expressed by the Department of Justice that the said arrest and detention of the complainant were wrongful and without authority of law, I recommend the appropriation by Congress of the sum of $5,000 to reimburse the master and owners of the vessel for all losses and damages incurred by reason of his said wrongful and illegal arrest and detention.
Washington, April 27, 1898.
The President:
The undersigned, Secretary of State, has the honor to submit for transmission to Congress, if deemed proper, a memorial of the claim of Gustav Isak Dahlberg, a Russian subject, master and principal owner of the Russian bark Hans, based on his wrongful and illegal arrest and imprisonment by officers of the United States district court for the southern district of Mississippi.
The facts of the case appear to be that the complainant was arrested on board his vessel, then lying off Ship Island, Mississippi, in the early morning of February 10, 1896, by a United States deputy marshal, provided with a warrant issued by the deputy clerk of the United States district court for the southern district of Mississippi, at the suit of one Perttison, a member of the crew of said vessel, the said warrant haying been issued in violation of the provisions of Article VIII of the treaty of December 18, 1832, between the United States and Russia, which stipulates that the consular officers of the contracting parties shall have jurisdiction over disputes between the master of a vessel and the members of his crew.
The captain was taken by the marshal to Mississippi City and there confined in a dirty jail, in company with criminals, from February 10 to February 15, inclusive.
He protested against the unlawfulness of his detention, and demanded a hearing before a judicial officer, but he was given no opportunity of having the lawfulness of his imprisonment examined into until the Russian consular officer at Mobile, Ala., intervened, and, having employed legal counsel, obtained, on February 14, a writ of habeas corpus in his behalf, returnable on the 17th of the same month.
On the day after the issue of the writ, and before the case could be heard, the jailor informed Captain Dahlberg that he was free and could leave the jail, but furnished him with no explanation either of his imprisonment or his release.
The complainant then went to Mobile for consultation with the consular officer of his nation. He alleges further that, having appeared with his counsel at Mississippi City on the 17th of February, the return day of the writ of habeas corpus, and also the return day of the warrant of arrest, just as he was about to enter court with his counsel, they met the judge from whose court the warrant had issued, and that the said judge stated to him that there was no case against him. That he then asked, “Is that all the redress I am to get?” to which the judge replied, “I already decided Saturday that there was no case.”
The complainant states that, in addition to the physical suffering, discomfort, and humiliation caused by his arrest and imprisonment, he was subjected to considerable expense in attempting to obtain his release; that he was unable to return with his ship; that the ship was delayed for several days because of his arrest, and that, in consequence of these facts, he has suffered considerable pecuniary damages.
The case was referred to the Department of Justice for investigation, and, on May 20, 1896, the Acting Attorney-General reported to this Department that “the arrest and imprisonment and detention of Captain Dahlberg were altogether without authority of law.”
In view of this opinion of the Department of Justice, and of the appeal made to the sense of justice existing in the Government of the United States, I have the honor to recommend that the case be submitted to Congress, and that body be requested to appropriate the sum of $5,000, to be paid to the Russian diplomatic representative in this capital, in full satisfaction of losses and damages incurred by Captain Dahlberg and the owners of the said Russian bark Hans, by reason of the arrest and imprisonment of said master.
Respectfully submitted.
Washington, April 25, 1898.
List of papers.
- Memorandum filed by Russian legation, March 16, 1896.
- Mr. Olney to Mr. Harmon, March 17, 1896.
- Mr. Olney to Mr. de Kotzebue, No. 42, March 17, 1896.
- Mr. Harmon to Mr. Olney, March 21, 1896.
- Mr. de Kotzebue to Mr. Olney, No. 233, April 10, 1896.
- Mr. Harmon to Mr. Olney, April 10, 1896.
- Mr. Olney to Mr. Harmon, April 14, 1896.
- Mr. Harmon to Mr. Olney, April 15, 1896.
- Mr. Olney to Mr. de Kotzebue, No. 48, April 18, 1896.
- Mr. Olney to Mr. Harmon, April 22, 1896.
- Mr. Conrad to Mr. Olney, April 28, 1896.
- Mr. Olney to Mr. de Kotzebue, No. 53, May 1, 1896.
- Mr. Conrad to Mr. Olney, May 20, 1896.
- Mr. Olney to Mr. de Kotzebue, No. 59, May 23, 1896.
- Memorandum of Russian legation, June 17, 1897.
- Mr. Sherman to Mr. McKenna, June 24, 1897.
- Mr. McKenna to Mr. Sherman, June 30, 1897.
- Mr. Sherman to Mr. de Wollant, July 8, 1897, No. 114.
- Mr. de Wollant to Mr. Sherman, No. 520, December 2, 1897.
- Mr. Sherman to Mr. de Wollant, No. 138, December 18, 1897.
- Mr. de Wollant to Mr. Day, No. 148, April 8, 1898.
- Mr. Day to Mr. de Wollant, April 14, 1898.
Memorandum filed by Russian legation March 16, 1896.
Mr. Alexander de
Somow,
Chargé d’Affaires ad interim
of His Majesty the Emperor of Russia, at Washington, D.
C.
The petition of Gustaf Isak Dahlberg, subject of His Majesty the Emperor of all the Russias, respectfully represents to your excellency that he was born at Ulaborg, in the grand duchy of Finland, in the year 1855, and that for twenty-eight years he has been a seaman, since 1879 being the——of a vessel. That the Captain Dahlberg who, in 1867, rescued the crew of the American ship Toscana in North American ocean was deponent’s father.
That about the 15th day of October, 1895, the deponent sailed from Cardiff, in Great Britain, as commander of the Russian bark Hans, of which bark he is also the principal owner. The Hans was bound for Mobile Bay, Alabama, for orders, and outside of Mobile Bay received orders to proceed to Ship Island to load cargo, from whence she was to return to Europe with such cargo.
That on the 3d day of December, 1895, deponent arrived at the anchorage of Ship Island, in the State of Mississippi, where the vessel anchored. At about 1 a.m. in the morning of February 10, 1896, a United States marshal boarded the said bark Hans and placed deponent under arrest, showing him at the same time, but not leaving with him, the original nor a copy thereof, although deponent requested that the warrant be left with him.
That the said deputy marshal thereupon compelled the deponent to leave his ship and to accompany him, although the deponent protested against the arrest as unjust and illegal; but he, however, made no resistance, and was taken by the said deputy marshal to Biloxi, a distance of some 23 miles from his ship, and was from there transported to Mississippi City, where he arrived about 7 p.m. on the 10th of February, 1896.
That upon arriving at Mississippi City deponent was confined in a loathsome and filthy jail, in company with criminals, and subjected to much discomfort and suffering. That through the whole period of his confinement, extending from the 10th day of February to the 15th day of February, 1896, deponent continually protested that his detention was illegal, unlawful, and without jurisdiction.
He also demanded that he should be brought without delay before some judge or magistrate for an immediate hearing.
