Mr. Seward to Lord Lyons.
My Lord: I have now the honor, by the President’s direction, to reply to the note with which I was favored by your lordship on the 29th of October last, in relation to the steamer General Rusk, alias the Blanche.
In performing this duty it seems to me necessary to do little more than to extricate the argument presented in the note concerning that case which I had the honor to address to your lordship on the 4th of August last from the misapprehension thrown over it by her Majesty’s government.
Your lordship, referring to that communication, observes as follows: “Your note states that Commodore Hunter has been visited with the censure of the United States government for having intentionally violated the maritime jurisdiction of Spain; but it alleges that this outrageous and indefensible proceeding on the part of a United States officer imposes no obligation on tne government of the United States to indemnify those upon whom that officer, acting in the name and under the flag and authority of this government, has inflicted a very grievous injury.”
If your lordship will do me the favor to recur to my communication of the 4th of August,* you will find that what I did say in that communication on the point thus raised was as follows: “The undersigned admits, as he has always heretofore admitted, that it has been established upon satisfactory evidence that Commodore Hunter intentionally violated the maritime jurisdiction of Spain, for which he has deservedly received the censure of the government of the United States, as her Majesty’s government has truly shown; nevertheless, the undersigned cannot admit that that intentional wrong, committed by a subordinate naval agent of this government against the sovereignty of Spain, has created or at all affects any liability against the United States to indemnify the alleged master and owners of the steamer General Rusk and her cargo beyond the injuries [Page 498] which the officers and crew of the United States war steamer actually inflicted upon the vessel and cargo.”
After having submitted this correction to your lordship, I must be allowed to say that it was quite unnecessary for her Majesty’s government to reply, as they do, through your lordship’s note now before me, that the censure of Commodore Hunter, or even his dismissal from the United States navy, for a gross and deliberate violation of international law, can constitute no substantial redress to the owners of the Blanche (thereby meaning the General Rusk) and of her cargo.
The argument of my note of the 4th of August was, that the steamer General Rusk and her cargo were not British or neutral property, but property of citizens of the United States; that her officers and crew were not British subjects,, but insurgent American citizens, and that the destruction of the vessel and cargo by fire was an act of barratry committed by said officers and crew, and not at all the act or a consequence of any action of the officers and crew of the United States steamer Montgomery; and upon a survey of these grounds I ventured the statement which I have already quoted from my said note, that the act of intentional violation—by the commander of the Montgomery—of the sovereignity of Spain neither created nor affected any liability on the part of this government to indemnify the officers and owners of the General Rusk.
I very cheerfully admit that there is a marked and manifest conflict of testimony in the facts on which I thus insisted. In deference to the opinion of her Majesty’s government which you have expressed, I have very cheerfully reviewed the evidence with the aid of the arguments by which you have sustained that opinion, but I am obliged to confess that this examination has not resulted in working any change of the conviction which was expressed by me in my former communication. Certainly, I cannot admit, as your lordship would seem to require, that the original protest which was made before the British consul at the Havana on the 10th of October, 1862, although it does not state who set fire to the Blanche, (otherwise called the General Rusk,) ought, in the peculiar circumstances of the case, to satisfy this government that the firing of the ship was either the act of the wrong-doer himself, (Commodore Hunter is supposed to be indicated,) or the consequence of his aggression. On the contrary, I am not able to discern anything in the legal or moral form of an ex parte protest which entitles it to outweigh the controverting judicial evidence which has been taken by this government in a manner the most open, fair, and solemn which it could adopt. 1 fail also to perceive the peculiar circumstances which are supposed by your lordship to increase the legal value of the protest.
It was far from any purpose of mine, in my former note, to intimate that her Majesty’s government, or even the claimants, were under any obligation to attend the court-martial before which the transaction of the burning of the General Rusk was investigated, much less to intimate that they are concluded by default of such attendance in court, from contesting every word of testimony that was taken on that occasion. At the same time I hope it may be permitted to me to regard that evidence as the fullest and best which it has been within the power of this government to obtain in its very earnest efforts to ascertain the truth of the facts upon which a solution of the question between the two governments depends.
I regret that another part of my note of the 4th of August has been misapprehended as much as the portions which I have already cleared up. Referring to that part of my note in which I stated that the sale of the General Rusk was open to suspicion on the ground of fraud, notwithstanding the formalities which attended it. Your lordship quotes from me as follows: “And further on in your note it is stated that the judge of the United States for the southern district of Florida has recently decided in two cases very similar in their circumstances, namely, that of the Emma and her cargo, and that of the Florida, that such a transfer, though apparently regular, is in point of fact collusive, and, therefore, [Page 499] a fraud upon the belligerent rights of the government under the law of nations.” Having made this quotation, you observe “that her Majesty’s government find it difficult to suppose that the judgments in the cases mentioned can affect the demand made by them for compensation to the owners of the Blanche (otherwise the General Rusk) and her cargo.”
I feel quite sure that upon a re-examination of my note your lordship will perceive that I alleged that the sale of the General Rusk at Havana was made in fraud, although it was attended with certain legal formalities, and that I referred to the before-recited decisions of the court in Florida for the purpose o showing that a sale of a vessel in a foreign port, though apparently regular and made with due legal formalities, may, nevertheless, be impeached on the ground of fraud. Certainly,.I did not contend that the judgments rendered by the court in those cases have any direct bearing on the decision to be made in the present case.
If I understand your lordship correctly, her Majesty’s government admit the competency of a court of admiralty to rule in a prize case, in the manner and to the effect that. I have stated the ruling of the prize court in Florida. But your government contend that the claim of the Queen of Spain upon the United States for indemnity to the master and owners of the General Rusk would not be affected by the fact, even if it were conceded that the title of the master and owners in that vessel was fraudulent and void as against the United States within their own jurisdiction or upon the high seas.
Differing not without diffidence from the view thus taken by her Britannic-Majesty’s government, I must be allowed to insist that, in my judgment, the same principles of justice and the same rules of evidence prevail in the cabinets of sovereigns which are recognized in courts of justice.
Apparently taking exceptions to the statement in my note, that the General Rusk was notoriously an American vessel, your lordship declines to receive it in the place of proof. I confess that making this statement by the authority of this government, I did suppose that it would be considered at least as support in regard to a collateral fact, knowledge of which might be presumed to be in the possession of this department. But I cheerfully accept the correction, and I therefore have now tne pleasure of supplying the documentary evidence, which I trust will be sufficient to prove that the General Rusk was originally an American vessel. I can hardly think it necessary to pursue this branch of the case further on the present occasion, and I cheerfully rest upon my former argument, together with this proof, until her Majesty’s government shall show how by a sale in Havana the pretended neutral acquired titled to a vessel, which, so far as we have any evidence of legal title, belonged to citizens of the United States by whom it has never been lawfully sold or conveyed.
In conclusion, I beg leave to remind your lordship that, as the facts are understood by this government, Great Britain seems to the United States to be involuntarily insisting that, under the shield of an appeal for satisfaction to the Queen of Spain for a national grievance and insult for which this government has given all honorable satisfaction, the United States shall pay a band of insurgents against their authority for a ship and cargo to which they had no lawful title, and which they themselves criminally destroyed with their own hands within the waters of Spain, where they had taken refuge from lawful pursuit, by the naval forces of their country.
I have the honor to be, with high consideration, sir, your lordship’s obedient servant,
Right Hon. Lord Lyons, &c., &c., &c.
- 38th Congress, 1st session, House Ex. Doc. No. 1, page 685.↩