Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the First Session Thirty-ninth Congress
Mr. Adams to Mr. Seward
Sir: In my despatch No. 1011, of the 13th instant, I made a report of the proceedings I had authorized the consul at Liverpool to commence in relation to certain property of the rebels believed to be lying in the port of Liverpool, with a view to get possession of it on behalf of the United States. Since that date Mr. Dudley has obtained the aid of the highest professional advice, as I desired. The opinions given were so unequivocal, that I have directed the further steps to be taken as pointed out by the distinguished counsel. I have the honor to transmit copies of the consul’s letters and of the legal opinions. It will be perceived that the claims have been gradually extended so as to embrace much more property than was originally in contemplation. In this process I have gone rather faster than I intended at the outset. But as the law is proverbially slow, I fancy there will still be time to learn the wishes of the government, before we get very far towards a decision.
I have the honor to be, sir, your obedient servant,
Hon. William H. Seward, &c., &c., &c.
[Enclosures.]
1.Mr. Wilding to Mr. Adams, July 11, 1865.
2. Mr. Dudley to Mr. Adams, July 14, 1865.
3. Legal opinions of Dr. Twiss and Mr. Lush—cotton by the Aline—July 12 and 13, 1865.
4. Mr. Druce’s opinion on the same, July 13, 1865.
5. Bills of entry of Aline’s cotton.
6. Dr. Twiss and Mr. Lush—the Rappahannock or Beatrice—July 12 and 13, 1865.
7. Mr. Wilding to Mr. Adams, July 17, 1865.
8. Dr. Twiss and Mr Lush—Tallahassee—July 14, 1865.
9. The same on the Sumter, July 14, 1865.
10. Mr. Wilding to Mr. Adams, July 18. 1865.
11. Harvey, Jervis & Ryley, on McDowall and Halliday’s course about the cotton, July 18, 1865.
Mr. Wilding to Mr. Adams.
Sir: I beg to acknowledge the receipt of your letter of the 10th instant.
In compliance with the directions contained in it, I have instructed Messrs. Harvey, Jervis fe Ryley to submit the cases of the Beatrice and the cotton on board the Aline for the opinion of counsel immediately.
In the mean time, the Aline having arrived to-day, I am advised that it will be advisable to -serve notices on the master, consignee, &c. of the vessel, and the consignees of the cotton I have also instructed Messrs. Harvey & Co. to submit as separate cases the cases o the Sumter and Tallahassee, now here, but to proceed no further with respect to them until further instructed.
Very respectfully, I am, sir, your obedient servant,
His Excellency Charles Francis Adams, &c., &c., &c.
Mr. Dudley to Mr. Adams
Sir: I have the honor to enclose you copies of the opinions of the counsel who have been retained in the case of the cotton brought here, and supposed to be the property of the so-called, but now defunct, confederate government, and of the steamer Rappahannock, now called the Beatrice.
It is proper for me to inform you, in connexion with the opinions about the cotton, that Malcomsons, the consignees of the ship, have informed my attorneys that they have no interest in the cotton itself, further than to secure the freight. My attorneys have also been informed that Frazer, Trenholm &Co. claim it all but one hundred and two bales, which are claimed by McDowall & Halliday. These parties—I mean Messrs. Frazer, Trenholm &, Co., and McDowall & Halliday have given notice to the consignees of the vessel of suits to recover the possession of this cotton. My attorneys are of the opinion that we should commence a suit in chancery immediately, and say, from the new state of facts brought out by our notices, counsel will advise this course. I have, therefore, instructed them to commence it.
The counsel are of the opinion that the steamer Rappahannock now belongs to the United States, and recommend me to institute a suit in the admiralty court of this country to recover the possession. Shall I do it ?
I am, sir, very respectfully, your obedident servant,
Hon. Charles F. Adams United States Minister, London.
[Enclosure No. 3.]
Ex parte.—The United States Consul at Liverpool.
THE ALINE.
Counsel are requested to advise the United States consul—
1. Whether the cotton brought by the Aline now belongs to the government of the United States.
2. If it do, what steps, whether by bill in chancery for an injunction or by suit in admirality or otherwise, should be taken to substantiate the claim and obtain possession of the cotton until the United States government shall have the opportunity of acting in the cas0065
3. Generally to advise the United States consul on his position in the matter, and the course he should pursue.
Opinion of Dr. Twiss, Q. C.
1. If the cotton was shipped at Havana as belonging to the rebel government, I should hold it to be now the property of the United States, to whom all the proprietary rights of the rebel government have devolved upon its submission to the legitimate government.
2. I cannot advise any proceeding to be instituted against the cargo in the admiralty court. The safer course would be to apply to the court of chancery for an injunction against the delivery of the cargo to any person without the consent of the United States, as the lawful owners thereof. Meanwhile a bill may be filed, setting forth the title of the United States, and praying for a decree that the cargo should be delivered up to them.
Doctors’ Commons, July 13, 1865.
TRAVIS TWISS.
Opinion of Mr. Lush, Q. C.