The deponent further states that, in answer to his repeated protests and his reiterated demands to be brought before a magistrate, he was asked to give a bond in the sum of $1,000. This deponent was not in a position to furnish such a bond as was required of him as a condition for his restoration to liberty, and protested that he was innocent of any wrong, and his detention and the exaction of such bond entirely unlawful and without jurisdiction. He insisted upon having an immediate hearing, or at least being given an opportunity of going before a magistrate or judge of the United States. Upon the 12th day of February, 1896, deponent communicated with the Russian consul at Mobile, asking for protection, and through his good offices he obtained counsel.
That the said counsel immediately prepared a petition for a writ of habeas corpus, to wit, on the 14th day of February, but owing to the illness of the judge the hearing upon said writ was postponed by said judge to the 17th instant; that on the 15th day of February, at about the hour of 10.30 a.m., the jailer came to deponent, who was confined in a cell, and informed him that he was free and could leave the jail, [Page 329] without furnishing any further explanation of his incarceration or its pretext. Deponent then immediately went to Mobile and communicated with the Russian consul at that place, Mr. Murray Wheeler. On the 17th, the day fixed for the hearing on his writ of habeas corpus, as well as the return day of the warrant of arrest as to him, he returned to Mississippi City with his counsel and with witnesses, in readiness for the argument on said writ of habeas corpus and for the trial of any pending question, though protesting against the jurisdiction of the court in the premises.
That as the deponent was about to enter the said court-house with his counsel they were met by the United States judge by whom the warrant of arrest against deponent had been issued and before whom the writ of habeas corpus was returnable, and the said judge stated to deponent that “there was no case” against him. Deponent then asked him, “Is that all the redress I am to get?” to which the judge replied, “I already decided on Saturday that there was no case.”
Deponent further alleges that at the time of his arrest by the United States deputy marshal on board his bark Hans, upon the 10th of February, he was shown the warrant, but not the complaint upon which the warrant was obtained; that the said warrant, as appears from the copy hereto annexed, was stated to have been obtained by one H. Perttison, who was alleged to have commenced a civil and maritime action for damages against deponent for assault, although deponent’s recollection of the warrant exhibited to him is that it referred to a complaint for “wages, damages, and hitting.”
That it was not until after his confinement and through the efforts of his counsel, Mr. Noland, that deponent was finally able to obtain a copy of the complaint made by such Perttison, upon which the warrant was issued, a copy of which complaint is hereto annexed.
That according to the said complaint this was a mere civil action for damages, and not a proceeding of a criminal nature. While deponent denies that he was guilty of the ill treatment of said Perttison as alleged in the said complaint, and while he further states, and as appears from the records of the ship’s log, that the said Perttison was guilty of a breach of contract in that he having shipped in Cardiff for a voyage and refused to work on board ship lying at Ship Island anchorage, yet deponent believes these matters to be immaterial by reason of the fact that his arrest and subsequent imprisonment was illegal and contrary to the laws of the United States, completely without jurisdiction, and was in violation of the treaty existing between the United States of America and the Emperor of Russia, proclaimed May 11, 1833, of which the following is an extract:
“Article VIII. * * * The consuls, vice-consuls, and commercial agents shall have the right, as such, to sit as judges and arbitrators in such differences as may arise between the captains and crews of the vessels belonging to the nation whose interests are committed to their charge, without the interference of the local authorities, unless the conduct of the crews or of the captain should disturb the order or the tranquillity of the country, or the said consuls, vice-consuls, or commercial agents should require their assistance to cause their decisions to be carried into effect or supported. It is, however, understood that this species of judgment or arbitration shall not deprive the contending parties of the right they have to resort, on their return, to the judicial authority of their country.”
That in addition to the physical suffering, discomfort, and humiliation undergone by deponent he was subjected to considerable expense in attempting to obtain his release, and that further he was unable to return with his ship, and that the ship was delayed for several days because of deponent’s arrest, and therefore has suffered considerable pecuniary damages in consequence of these facts. Deponent claims that the illegality of the arrest consisted in—
- First. That under the treaty between the United States of America and the Empire of Russia, made and proclaimed on the 11th day of May, 1833, all controversies between a Russian master and members of his Russian crew upon a Russian vessel are to be settled before the consular courts of the Empire of Russia.
- Second. That the courts of the United States have no jurisdiction over civil controversies arising between Russian subjects upon a Russian vessel, and that the action of the United States judge in ordering the arrest of deponent was entirely without jurisdiction, a usurpation of authority, null and void.
- Third. That the proceedings were contrary to and in violation of the admiralty rules and laws of the United States.
- Fourth. That the procedure in the case was irregular and contrary to law.
- Fifth. That the imprisonment was contrary to the constitution and statutes of the State of Mississippi.
Wherefore deponent claims that he has suffered damages and injury to his person and character by the unauthorized act of the United States judge in ordering his [Page 330] arrest and of the United States deputy marshal by actually putting him in confinement, and he begs that the Government of His Imperial Majesty the Emperor of Russia, in vindication of the rights of one of His Majesty’s subjects, will claim redress and indemnity from the Government of the United States.
Of Ulaborg, Finland, Russia.
[H. M. A. Perttison v. G. I. Dahlberg. Libel in personam.]
In the district court of the United States of America, southern division, southern district of Mississippi, at the February term, A. D. 1896.
A statement of facts regarding the imprisonment of Gustaf I. Dahlberg, master of the Russian bark Hans, in the jail of the county of Harrison, State of Mississippi, growing out of the proceedings of the court in the above-entitled cause, made by T. V. Noland, attorney at law, of the bar of Mississippi City, Miss.
I became professionally connected with the case about 8 o’clock in the night of February 12, 1896, at the request of Murray Wheeler, esq., Russian vice-consul at Mobile, Ala., and afterwards on same night being retained by Captain Dahlberg to take steps for his release from imprisonment in the said jail. At the time aforesaid I accompanied Mr. Wheeler to the said jail and was there introduced to Captain Dahlberg, who was then confined and restrained within the walls of the jail. Captain Dahlberg made a statement to Mr. Wheeler and myself of the circumstances of his arrest on board his ship, and his transportation thence to his then present quarters by Mr. E. Sugden, United States deputy marshal, etc. On examination next day of the papers in this case, in the office of the clerk of the court, I resolved to institute habeas corpus proceedings in behalf of Captain Dahlberg. I prepared the necessary papers therefor, and in the afternoon of the 14th February I presented the same to Hon. H. C. Niles, judge of the court, etc., who only a few hours before had arrived at Mississippi City.
Judge Niles, who was then quite unwell, informed me that he could not bear this matter until Monday, that being the 17th of February. On the morning of the 15th February, Mr. Meriwether, the proctor of record of the libellant in the cause, came to me and said that he was going to instruct Mr. Sugden, the deputy marshal, to release Captain Dahlberg from the jail, and then proceeded to the direction of Mr. Sugden’s residence. Very soon thereafter, while I was conferring with Captain Dahlberg in jail, the turnkey of the jail came in and announced to Captain Dahlberg that he was released. This was done, as I understood at the time, by the direction and order of the said deputy marshal. Captain Dahlberg then being at liberty, no further steps were needed or taken regarding the habeas corpus proceedings.
I, the undersigned, hereby certify that the foregoing is a true and correct statement of the facts concerning the matter hereinbefore mentioned.
