bond to be given just at the moment when he adjudged the vessel guilty and ordered her to be sold and the proceeds placed in the Treasury, the conclusion is irresistible that he was in fact performing political functions, and that when the political exigency was passed he reversed his decision not from legal but from political considerations. If this be so, the owners of the Meteor are clearly entitled to protection and compensation for their injuries resulting from the refusal to bond.

The claim of the owners of the Meteor to be compensated for their actual damage is sustained by numerous precedents.

In England they are recent, explicit, and directly to the point. They cover much more than the case of the Meteor. It is not alleged and was never pretended that the Meteor was built, like the Alabama or the Laird rams, with the intent of violating the neutrality laws of the country in which she was constructed. The English Government, however, in those cases uniformly and distinctly recognized the necessity of guarding private rights and conceded the liability of the Government in case of their infringement. Even in a case so utterly devoid of merits as that of the Alabama, Lord Palmerston used the following language on this point in Parliament:

When a vessel is seized unjustly and without good grounds, there is a process of law to come afterwards, and the Government may be condemned in heavy costs and damages. * * * I have myself great doubts whether, if we had seized the Alabama, we should not have been liable to considerable damages. (Hansard's Debates, vol. 170, p. 91.)

Subsequently the same Government did seize several vessels (though in no such case of hardship as that of the Meteor). One of the vessels so seized was the Alexandra, which was taken under circumstances calculated to excite the gravest suspicions.

This vessel was finally released to the claimants, after a decision of the House of Lords in their favor, and £3,700 sterling, damages and costs, were paid by the Government. (See memorandum attached to Earl Russell's letter to Mr. Adams, dated November 2, 1865, Diplomatic Correspondence, 1861, Part I, p. 636.) The liability of the English Government in such cases was thus acknowledged, and the correctness of the opinion expressed by Lord Palmerston established. In every other case which has arisen in England, the Government, after making the seizure, has compromised the claimants' demands for damages by the purchase of the property seized. The most notable instance of this course of proceeding was in the Laird rams, where, after the claimant had given notice of a demand for damages, the rams were purchased by the Government at a cost of £225,000 sterling, and subsequently, according to the statement of British naval officers, proved nearly worthless. These vessels, wholly unlike the Meteor, had been originated and built in flagrant contemplated violation of the laws of Great Britain. Hardly a pretense at concealment was vouchsafed, and a very large part of this purchase money, exceeding $1,100,000 in gold, should properly be looked on as an indemnity for damages.

In America the precedents on the subject are numerous and decisive as to the principle. The leading case is that of the American Eagle. (Am. St. Pap., Vol. XIX, pp. 450, 475, 601). The facts in this case are very like the facts in the case of the Meteor, though less oppressive to the claimants. The American Eagle was a large frigate-built ship, of English build, sold by French captors to American citizens, and pierced for 48 guns. In June, 1808, she was lying in New York,

ready for sea, with a large supply of provisions on board, with repairs and outfits all in man-of-war fashion, but without armament or crew. Under these circumstances, the French minister presented remonstrances to the Government, stating that the ship was destined for Pétion, one of the black chiefs of San Domingo, then in rebellion against France. On the 6th of June the collector of New York was informed, by letter from the Treasury Department, that, in the opinion of the President, the ship ought to be seized and libeled under the third section of the act of 1794 (which is identical with the third section of the act of 1818, under which the Meteor was seized and libeled), as being fitted out for illegal purposes, unless the owners should give satisfactory proof to the contrary. The ship was accordingly seized on the 10th of July, 1810. No attempt at the proof referred to was offered by the owners, and a committee of Congress subsequently reported that, in their opinion, no such proof could have been given, as the ship was in fact fitted out for Pétion. Owing to the indisposition of the district judge the cause was not tried and decided till August, 1812, and in the interval the ship remained in the custody of the marshal; she was then, by order of the court, restored to the claimants, the judge deciding that "if the vessel was destined for, or had been even sent to, Pétion, it would not have been in violation of the laws of the United States." Congress subsequently appropriated $130,000 to indemnify the claimants in this case. (Acts 1818, ch. 45.) The only other precedent for the principle under discussion necessary to cite at length is the case of Charles B. Hall (Twenty-seventh Congress, second session, Rept. No. 545). In this case the claimant Hall sought redress directly from the Government, as the Meteor claimants now do, on the ground that the proceedings against him "were commenced, conducted, and fully sanctioned by it." In this case certain blankets, the property of the petitioner, had been seized and libeled for alleged attempt to defraud the revenue. The committee, in this case, inferred the direct agency and authority of the Government in the seizure, and all subsequent proceedings, from the fact that "after notice of the seizure the Department sanctioned the prosecution of the libel." Their report closed with these words, singularly applicable to the case of the Meteor:

In the whole affair the finger of the Government is seen. Perhaps this rigor is called for by the reported attempted frauds on the revenue; and the committee do not design to censure or condemn it. But when it is discovered that agents of the Government have, under its authority, improperly occasioned injury or loss to individuals, it is the high duty of the Government to make prompt reparation. The claimant was indemnified by act of 1843 (ch. 121, 6 Stat., p. 892). The volumes of statutes contain many other laws granting compensation to parties injured by seizures where "the finger of the Government is seen in the transaction, ," which the committee do not deem it necessary to cite at length. The question in each particular case is within the sound discretion of Congress. The following is a list of many such enactments:

Act for compensation to the owners of the British ship Perthshire in consequence of her detention by the U. S. S. Massachusetts under the impression that she had evaded the blockade. Approved January 17, 1852. (12 Stat. L., p. 901.) Same provision on account of "wrongful seizure and detention of the Spanish bark Providentia." Approved May 12, 1862. (13 Stat. L., p. 903.)