1. Assuming the fact as stated to be capable of proof, I am of opinion that it does.
2. I advise the United States consul to file a bill in chancery to restrain the sale or delivery of the cotton, and for restitution of it to the United States government.
The Aline.—Opinion of Mr. Druce.
1. It appears from the statements of the consul in the letter of June 13, 1865, that the cotton by the Aline belonged to the late confederate government, and was shipped by their agent to consignees, and I presume for sale in this country, and that it has since been ceded, on the termination of the war, to the government of the United States. Under these circumstances I am of the opinion that the cotton belongs to the government of the United States.
2. Assuming the fact stated in’ this case to be substantiated, it would seem that the cotton is now held by the consignees as the agents, and on behalf of the government of the United States, and a bill would in my opinion lie in the name of the President, as plaintiff, against the consignees, and shipped to Ramsay, in a court of equity, ‘to restrain the consignees from selling the cotton, or parting with the bill of lading. The affidavit of the consul at Liverpool verifying the letter of the 13th June, and his belief that the statements contained in it and in the bill to be filed are true, would, I think, be sufficient to support an application for an injunction, unless the allegations in the bill were displaced by the affidavit of the consignees. I apprehend, however, that trover might also be maintained at law, against the consignees, if they improperly withheld or converted the goods.
3. Under these circumstances, it is a question of policy whether a bill should be filed or not. If the writ could be maintained in the name of a private individual I should not have-hesitated to recommend a bill; but as any bill must, if filed, be filed in the name of the President, it would very probably be deemed objectionable on his part, as a foreign power, to resort to a court of equity, unless success was certain; and the meagre nature of the evidence which can be at present adduced must leave the issue of an application which may be opposed by the affidavits of the consignees open to considerable doubt.
As at present advised, I should, be disposed to recommend the consul not to file a bill, but to serve a notice on the consignees stating that the cotton is the property of the United States government, and requiring them not to sell it, or part with the bill of lading, or, if already sold, not to part with the proceeds, without the sanction of the United States government, and intimating that if they act in disregard of the notice they will be held responsible for the consequences.
A copy of the notice should also be served on the master of the Aline. Possibly the consignees may insist on a right to sell the cotton, to cover advances; and if so, it might be prudent [Page 421] to allow the cotton to be sold, the proceeds being secured, to meet the claim of the United States government.
It appears to me that the court of admiralty can have no jurisdiction over the cargo at the suit of the government of the United States of America.
[Enclosure No. 5.]
BILL OF ENTRY OFFICE, CUSTOM-HOUSE, LIVERPOOL.
N. B.—This is the only office authorized to furnish information to the public in manuscript from the official records of the customs.
Aline, from Havana.—J.&D. Malcomson & Co., September 12, 1865.
R. M. 102 bales cotton, McDowall & Halliday.
R. M.—C. J. H. 200-bales cotton, order.
(B. M. C.) 37 bales cotton, order.
(D.) & C. J. H. 242 bales cotton, order.
(L.) & (S.) T. 165 bales cotton, order.
(X.) & (E. M. C. S.T.) 6 bales cotton, order.
C. J. H. 178 bales cotton, order.
(S.) C. J. H. 58 bales cotton, order.
(B. M. C.) S. T. 20 bales cotton, order.
(W.) C. 100 bales cotton, order.
(M. N. S. T.) 52 bales cotton, order.
(C.R.) 45 bales cotton, order.
25 bales cotton, order.
P. M. & B. M. C. 19 bales cotton, order.
R. & B. M. C. 6 bales cotton, order.
(N.& H. B. 100 bales cotton, order.
(C) 3 bales cotton, order.
[Enclosure No. 6.]
The Beatrice, (otherwise called the Rappahannock,)
Counsel are requested to advise the United States consul at Liverpool— 1. Whether, under the circumstances, he can institute any, and what, proceedings for the Agrrest of the Beatrice, and the course he should adopt to substantiate the claims of his government.
Opinion of Dr. Twiss, Q. C.
I am of opinion that the United States consul, as public officer entitled to represent the interests of the United States, should take out a warrant of arrest against the Beatrice in a cause of possession, on behalf of the United States, as the lawful and sole owners.
The Beatrice having been purchased in England with public funds, and for public purposes, by certain citizens of the United States who were in a state of rebellion against the United States, and had usurped for some time the functions of government, must be taken to have been acquired by the usurping government for the benefit of the legitimate government, which has succeeded in putting down the rebellion, and is entitled to the benefit of all the acquisitions made by the usurping government.
Doctors’ Commons, July 13, 1865.
TEAVIS TWISS.
Opinion of Mr. Lush, Q. C.
I am of opinion that the Beatrice belongs to the United States, whether she has in fact been sold or not, and I advise the United States consul, with a view to prevent her departure and procure her restoration to his government, to institute a suit for possession in the court of admiralty.
Mr. Wilding to Mr. Adams
Sir: By direction of Mr. Dudley, I herewith enclose copies of the opinions of counsel in the cases of the Tallahassee and Sumter.