United States of America, southern division of the southern district of Mississippi, ss. In admiralty.
The President of the United States of America to the marshal of said district, greeting:
You are hereby commanded that you arrest G. I. Dahlberg, if he shall be found in your district, and him so arrested you keep under safe and secure arrest, so that his body may be had and forthcoming before the judge of the district court of the United States for the said district, at the city of Mississippi City, on the 17th day of February, 1896, there to answer unto H. M. A. Perttison in a cause of damage, civil and maritime; and further to do and receive in this behalf as to justice shall appertain, and that you duly certify the aforesaid judge what you shall do in the premises, together with these presents.
[seal.]
Per C. Phelps, Deputy Clerk.
I, Geo. P. Hewes, sheriff of Harrison County, Miss., hereby certify that the foregoing is a true and correct copy of the copy of the warrant delivered to me by E. Sugden, deputy United States marshal, the 10th day of February, 1896, and I further [Page 331] certify that said G. I. Dahlberg was received in my jail on said 10th February, and was released by order of said deputy marshal on the 15th February, 1896.
Mr. Olney to Mr. Harmon.
Washington, March 17, 1896.
Sir: I have the honor to inclose copy of the complaint of Captain Dahlberg, a Russian subject, commander of the Russian bark Hans, alleging that he was arrested and detained in prison on a warrant in a civil case issued by the United States court for the southern district of Mississippi.
The complaint has been presented to this Department by the Russian minister at this capital, and I have to request that you will inform the Department as to the proceedings complained of, which (the action being brought by a member of the crew against the captain) appears to have been in violation of the complainant’s treaty rights.
I have the honor to be, sir, your obedient servant,
(Inclosure: Complaint of Capt. G. I. Dahlberg.)
Mr. Olney to Mr. de Kotzebue.
Washington, March 17, 1896.
Sir: I have the honor to acknowledge the receipt of the copy of the complaint of Capt. G. I. Dahlberg, of the Russian bark Hans, alleging that in contravention of his treaty rights he was arrested and imprisoned on a warrant in a civil case, issued by the United States district court for the southern district of Mississippi, the action having been instituted by a member of the crew against the commander of the vessel.
In reply I have the honor to say that I have submitted the matter to the Attorney-General for his examination.
In compliance with your oral request, I return the copy of the complaint left by you at the Department.
Accept, etc.,
(Inclosure: Complaint of Capt. G. I. Dahlberg.)
Mr. Harmon to Mr. Olney.
Washington, D. C, March 21, 1896.
Sir: I have the honor to acknowledge the receipt of your communication of the 17th instant, inclosing a copy of the complaint of Captain Dahlberg, a Russian subject, commander of the Russian bark Hans, alleging that he was arrested and detained in prison on a warrant in a civil case issued by the United States court for the southern district of Mississippi, and requesting that I will inform the Department as to the proceedings complained of.
I will at once communicate with the United States attorney for the southern district of Mississippi, and obtain through him all information he may be able to procure, and will then report more fully, in compliance with your request.
Respectfully,
Mr. Kotzebue to Mr. Olney.
Washington, April 10, 1896. (Received Apr. 11, 8.09 p.m.)
Mr. Secretary of State: Referring to the note dated the 17th of March last, whereby your excellency was pleased to inform me that the case of Mr. Dahlberg, [Page 332] captain and owner of the Russian schooner Hans, has been transmitted to the Department of Justice, I have the honor to have recourse to your accustomed courtesy, begging that you will communicate to me the conclusions of the Attorney-General.
If the facts have been in effect such as have been communicated to me, they present an incontestable gravity. Moreover, Captain Dahlberg, assailed in his material interest as well as in his moral position, claims to be indemnified.
In case the procedure in his case has been really illegal and contrary to the stipulations of our treaty of commerce and navigation of 1832, I deem it my duty to recommend this reclamation to your most serious attention.
I embrace this opportunity, etc.,
Mr. Harmon to Mr. Olney.
Washington, D. C., April 10, 1896.
Sir: Referring to your letter of March 17, 1896, the receipt of which was acknowledged at the time, requesting me to inform your Department as to the proceedings complained of in the matter of the arrest and detention in prison of Captain Dahlberg, a Russian subjection a warrant in a civil case issued by the United States court for the southern district of Mississippi, I beg to say that I at once called upon the United States attorney for that district for all information in regard to the case, in response to which I have just received from him what purports to be an authenticated transcript of the entire proceedings, which I enclose for your information, together with a copy of a letter accompanying the same. No report from the United States marshal appears to have been received by the district attorney in response to his applications to the marshal. When the same is received at this Department it will be forwarded to you.
Respectfully,
Sir: As stated in my letter of 24th ultimo, I received your communication relative to a complaint made by Captain Dahlberg, a Russian subject, commander of bark Hans, alleging that he was arrested and detained in prison on a warrant in a civil case issued by the United States court for the southern district of Mississippi, and the Secretary of State requests that I shall inform him as to the proceedings complained of, which appear to have been in violation of the complainant’s treaty rights, and requesting me to make an investigation and report. As this is a matter in reference to which I have no personal knowledge, I referred a copy of your communication to United States Marshal J. S. McNeily, accompanied by a letter from me making inquiry as to the facts, and requested him to make a report.
I also wrote to the United States circuit court clerk requesting copy of the pleadings. I herewith inclose a copy of the pleadings filed in the case, which explain themselves.
I have not heard from the United States marshal, so I have again written him. As soon as I receive a reply I will report further.
Very respectfully,
United States Attorney, Southern District Mississipi.
The Attorney-General,
Washington, D. C.
The district court of the United States for the southern district of Mississippi. In admiralty.
Hon. Henry C.
Niles,
Judge of the District
Court of the United States in and for the Southern
District of Mississippi:
Hugo Mikael Alfred Perttisen, of Ylinicska, Finland, Russian Empire, late mariner and carpenter on board the Russian bark Hans, whereof G. I. Dahlberg, of Uleaburg, [Page 333] Finland, is or lately was master, brings this his libel against the said G. I. Dahlberg, in a cause of damage, civil and maritime, and the said libelant alleges and propounds as follows:
- First. That on or about the 14th day of October, A. D. 1895, at the port of Cardiff, the said bark Hans, whereof the said G. I. Dahlberg was master, then being at the port of Cardiff and destined on a voyage from the said port of Cardiff to any port or ports in the United States of America and thence to any port in Europe, the libelant shipped to serve as a carpenter on board the said bark during the said voyage; that the bark soon proceeded thereafter upon the said voyage with the libelant on board and in due time arrived at Ship Island, in the State of Mississippi; and that during the whole of said voyage the libelant did well and truly perform his duty on board the said bark as such carpenter and was obedient to all the lawful commands of the said master and other officers on board the said bark.
- Second. That during the said voyage, to wit, on or about the 11th day of December, 1895, the said G. I. Dahlberg, at Ship Island Harbor, cruelly assaulted, beat, wounded, and illtreated libelant for no other reason than that libelant, in answer to a question put by a professional diver, told how much the bark leaked.