Same provision for damages for wrongful seizure and detention of British ship Magicienne. Act approved July 25, 1866. (14 Stat. L., p. 601.)

Act to indemify W. C. H. Waddell, marshal of southern district of New York. for damages obtained against him for seizing quantity of brandy. Act approved June 30, 1834. (6 Stat. L., p. 594.)

S. Doc. 231, pt 3-26

Act to indemnify John Hone & Sons for an illegal seizure of teas. (6 Stat. L., p. 556.)

Act to indemnify for capture and detention of ship Niger. (1 Stat. L., p. 724.) Act to indemnify for capture and detention of schooner Amphitheatre. (6 Stat. L., p. 47.)

Act to indemnify for capture of schooner Charming Betsey. (6 Stat. L., p. 56.) Act making allowance to collector of New York for judgment recovered against him for seizure of ships Liberty and Two Marys. (3 Stat. L., p. 423.)

Act to indemnify collector of New York for damages for seizure of vessels for supposed violation of nonintercourse act with France. (6 Stat. L., p. 150. Case of Joshua Sands.)

Act to indemnify Captain Stockton for capture of ship supposed to be engaged in slave trade. (6 Stat. L., p. 288.)

Act to indemnify the collector for judgment recovered against him for seizing a French vessel. (6 Stat. L., p. 307.)

Owners of certain vessels sunk at the mouth of Baltimore Harbor, paid for their detention. Act approved April 26, 1822. (6 Stat. L., p. 265.)

Act to pay judgment against John Steele, collector of Philadelphia, obtained against him for his refusal to grant a clearance to a Spanish brig under instruction from the Department of State. Act approved May 1, 1820. (6 Stat. L., p. 241.)

Act to pay Lippincott & Co., of Philadelphia, for damages sustained by them in consequence of the illegal seizure of teas, made by the collector of that port under the orders of the Secretary of the Treasury. Act approved July 14, 1832. (6 Stat. L., p. 511.)

Act to pay judgment against special agent of Post-Office Department. (6 Stat. L., p. 750.)

Cyrenius Hall (8 Laws, p. 784).

Duvall v. Carnes (6 Stat. L., p. 466).

George Johnston (6 Stat. L., p. 373).

See also House Report No. 690, Twenty-ninth Congress, first session, to accompany House bill No. 462, on the claim of John Pickett et al., owners of brig Albert.

In view of all the circumstances of the case, the committee believe it to be the duty of Congress to make provision for the compensation of the owners of the Meteor for the damages sustained by the unlawful detention of the vessel.

The original intention in her construction had no possible reference to any violations of the neutrality laws, but was pure and patriotic; neither in law nor in fact, as it now appears, was there any reason, unless political or diplomatic, for seizing and detaining the vessel. The owners in their action consulted the late Governor John A. Andrew and George Benis, esq., as to the disposition which could lawfully be made by them of a vessel which could be of little use for ordinary commercial purposes, and while following their advice they were made the sufferers by proceedings in behalf of the Government which must be considered partly, if not wholly, political in their character, and which, even if required by the exigencies of the Government, carried with them "the high duty of the Government to make prompt reparation."

The committee now only recommend the action indicated by Judge Betts in his decision refusing to bond the vessel which entailed the heavy loss upon her owners. His language in closing his opinion was as follows:

"To the suggestion of the hardship of the case to the claimants, in case of an acquittal of the vessel on trial, the answer is that it is not improbable that the policy adopted by Congress of holding the vessel in custody to secure the rigid observance of the neutrality laws would be considered by the Government as furnishing ground for making compensation for the loss and damage caused by an unwarranted prosecution."

JOINT RESOLUTION relative to the steamship Meteor.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the memorial of Robert B. Forbes. John M. Forbes, W. H. Aspinwall, A. A. Low & Bros., Leonard W. Jerome, E. B. Ward, M. H. Simpson, James Lawrence, H. S. Russell, and Theodore Lyman, executors; Richard S. Rogers, J. G. Cushing. W. B. Bacon, J. P. Bailey, James Davis, and J. F. Tuckerman, owners of the steamship Meteor, built to be tendered to the Government for the pursuit of the rel el cruiser the Alabama, and wrongfully seized and detained at New York in 1865, by authority of the United States, and all papers relating thereto, be referred to the Court of Claims for examination and the allowance of the amount of damages actually sustained by said owners by reason of such wrongful seizure and detention; the judgment rendered by said court to be paid out of the appropriations duly made to pay judgments rendered by said court.