Referring to my letter of yesterday, I sent you a telegram this morning informing you that Thompson left here by the 9 o’clock train, this morning, for London; intends shopping at Fischer’s hotel, Clifford street, and proceeding to France to-morrow.
Very respectfully, I am, sir, your obedient servant,
His Excellency Charles Francis Adams, &c., &c., &c., London,
[Enclosure No. 8.]
THE CAMELEON.
Counsel are requested to advise the United States consul at Liverpool—
1 Whether he can institute any, and what, proceedings for the attachment of the Cameleon.
2. And, generally, as to his position with regard to the Cameleon, and the course he should adopt to substantiate the claim of his government.
Liverpool, July 11, 1865.
Opinion of Dr. Twiss, Q. C
Assuming that the Tallahassee was a vessel purchased by the agents of the late rebel government with the public moneys for public purposes, I am of opinion that these public moneys were the property of the legitimate government which has succeeded inputting down the rebellion, and that they are entitled to follow their property by what has been termed the doe-trine of ear-mark, and that they may arrest the vessel in a cause of possession to be instituted; in the admiralty court.
I may observe that the legal position of the government of the United States in respect of any ships purchased by the rebel government with the public moneys is stronger than their position would be in regard to the ships of a foreign state conquered by them in war. In the latter case the title of the United States against the ships of the conquered states would be founded on capture, and could only be asserted in respect of ships which were found within the ports of the conquered state at the time of conquest. Whereas, in the case of a rebellion, when the legitimate government has succeeded in putting it down, any ships which the usurping government may have purchased with public moneys must be taken to have been purchased for the legitimate government, and the property in them, wherever they may be, to have vested in that government upon its reinstatement.
Doctors’ Commons, July 14, 1865.
TRAVIS TWISS.
Opinion of Mr. Lush, Q. C.
1. I am of opinion that this vessel has become the property of the United States, and that the United States consul may, on behalf of his government, take proceedings for its delivery to him.
2. My opinion is, that the court of admiralty has jurisdiction to determine this question; and although other courts may be resorted to, I advise the consul to apply to that tribunal, as it has the power to arrest the vessel at once and hold it pendente lite.
[Enclosure No. 9.]
Ex parte.—The consul of the United States at Liverpool,
THE GIBRALTAR.
Counsel are requested to advise the United States consul at Liverpool—
1. Whether he can institute any, and what, proceedings for the attachment of the Gibraltar.
2. And, generally, as to his position with regard to her, and the course he should adopt in the matter.
Liverpool, July 11, 1865.
[Page 423]Opinion of Dr. Twiss, Q. C.
If by the term privateer, which occurs in the fifth line of the case, it is meant that the Sumter was privateer property, different considerations of law would apply to this vessel from those which govern public vessels. But as the word privateer has been stricken out of the second line of the Case, I shall assume that the Sumter was purchased by the agents of the rebel government with public moneys, and that by the doctrine of ear-mark possession of the property of the legitimate government may be traced to the asserted owners of the vessel. On this assumption there will be no greater difficulty in this case than in the case of the Tallahassee if the sale at Gibraltar can be proved to have been a fictitious sale; but if it can be established to have been a bona fide sale, the instance courts of admiralty may be disposed to refuse to disturb the parties in possession of the ship, if their possession is supported by a bona fide bill of sale, executed in a British port. On the other hand, the court of chancery seems, from the language of its judgment in the case of the ships purchased in 1848 by the agents of the rebel Sicilian government, to have held that British subjects could not acquire a lawful title to the property of the legitimate government of the Two Sicilies through the instrumentality of the rebellious subjects of the King of the Two Sicilies while in a state of rebellion. I think that a warrant of arrest may be taken out against this vessel.
Doctors’ Commons, July 14, 1865.
TRAVIS TWISS.
Opinion of Mr. Lush.
This case gives rise to questions and considerations which are not involved in either of the others; but I think that the sale would be held to be invalid, as against the United States.
I therefore advise the consul to take proceedings for recovery of the vessel, and for the reasons given in the case of the Cameleon. I recommend that these proceedings be taken in the court of admiralty.
Mr. Wilding to Mr. Adams.
Sir: I annex copy of a letter just received from Messrs. Harvey & Co., relating to the cotton by the Aline.
In the cases of the Rappahannock and the Tallahassee, I am informed that warrants were issued this morning.
Very respectfully, I am, sir, your obedient servant,
His Excellency Charles Francis Adams, &c., &c., &c., London.
[Enclosure No.11.]
12 Castle Street, Liverpool,July 18, 1865.
The United States of America vs. Prioleau.
THE ALINE.
Dear Sir: We have just received a telegram from our Mr. Ryley, who went to London last night to push on this suit, that he has obtained special leave from the court to move for an injunction, and appointment of a receiver to take charge of the cotton on Thursday next. Messrs. Hull & Co. have undertaken to appear for Frazer, Trenholm & Co., and have instructed their agents by telegraph.
McDowall & Halliday’s cotton will be the subject of a separate suit, should a suit turn out to be necessary.
The motion will be before vice-chancellor Sir W. Page Wood.
Yours, truly,
HARVEY, JERVIS & RYLEY.