- Third. That on the 13th of December, 1895, while libelant was sick in bed, he asked the said master for permission to go to the hospital; that the said master, pretending to feel libelant’s pulse, seized him roughly by the wrist with one hand while with the other he seized libelant by the throat and dragged him out of bed, breaking down the bed. The said master then ordered libelant to follow him to the deck, which order libelant obeyed, when said master again cruelly beat and ill used libelant. Libelant asked permission to see the Russian consul, and the master replied that he was the consul and the king, and that he would whip him as much as he pleased, and that any of the seamen may whip him and that nothing would be heard of it. The master then told libelant that he was a prisoner and refused to give him anything to eat, and threatened to punish any of the seamen if they should give him anything to eat; that said cruel treatment was continued by said master until on or about the 24th of January, 1896, when libelant asked the said master for his wages and for permission to go ashore. The master told him to go, but refused to pay him his wages.
- That all and singular the premises are true and within the admiralty and maritime jurisdiction of the United States and this honorable court.
- Fourth. That by reason of the wanton cruelty and unlawful violence to which the libelant has been subjected by the said master, as hereinbefore alleged and set forth, the libelant has suffered great pain, distress, and he has been damaged to the amount of $5,000.
Wherefore the libelant prays that a warrant of arrest, in due form of law according to the course of this honorable court in cases of admiralty and maritime jurisdiction, maybe issued against the said G. I. Dahlberg, and that he may be cited to appear and answer all and singular the matters aforesaid before this honorable court on the 17th day of February, 1896, at Mississippi City, then and there to answer the libelant in the premises, and that this honorable court would be pleased to decree to the libelant the payment of the said amount due to libelant in a cause of damage, civil and maritime, aforesaid, with interest and costs, and that the libelant may have such other and further relief as in law and justice he may be entitled to receive.
The United States of America, Southern District of Mississippi:
On this 4th day of February, 1896, before me, at my office in the town of Scranton, Miss., personally appeared the within-named Hugo Mikael A. Perttisen, and made oath that he had heard read the foregoing libel and knows the contents thereof, and that the same are true.
Commissioner of the Circuit Court of the United States for said District.
Filed February 8, 1896.
Per C. Phelps, Deputy Clerk.
United States of America, southern division of the southern district of Mississippi, ss. In admiralty.
The President of the United States of America to the marshal of said district, greeting:
You are hereby commanded that you arrest G. I. Dahlberg, if he shall be found in your district, and him so arrested you keep under safe and secure arrest, so that his body may be had and forthcoming before the judge of the district court of the United States for said district, at the city of Mississippi City, on the 17th day of February, 1896, there to answer unto H. M. A. Perttisen in a cause of damage civil and maritime, and further to do and receive in this behalf as to justice shall appertain, and that you duly certify the aforesaid judge what you shall do in the premises, together with these presents.
[seal.]
Per C. Phelps, Deputy Clerk.
[Marshal’s return.]
Received in my office this 8th day of February, A. D. 1896.
Per E. Sugden, Deputy Marshal.
Executed by arresting the within named G. I. Dahlberg and transporting him to Mississippi City and confining him in jail in default of bond, which he refuses to give, this 10th day of February, A. D. 1896.
Per E. Sugden, Deputy Marshal.
Returned and filed February 15, 1896.
Per C. Phelps, Deputy Clerk.
[H. M. A. Perttisen v. G. I. Dahlberg. Libel in personam.]
Libellant, by attorney, comes and moves the court for leave to amend his said libel, by striking out the words “warrant of arrest,” in first and second lines of the prayer of said libel, and inserting in lieu thereof “a citation.”
And further, by striking out the word “against,” in fifth line of said prayer, and inserting in its place the word “to.” And that a new citation be immediately issued to the defendant, as directed by libel as amended.
Per C. Phelps, Deputy Clerk.
United States of America, southern division of the southern district of Mississippi. In admiralty.
The President of the United States of America to the marshal of the said district of Mississippi, greeting:
Whereas a libel has been filed in the district court of the United States in and for the southern division of the southern district of Mississippi, on the 8th day of February, A. D. 1896, by H. M. A. Perttisen against G. I. Dahlberg, in a certain action, civil and maritime, for damages therein alleged to be due the said libelant, amounting to $5,000, and praying that a citation may issue against the said defendant, pursuant to the rules and practice of this court:
Now, therefore, you are hereby commanded to cite and admonish the said defendant, if he shall be found in your district, that he be and appear before the said district court on Monday, the 2d day of March, at — o’clock in the forenoon of said day, then and there to answer the said libel and to make allegations in that behalf. And have you then there this writ.
Per C. Phelps, Deputy Clerk.
[Marshal’s return.]
Received February 18, 1896.
Per E. Sugden, Deputy Marshal.
After diligent search, not found in my district, this 2d day of March, A. D. 1896.
Per E. Sugden, Deputy Marshal.
Returned and filed March 2, 1896.
Per C. Phelps, Deputy Clerk.
Mr. Olney to Mr. Harmon.
Washington, April 14, 1896.
Sir: In connection with my letter to you of the 17th ultimo, touching the complaint of Captain Dahlberg, I have now the honor to inclose copy of a note from the Russian minister of the 10th instant, asking to be made acquainted with your conclusions in the matter and intimating the possibility of a claim for indemnity in favor of Captain Dahlberg.
I shall be glad to be placed in possession of all the facts in the case so far as you are able to ascertain them.
I have, etc.,
Mr. Harmon to Mr. Olney.
Washington, D. C., April 15, 1896.
Sir: Referring to correspondence heretofore had on the subject of the arrest and imprisonment of Captain Dahlberg, a Russian subject, under process issuing from the United States district court for the southern district of Mississippi, I beg to transmit herewith a copy of a communication just received from R. C. Lee, United States attorney, inclosing reports from the sheriff of Harrison County, Miss., the deputy United States marshal, and the deputy clerk of the circuit court, containing, together with the report of the United States attorney, heretofore forwarded to you, all the information which I have been able to gather on the subject.
Respectfully,
Sir: As a supplementary report to my communication of April 6, 1896, in reply to your communication of March 21, 1896 (S. G., 4801), I herewith inclose copies of letters received from the sheriff of Harrison County, Miss., where the defendant, G. I. Dahlberg, was confined; also a letter from E. Sugden, deputy United States marshal, who made the arrest; also a letter from Mr. C. Phelps, deputy United States circuit court clerk at Mississippi City, Miss., who has charge of the office there, and who issued the writ upon which the said G. I. Dahlberg was arrested; also a letter from J. K. McNeily, chief deputy United States marshal.
Very respectfully,
United States Attorney Southern District Mississippi.
The Attorney-General, Washington, D. C.
Sir: In reply to your request for a statement concerning the imprisonment of Captain Dahlberg in the jail of my county, I beg leave to state that the Captain was [Page 336] brought to my jail on the night of February 10 by Mr. E. Sugden, deputy United States marshal, and assigned to the lower story of the jail, the compartment kept exclusively for white prisoners. He was furnished with a mattress and clean and ample bedding. The Captain’s statement that the jail was filthy and unclean is false. The jail is examined by the members of the board of supervisors each month, and their testimony will bear me out in the assertion that the jail was always well kept and clean.