FORTY-THIRD CONGRESS, SECOND SESSION.

February 16, 1875.

[Senate Report No. 659.]

Mr. Frelinghuysen, from the Committee on Foreign Relations, submitted the following report:

The Committee on Foreign Relations, to whom was referred the petition and claim of George W. Lake for $35,000, to indemnify him for alleged damage inflicted on him by Willie P. Mangum, United States consul in Nagasaki, and Charles E. De Long, United States minister, etc., at Japan, have had the same under consideration, and ask leave to submit the following report:

On September 12, 1860, George W. Lake was registered at the United States consulate at Nagasaki, and, up to the time of his departure from Japan, in 1871, was engaged in business there. It is from complications arising in his business affairs and judicial determination of these disputes that Mr. Lake considers himself wronged and for which alleged wrongs he asks redress and compensation in the sum stated.

In his petition Mr. Lake only states his case, and refers Congress to the files of the State Department for documentary proof to substantiate it. The committee requested the Department to furnish such evidence in this case as might be in its possession, and that evidence was before the committee. A careful examination of these papers establishes the following matters of fact:

On September 30, 1866, H. Fogg & Co., of Shanghai, China, auctioneers, sold, for account of one J. S. Baron, a flour mill. The purchasers were C. R. Simmons, R. J. McCaslin, and H. Fogg & Co., and they owned each a third of the mill. The property was shipped to Nagasaki and was under the control there of McCaslin, who agreed with George W. Lake (1) that Lake & Co. should erect the mill on a lot of G. W. Lake, at Namonihua, and then either sell it or operate it for the joint advantage of himself and the other owners; (2) that such moneys as might be necessary to erect and start the mill were to be advanced by Lake, and refunded to him in case McCaslin effected a sale; and (3) that if the mill were sold by mutual consent, "then each to stand one-half of the profit or loss." No outside party was to have anything to do with the mill unless it was agreeable to Lake.

A quarrel soon arose between Lake and McCaslin, and both attempted to sell the mill, under the provisions of the agreement just referred to.

Willie P. Mangum, then consul of the United States at Nagasaki, ordered Lake to desist from any attempt to sell or remove the mill until the owners, or parties claiming ownership, could be heard from. In the meantime Mr. McCaslin (against whose efforts to sell Mangum does not appear to have interposed any objection) sold the property to Adrian & Co., a Belgian firm, who bought it for removal to Osaka for certain Japanese. Mangum swears-in Lake's action against him subsequently-that he advised and urged the partners, Lake and McCaslin, to keep their disputes out of court, and at last succeeded in inducing them to submit the whole subject to an arbitration. This they did under date of April 7, 1869, and the decision of the board was to be final and without appeal.

Adrian & Co. began the removal of the machinery during the sittings. of the arbitrators. Lake opposed this removal until his claim was settled. He went to the mill and took the key away from the workmen, and warned them to stop. Adrian & Co. appealed to the United States consular court to enforce the agreement which they claim existed between Lake and themselves, which permitted the removal of the property purchased by them, and also for damages caused by the delay occasioned by Lake taking away the key and retaining it. Mangum decided this case in favor of the plaintiffs, adjudging damages against Lake in the sum of $400, this being the cost to the plaintiffs for the charter of the vessel on which the machinery was being loaded, at $40 per day, for ten days' delay caused by act of Lake. The court also ordered Lake to deliver up the key to Adrian & Co. He refused to do so, and was punished by fine and imprisonment for contempt. He still refused, and was again punished in like penalties for persistent contempt of court. The order was then complied with, and the work on the removal of the mill proceeded.

The arbitrators finished their work, and provided for the distribution of the net sum produced by the sale of the mill, $5,500. Of this amount, $2,971.57 was awarded to Lake for expenses incurred in putting up the mill, in conformity with the article of agreement, McCaslin having effected the sale. The residue, $2,528.43, was ordered to be divided equally between Lake and McCaslin.

Nearly two months after this award Adrian & Co. received the purchase money from their clients at Osaka, and notified Mangum of its receipt. Mangum instructed them to pay over to Lake the specific sum awarded him for outlay on the property, and to hold the balance, $2,528.47, pending the investigation of a claim preferred against it by Fogg & Co., of Shanghai, through their agent and attorney, J. F. Twombly. McCaslin made an amicable settlement with Fogg & Co., by paying $400 in satisfaction of their claim as against him.

As Lake, the petitioner, does not complain of its nonpayment, the assumption is justified that it was divided in conformity with the award of the arbitrators.

66

Mr. Lake now complained to the Department of State that he had been wronged by the consul, Mr. Mangum. Mr. J. C. B. Davis, Assistant Secretary of State, replies that consuls are not exempt from prosecution because of their official position, but may be proceeded against like other persons when within reach of judicial powers." Mr. Fish addresses Mr. Mangum that Ion. B. F. Butler has submitted papers, on behalf of George W. Lake, alleging that the consul had injured his constituent. Mr. Fish, in his reply to Mr. Butler, says that certain papers requested in the case are not a part of the records of the Department, and adds that if they were, they could have no