The criminals the Captain speaks of consisted of one Sam McKinnis, charged with running a “blind tiger,” and, like the Captain, had failed to furnish a bond, and a young man named John Miller, who was serving out a sentence of thirty days for stealing a bicycle. These are the “criminals” in whose company he was placed.
In conclusion I beg to say that the Captain never at any time during his imprisonment complained of the condition of the jail or the treatment received. The Captain was released from my jail by order of Mr. Sugden, deputy United States marshal.
Respectfully,
Sheriff of Harrison County, Miss.
Hon. R. C. Lee,
United States Attorney Southern
District Mississippi, Madison, Miss.
Dear Sir: Replying to yours of the 24th instant, state on the 8th day of February, 1896, a warrant of arrest for G. I. Dahlberg was issued by the clerk and executed by me on the 10th instant, on board the bark Hans, lying at Ship Island. I urged the Captain to make bond, and proposed to go with him to any point in my district for that purpose, which offer was refused. When we landed at Biloxi, the Captain had a conversation with Mr. F. W. Elmer, deputy collector of customs, who advised him to make bail.
Messrs. John E. Johnson and H. C. James offered to make the bond, and advised him to accept it and not to go to jail, but the Captain insisted on being locked up. He was brought to Mississippi City and delivered to the jailor on the night of the 10th, and was released on the morning of the 15th by instruction of the plaintiff’s attorney. In conclusion, the Captain was treated with the utmost courtesy, as a number of reputable persons will testify.
Yours, respectfully,
Capt. J. K. McNeily,
Chief Deputy United States Marshal,
Jackson, Miss.
Sir: lam in receipt of your letter, inclosing copy of letter from the honorable Attorney-General, and in reply respectfully make the following statement and explanation:
On the 8th day of February, 1896, a libel in personam was filed in admiralty by H. M. A. Perttison against G. I. Dahlberg, captain of the Russian bark Hans. After consideration of the matter, having knowledge of the fact that Ship Island was wholly without both the civil and criminal jurisdiction of the State of Mississippi, jurisdiction both civil and criminal having been ceded to the United States by act of legislature in 1858 (which fact disposed of the “imprisonment for debt” feature), and that the rules in admiralty especially prescribed that suits for damages for assaults must be brought in personam only; that the assault was committed at Ship Island, within the jurisdiction of the United States, and, lastly, the fact that the libelant was no longer attached to the vessel but had been discharged by Captain Dalhberg, in my opinion put the matter outside of treaty stipulations.
I filed the libel and issued the warrant of arrest, as prayed for by the rules in admiralty.
I delivered the warrant of arrest to Mr. E. Sugden, United States deputy marshal, who proceeded to execute it. Of course I have no personal knowledge of what transpired from the time Mr. Sugden left here until his return, but I have been told [Page 337] by reliable parties that Captain Dahlberg was treated with great consideration by Mr. Sugden and was repeatedly requested by Mr. Sugden to give bail for his appearance on the 17th and save him (Sugden) the disagreeable duty of putting him in jail, but this he emphatically refused to do. Mr. H. C. James and several other gentlemen voluntarily offered to sign an appearance bond for the Captain, but he refused their offers. The Captain simply courted imprisonment.
After being incarcerated the Captain acted like a maniac, making all sorts of threats, etc., and finally the jailer asked me to go over and talk to him. I did so, and was spoken to very harshly by the Captain after I had offered to do anything in my power to assist him in getting bail. Told him I would assume the responsibility of sending some one with him (the deputy marshal having gone away to serve a writ) to any point in the district to enable him to give bail, and his answer was that he could give bond easily in either Scranton or Biloxi, but that he would not do so, but demanded his unconditional release. This, I told him, was out of my power, and I left him talking in a loud and excited manner.
As for the jail being filthy, that is false. He was placed in the lower part of the jail, which is reserved for white persons only and which is always kept clean, and the criminals he complains of being confined with consisted of a white man who, like himself, was there in default of bail for stealing a bicycle. The jailer’s mother took a mattress with clean and ample bedding from the residence portion of the jail and furnished it to the Captain.
I am entirely ignorant of any habeas corpus proceedings.
On February 18 a motion was filed by libelant’s proctor, praying leave to amend the libel, which was granted, and on same day a citation issued.
In conclusion, I wish to say that I certainly acted without malice in the matter, but simply did what I thought the law required me to do, and have had no reason so far to change my opinion, although libelant has changed his mode of procedure.
If I have made a mistake I am, of course, sorry that it occurred, and can only say that it was an error of judgment. I inclose copies of the different papers referred to.
Hoping that the foregoing will cover the information desired,
I remain yours, very respectfully,
Hon. R. C. Lee,
United States Attorney, Jackson,
Miss.
Sir: Your letter in reference to the arrest and imprisonment of G. I. Dahlberg received.
You will notice that the warrant of arrest was issued by the clerk of the United States court at Mississippi City upon the complaint of Perttison, and commands the marshal to arrest the defendant. The writ contains no notice that the defendant or the libellant is either a Russian subject, and Deputy United States Marshal Sugden proceeded to execute the writ as commanded. By act of the legislature of Mississippi in 1858 the island of Ship Island and adjacent waters was ceded to the United States. The State of Mississippi in 1844 abolished imprisonment for debt, but the locus of the arrest being beyond the jurisdiction of the State court, the State statutes had no application, as the island and its waters are exclusively within the jurisdiction of the Federal court. There is no general statute of the United States repealing imprisonment for debt that I have found, only in reference to those States which have abolished such imprisonment by statute.
In relation to the treaty stipulations between the United States and the Russian Government, I will say that none of the officers of the southern district of Mississippi were advised. This is evidenced by the fact disclosed by the records that the presiding judge allowed the libelant to amend his pleadings and ordered a citation to issue, as in civil proceedings in admiralty in ordinary cases. The deputy marshal having no notice that the defendant, Dahlberg, was a Russian subject, and the writ having been issued under lawful authority, believed it to be his duty and that he was compelled to serve the writ according to its commandments.
There was no illtreatment of the defendant, and the deputy, as shown by his returns, urged the defendant to give his appearance bond, which he declined to do.
Respectfully,
Chief Deputy United States Marshal.
Hon. R. C. Lee,
United States Attorney, Southern District
of Mississippi, Madison, Miss.
Mr. Olney to Mr. de Kotzebue.
Washington, April 18, 1896.
Sir: Referring to your note of the 10th instant and previous correspondence relative to the arrest and detention of Captain Dahlberg, of the Russian vessel Hans, on process issued by the United States district court for the southern district of Mississippi, I have the honor to inclose copy of a letter from the Attorney-General of the United States, transmitting evidence in the case.
Accept, etc.,
(Inclosure from the Attorney-General, April 15, 1896, with inclosures.)
Mr. Olney to Mr. Harmon.
Washington, April 22, 1896.
Sir: I have the honor to acknowledge the receipt of your letter of April 10 replying to mine of March 17 last in regard to the arrest and imprisonment of Captain Dahlberg, master of the Russian bark Hans, by officers of the United States district court for the southern district of Mississippi.
The complaint of the Russian Government in behalf of Captain Dahlberg was that on February 10, 1896, a United States deputy marshal boarded the bark Hans and arrested Captain Dahlberg; that the marshal took Captain Dahlberg to Mississippi City and there confined him in a loathsome and filthy jail in company with criminals, and subjected him to much discomfort and suffering; that throughout the whole period of his confinement, extending from February 10 to February 15, Dalhberg protested against the unlawfulness of his detention and demanded a hearing before a judicial officer; that a bail bond of $1,000 was demanded of him as a condition of his temporary release; that he was given no opportunity to have the lawfulness of his imprisonment inquired into until the Russian consul at Mobile, Ala., intervened and obtained on February 14 a writ of habeas corpus, returnable on the 17th of that month; that on the 15th of February—one day after the writ of habeas corpus had been obtained and two days before the time set for the bearing—the jailer informed Captain Dahlberg that he was free and could leave the jail, without furnishing any explanation of his imprisonment or of his release.
Your letter incloses what purports to be a copy of the court record of the proceedings against Captain Dahlberg. In this record it appears that on the 4th of February, one Perttisen, a seaman of the bark Hans, brought a suit in the district court against Captain Dahlberg for damages, based on allegations of assault and cruel treatment, and in the said libel prayed: “That a warrant of arrest in due form of law, according to the course of this honorable court in cases of admiralty and maritime jurisdiction, may be issued against the said G. I. Dahlberg;” that in pursuance of this libel and prayer a warrant for Dahlberg’s arrest was issued on February 8 by the clerk of the court; that by the marshal’s return on this warrant it was “executed by arresting the within-named G. I. Dahlberg and transporting him to Mississippi City and confining him in jail in default of bond, which he refuses to give this 10th day of February, A. D. 1896;” that on 18th of February the libellant moved to amend his libel by substituting a prayer for a citation in lieu of the prayer for the defendant’s arrest made in the original; that on the same day a citation was issued to the defendant, Dahlberg, admonishing him to appear before the district court on the 2d day of March to answer the said libel, upon which the marshal’s return was “after diligent search not found in my district. This 2d day of March A. D. 1896.”
The record does not show when or how Captain Dahlberg was released from imprisonment. The release does not appear to have been made by any judicial or formal order. It does not appear of record that he was released at all.
In view of these facts, I have the honor to request that you will consider whether Captain Dahlberg was unlawfully imprisoned by the authorities of the United States district court for the southern district of Mississippi, with special reference (1) to the laws which govern the procedure of that court, and (2) to the rights of Captain Dahlberg as master of a Russian vessel under the treaty of December 18, 1832, between the United States and Russia, Article VIII of which provides that “The consuls, vice-consuls, and commercial agents shall have the right, as such, to sit as judges and arbitrators in such differences as may arise between the captains and crews of the vessels belonging to the nation whose interests are committed to their charge [Page 339] without the interference of the local authorities, unless the conduct of the crews or of the captain should disturb the order or tranquillity of the country, or the said consuls, vice-consuls, or commercial agents should require their assistance to cause their decisions to be carried into effect or supported. It is, however, understood that this species of judgment or arbitration shall not deprive the contending parties of the right they have to resort, on their return, to the judicial authority of their country.”
If you should arrive at the conclusion that this complainant was unlawfully imprisoned, I should be glad to have a suggestion from you which I may use in replying to his Government as to the legal practicability of his obtaining redress in the courts of the United States. As the law now stands he can not bring suit against the Government for alleged tortious misfeasance of an officer of the Government. If the sureties of the officers concerned in the arrest and imprisonment are liable in case the arrest and imprisonment were unlawful, I should be glad to know it.
I have, etc.,
Mr. Conrad to Mr. Olney.
Washington, D. C., April 28, 1896.
Sir: I have the honor to acknowledge the receipt of your letter of the 22d instant, in regard to the arrest and imprisonment of Captain Dahlberg, master of the Russian bark Hans, by officers of the United States district court for the southern district of Mississippi.
You request me to consider whether Captain Dahlberg was unlawfully imprisoned by the authorities of the United States district court, with special reference to the laws which govern the procedure of that court, and the rights of Captain Dahlberg under the treaty between the United States and Russia.
In order to a more intelligent consideration of the questions than the meager reports received from the officers of the United States district court will allow, I have caused one of the examiners of this Department to visit the places of the arrest and imprisonment of Captain Dahlberg, to interrogate the United States officers concerned in the arrest and imprisonment, to elicit all the information that can be obtained, and to make full and speedy report of the result of his investigations.
On the receipt of this report I shall without delay consider the questions indicated by you, and forward to you the conclusions to which I may be brought.
I have, etc.,
Mr. Olney to Mr. de Kotzebue.
Washington, May 1, 1896.
Sir: Referring to your note of the 10th ultimo, in regard to the complaint of Captain Dahlberg, of the Russian bark Hans, I have the honor to say that the Department of Justice has appointed an examiner to collect the evidence necessary to ascertain whether Captain Dahlberg was unlawfully imprisoned, and whether his rights growing out of the treaty between the United States and Russia were violated.
Accept, etc.,
Mr. Conrad to Mr. Olney.
Washington, D. C., May 20, 1896.
Sir: In my letter to you of April 28, 1896, in regard to the arrest and imprisonment of Captain Dahlberg, master of the Russian bark Hans, by officers of the United States district court for the southern district of Mississippi, I stated that I had caused one of the examiners of this Department to visit the places of the arrest and imprisonment of Captain Dahlberg, to elicit all the information that he could obtain on the subject and make full report of the result of his investigation.
[Page 340]I beg to hand you herewith a copy of the report of Mr. Willoughby Newton, the examiner of this Department who was sent to conduct the investigation, which was received here on yesterday.
From this report it would seem that the arrest and imprisonment and detention of Captain Dahlberg were altogether without authority of law, and that personal liability rests upon each of the individuals who were concerned in his arrest and imprisonment.
The action of Phelps, deputy clerk of the United States court, in issuing the warrant of arrest was without legal right or authority, and both the clerk, Moseley, and the deputy, Phelps, are each liable on their official bond for breach of the conditions thereof.
The action of the deputy marshal, Sugden, in arresting Captain Dahlberg, in detaining him, and in imprisoning him in jail was without authority of law, and subjects the United States marshal, McNeeley, and the deputy, Sugden, severally, to personal action for the trespass committed by them.
C. S. Merriwether, the attorney for the plaintiff, appears to have procured the issuance and the execution of the warrant of arrest, and he also is liable to a personal action for false imprisonment.
The sheriff, Hughes, who was keeper of the jail at Mississippi City, and who received Captain Dahlberg from the deputy marshal, and confined him in his jail and detained him there, and released him on the request of Merriwether, the attorney for plaintiff, appears to have acted throughout without color of authority, and he also is personally liable.
The liability of each of these persons, in damages, for the wrong committed by them, respectively, is to Captain Dahlberg himself, and to no one else.
The officers of the United States court who were concerned in the wrongdoing are liable to such punishment as the Government may be authorized to impose, extending to their removal from office.
The cause of action set up by the plaintiff, Perttison, in his complaint, appears to have grown out of a difference which had arisen between Captain Dahlberg, as master of the Russian bark Hans, and Perttison, as one of the crew of that bark, and consequently was one of those “differences” referred to in Article VIII of the treaty of December 18, 1832, between the United States and Russia, as to which the “consuls, vice-consuls, and commercial agents shall have the right as such to sit as judges and arbitrators * * * without the interference of the local authorities,” etc.
While that treaty remains in force the courts of this country would seem to be without jurisdiction to entertain and adjudicate a cause of action originating under such circumstances.
There can be no doubt, in my opinion, that Captain Dahlberg has a just and complete cause of action against each of the persons above named who were concerned in his arrest and imprisonment, and have no doubt but that such cause of action can be successfully maintained and adequate recovery had by recourse to the courts of the country.
Very respectfully,
Sir: Referring to your instructions of the 1st instant relative to the arrest and incarceration of Capt. G. I. Dahlberg, master of the Russian bark Hans, while at anchor at Ship Island, southern district of Mississippi, I have the honor to report that I have examined carefully into said matter and find that Captain Dahlberg was arrested on board his ship, the Russian bark Hans, on February 10, 1896, by United States Deputy Marshal Edward Sugden, on a warrant of arrest regularly addressed to the United States marshal of this district, “commanding said marshal to arrest G. I. Dahlberg and to keep him under safe and secure arrest, so that he may be forthcoming before the judge of the United States district court for said district at Mississippi City on the 17th day of February, 1896, there to answer unto H. M. A. Perttison in a cause of damages, civil and maritime,” said warrant dated February 8, 1896, and signed “L. B. Moseley, clerk, per C. Phelps, D. C.”
This writ was issued by United States Deputy Clerk C. Phelps without the authority, direction, or even the knowledge of H. C. Nies, judge of the United States district court, southern district of Mississippi, was executed by United States Deputy Marshal E. Sugden on February 10, 1896, by arresting G. I. Dahlberg, master of the Russian bark Hans, carrying him to Mississippi City, and confining him there in jail in default of bond, which Captain Dahlberg refused to give.
[Page 341]The penalty of the bond required of Captain Dahlberg was fixed by Deputy Marshal Sugden and C. S. Meriwether (of Stranton), attorney for the plaintiff, Perttison, at $1,000.
Captain Dahlberg was kept in jail until February 15, 1896, when he was released unconditionally by Deputy Marshal Sugden, upon the request and at the suggestion of C. S. Meriwether, attorney for the plaintiff, Perttison, in an irregular manner and without any formal discharge from any source whatever. I have been unable to find any mittimus committing Captain Dahlberg to the jail at Mississippi City. Sheriff Hughes informed me that there was a mittimus committing Dahlberg, but he has made diligent search among his jail records and has been unable to show me anything of the sort. The fact is, there was no mittimus, and the prisoner Dahlberg was received at the jail without any commitment of any sort or kind whatever. I have carefully examined the court minutes, dockets, etc., and find that there is not a line or a scratch of a pen relative to the arrest, imprisonment, or release of Captain Dahlberg, not a word on said records relative to Dahlberg or the plaintiff, H. M. A. Perttison.
Deputy Clerk Phelps informs me that he was not directed or authorized by anyone to issue the writ for the arrest of Dahlberg, master of the Russian bark Hans, lying at Ship Island, southern district of Mississippi, but that he did it of his own violition and on his own responsibility, thinking that the issuance of such a writ by him was legal, proper, and in the line of his duty as deputy clerk, acting for L. B. Moseley, clerk of the United States district court, district of southern Mississippi. He could refer me to no United States statute authorizing such a procedure on his part.
H. C. Nies, judge of the United States district court in this district, knew nothing of the issuance of the warrant of arrest by Deputy Clerk C. Phelps and the proceedings thereunder until some time after the arrest and imprisonment of Captain Dahlberg, when habeas corpus proceedings were commenced by T. V. Noland, Dahlberg’s attorney, for the release of Captain Dahlberg.
Deputy Marshal Sugden informs me that he was not authorized by any court, or by anyone else having authority, to release Captain Dahlberg from jail, but did it because C. S. Meriwether, attorney for plaintiff, requested him to release him, and he supposed that as the plaintiff, Perttison, was the interested party it would be right and proper for him to release the prisoner on the request of the plaintiff’s attorney.
This was the most extraordinary, irregular, illegal, and unprecedented proceedings from start to finish, and all parties concerned should, in my opinion, be held to the strictest accountability for same.
As to financial standing of parties concerned: United States Clerk Moseley lives at Jackson; is a man of very moderate means; his official bond is good.
United States Marshal McNeeley lives at Vicksburg, and he is a man of considerable property; his official bond is believed to be good.
Deputy Clerk C. Phelps lives at Mississippi City; owns his house and nothing more; gives no official bond to the clerk. Deputy Marshal Sugden is worth nothing.
C. S. Meriwether, attorney for plaintiff, is worth nothing.
Sheriff George Hughes is worth considerable property; his official bond as sheriff, $20,000, is said to be good.
Very respectfully,
Examiner, Department of Justice.
The Attorney-General, Washington, D. C.
Mr. Olney to Mr. de Kotzebue.
Washington, May 23, 1896.
Sir: In my note of the 1st instant I informed you that the Department of Justice had appointed an examiner to collect the evidence necessary to ascertain whether Captain Dahlberg was unlawfully imprisoned, and whether his rights under the treaty between the United States and Russia were violated.
I have now the honor to inclose herewith copy of the examiner’s report, and of the Attorney-General’s letter of transmittal. The conclusion of the Department of Justice is that the arrest, imprisonment, and detention of Captain Dahlberg were altogether without authority of law, and that he has a just and complete cause of action against each of the individuals concerned therein, which, in its opinion, can be successfully maintained, and adequate recovery had by recourse to the courts of the country.
Accept, etc.,
(Inclosure: From the Attorney-General, May 20, 1896.)
Memorandum of Russian Imperial legation.
Captain Dahlberg was arrested the 10th February, 1896, on his ship Hans, being 13 miles from shore, near the island Ship Island, on the Mississippi.
Letter of the Secretary of Justice to the Secretary of State from 20th May, 1896: “From this report it would seem that the arrest and imprisonment and detention of Captain Dahlberg were altogether without authority of law,” etc.
The action of Phelps, deputy clerk of the United States court, in issuing the warrant of arrest was without legal right and authority. Article VIII of the treaty of December 18, 1832, between the United States and Russia, as to which the consuls, vice-consuls, and commercial agent shall have the right to sit as judges and arbitrators, * * * without the interference of the local authorities.
This was the most extraordinary, irregular, illegal, and unprecedented proceeding from start to finish, and all parties concerned should, in my opinion, be held to the strictest accountability for same. (From the same letter of the Department of Justice.)
Mr. Sherman to Mr. McKenna.
Washington, June 24, 1897.
Sir: Referring to a letter from your Department of May 20, 1896, I now have the honor to say that on the 17th instant the chargé d’affaires ad interim of Russia called at the Department and made inquiry concerning the arrest and imprisonment of Capt. Gustaf Isak Dahlberg, master and principal owner of the Russian bark Hans, while at anchor at Ship Island, Mississippi, February 10, 1896.
I have made a thorough examination of the complaint and find that the letter of Mr. Conrad’s of May 20, 1896, presents it in detail upon an examination and report by an examiner of your Department. Mr. Conrad’s conclusion is to the effect that the arrest, imprisonment, and detention of Captain Dahlberg were altogether without authority of law, and that personal liability rests upon each of the individuals who are mentioned by name and who were concerned in his arrest and detention. Each of these individuals, with the exception of G. S. Meriwether, the plaintiff’s attorney, who, also regarded as “liable to a personal action for false imprisonment,” is an officer of the United States; and adds Mr. Conrad, “The officers of the United States courts who were concerned in the wrongdoing are liable to such punishment as the Government may be authorized to impose, extending to their removal from office.”
I am convinced from a reading of the letter of Mr. Conrad that the action of the officials concerned constitutes a flagrant outrage upon the person of Captain Dahlberg and a violation of the treaty concluded with Russia December 12, 1832. While your Department is technically correct in referring Captain Dahlberg to the courts of this country, in which it is thought adequate recovery may be obtained against each of the individuals, yet, as the Russian Government does not think that Captain Dahlberg should be so remanded to the courts, which opinion I share, I am disposed to tender to him, through the Russian chargé d’affaires, the sum of $1,000 in full satisfaction of his claim. Before making the tender, however, I would be glad to have your views upon the subject. Besides the money consideration, which I think ample on account of his arrest, imprisonment, and detention for five days, I suggest that the Federal officers concerned in this vexatious and unwarranted proceeding be immediately dismissed from their positions. If this is done, it will prove a salutary lesson and possibly prevent a recurrence of like acts in the future.
Awaiting your reply before addressing Mr. de Wollant upon the subject,
I am, respectfully, yours,
Mr. McKenna to Mr. Sherman.
Washington, June 30, 1897.
Sir: I beg to acknowledge the receipt of your communication of the 24th instant, in which, after referring to the arrest and imprisonment ol Captain Dahlberg, master of the Russian bark Hans, while at Ship Island, Mississippi, you say that you are [Page 343] “disposed to tender Captain Dahlberg, through the Russian chargé d’affaires, the sum of $1,000, in full satisfaction of his claim;” but you express the wish to have my views on the subject before making the tender.
You suggest “that the Federal officers concerned in this vexatious and unwarranted proceeding be immediately dismissed from their positions.”
As the tender by you of $1,000 to Captain Dahlberg presents no question of law arising in the administration of your Department, I regret that I am not allowed to aid you by the expression of an official opinion on the subject.
And with regard to the suggestion as to the dismissal of the Federal officials who appear to have been connected with the assault upon Captain Dahlberg, I beg to say that the matter shall have prompt attention.
Very respectfully,
Mr. Sherman to Mr. de Wollant.
Washington, July 8, 1897.
Sir: Referring to your recent visit to the Department, I have now the honor to say that since that time I have had the case of Capt. Gustav Isak Dahlberg, master and principal owner of the Russian bark Hans, who was arrested while at anchor at Ship Island, Mississippi, February 10, 1896, fully examined in the light especially of the letter of the Acting Attorney-General of May 20, 1896, to which you then called my attention. It is unnecessary to repeat the statements touching Captain Dahlberg’s arrest, which were admittedly without warrant of law. He was discharged from custody February 15, 1896. Taking into consideration the fact that Captain Dahlberg has his remedy in the courts of this country against the individuals concerned in his arrest, and where adequate recovery may, in the opinion of the Acting Attorney-General, be had against each one of them, I have, by direction of the President, to tender to Captain Dahlberg, through yourself, the sum of $1,000 in full satisfaction of his complaint.
I make this tender without thereby assuming liability on the part of the Federal Government, although I may observe that, according to a letter from the Attorney-General of the 30th ultimo, that officer has promised to give immediate attention to my suggestion that the Federal officials who may have been connected with the assault upon Captain Dahlberg be dismissed from the service.
Awaiting your pleasure as to the acceptance by Captain Dahlberg of the amount so tendered, I beg you to accept, etc.,
Mr. de Wollant to Mr. Sherman.
Sir: Referring to the case of Capt. Gustaf Isak Dahlberg, master and principal owner of the Russian bark Hans, who was arrested while at anchor at Ship Island, Mississippi, February 10, 1896, I have the honor to inform your excellency that your note of July 8, 1897, has been duly forwarded through the foreign office at Petersburg to Capt. Gustaf Dahlberg.
Considered that his arrest without warrant of law and his detention until February 15 has been the cause of great pecuniary losses, Captain Dahlberg declares that he can not be satisfied with the sum of $1,000, tendered by your excellency. In his claim Captain Dahlberg points out he was obliged to find and pay another captain to bring the ship to Europe. The money paid to the lawyers, traveling expenses of the said captain, the loss of time, and disturbance in his money affairs amount to $5,000.
Captain Dahlberg claims that, having been arrested by the duly appointed authorities in the name of the President of the United States, his claim can not be directed against the individuals concerned in his arrest, they having acted not as private persons but in their official capacity. Not having the necessary means, he considers the advice to find remedy in the courts of this country as a refusal of justice.
Considering, for my part, that cases like the unlawful arrest of Captain Dahlberg can not have a favorable influence on the commercial relations of our respective countries, on our tradesmen and people engaged in the shipping business, I will feel [Page 344] very much obliged to your excellency if you will reconsider the matter and give it your fullest attention in order to bring it to the best possible solution.
Awaiting your pleasure, I beg you to accept, dear sir, the renewed assurances of my highest consideration.
Mr. Sherman to Mr. de Wollant.
Washington, December 18, 1897.
Sir: I have the honor to acknowledge the receipt of your note of the 2d instant in regard to the claim for damages presented by Captain Dahlberg, master and principal owner of the Russian bark Hans, based on a wrongful arrest and imprisonment.
In reply I have the honor to say that the Department is disposed to lay the claim before Congress, if an agreement can be first reached as to a reasonable indemnity to be recommended to that body.
Accept, etc.,
Mr. de Wollant to Mr. Day.
Washington, March 27 (April 8), 1898.
My Dear Mr. Day: Referring to our yesterday’s conversation in regard to the claim of Capt. G. E. Dahlberg and to your proposal of recommending to Congress an indemnity of $5,000 for Captain Dahlberg, I have the honor to state that I am authorized by my Government to give my consent to this arrangemeut.
Very truly, yours,
Mr. Day to Mr. de Wollant.
Washington, April 14, 1898.
My Dear Sir: I have to acknowledge the receipt of your note of the 8th instant, stating that you are authorized by your Government to accept the proposal made by the Department to transmit to Congress the claim of Captain Dahlberg, master and principal owner of the Russian bark Hans, based upon a wrongful arrest and imprisonment, the Department recommending the appropriation of $5,000 to indemnify him for all damages suffered and losses incurred.
In reply I have to say that as soon as the papers in the case can be copied the claim will be transmitted to Congress and the appropriation of the indemnity recommended.
Very truly, yours,