[See p. 517.]

FORTY-SIXTH CONGRESS, SECOND SESSION.

February 18, 1880.

[Senate Report No. 285.]

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

The Committee on Foreign Relations, to whom was referred the bill (S. 850) to provide a commission for the adjudication of damages to the Norwegian bark Atlantic by collision with the United States steam sloop of war l'andalia, and for payment of any award made by said commission, have had the same under consideration, and report:

That the owners of the Norwegian bark Atlantic claim of the United States compensation for injuries to their vessel, and for losses by her detention in the port of Lisbon for repairs, under the following alleged state of facts:

That the bark Atlantic was upon the high seas pursuing her voyage from the port of Ozan, in Algeria, to the port of Leith, in Scotland, on the 31st of October, 1876, when she was hailed by the United States steam war sloop Vandalia, who sent out a boat to the Atlantic with a request for newspapers.

That some delay occurred because the officer from the Vandalia and the captain of the bark could not converse in the same language.

During this delay the vessels collided, and it is claimed by the captain of the bark, in a public protest that he made on his arrival at Lisbon, that his vessel was wholly without fault.

The Norwegian bark was so damaged by the collision that the Vandalia found it necessary to tow her into Lisbon, Portugal, where she could be repaired.

The officer in command of the Vandalia claims that his ship was without fault, and so reported to the Secretary of the Navy.

The claim for compensation appears to be made in good faith, and is so far supported by evidence that it requires impartial examination. The King of Sweden and Norway has caused his minister to the United States to bring this subject to the attention of this Government, and to ask that some action be had by Congress by which a mode of adjusting this dispute may be provided.

There is no provision of law by which the United States can be sued in courts of admiralty, and ships of war are not subject to any proceeding in rem by persons who may sustain damages by their negligent or improper navigation.

The Norwegian minister suggests in his correspondence with the Secretary of State that his Government has provided by law so that suits may be brought against it in its own courts in such cases by persons who have unjustly sustained damages. He presents this as an additional ground for his request that Congress shall provide for a settlement of the claim of his countryman by impartial arbitration.

Your committee agree that this request is reasonable and proper, and report back the bill referred to them with a substitute therefor, and recommend its adoption.

[See p. 516.]

FORTY-SIXTH CONGRESS, THIRD SESSION.

February 9, 1881.

[Senate Report No. 855.]

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

The Committee on Foreign Relations, to whom was referred the bill (S. 1834) to pay the creditors of the late Henry O. Wagoner, late consular clerk at Lyons, France, have examined the same, and report: The merits of the bill are fully explained in the following letter from the Department of State:

The Hon. HENRY M. TELLER,

United States Senate:

DEPARTMENT OF STATE,
Washington, March 26, 1880.

SIR: In response to your request, in your recent interview at the Department, in reference to the affairs of Mr. Henry O. Wagoner, late a consular clerk at Lyons, France, I have the honor to communicate the following information:

Mr. Wagoner was appointed a consular clerk in 1873, and held a commission from the President in that capacity. The salary appropriated for that office is at the rate of $1,000 a year. Mr. Wagoner was assigned to duty first at Paris, and subsequently at Lyons. So far as is known to the Department, he was an efficient and trustworthy officer. He died at Lyons on the 4th of March, 1878, after a lingering illness of consumption. The salary of a consular clerk, which was not more than was required for an economical living while in health, was quite inadequate to meet the necessities of a long and expensive sickness, and on his death it was found that he had accumulated debts to the amount of $542.50. Of this sum a considerable part was advanced to him by the vice-consul then in charge at Lyons. and the remainder was incurred for maintenance and medical attendance. Upon application to Mr. Wagoner's father it was found that he was unable to meet these expenses, and they yet remain unpaid. The Department had no fund in its control from which they could be defrayed.

The case of Mr. Wagoner is believed to be somewhat exceptional in its character, and deserving the consideration of Congress. It is represented by the viceconsul that credit was given to Mr. Wagoner for necessaries during his illness, in the belief that, under such circumstances, they would be paid for by the Government of which he was a representative, and application has repeatedly been made at the consulate for their payment, under this belief. The debts were incurred in the pressing necessities of a long illness, and not from Mr. Wagoner's carelessness or extravagance, and under circumstances which could not be met by the limited salary of his office. The deficiency was, as has been stated, made up in considerable part by the charity of his superior officer.

It is understood that Mr. Wagoner was not indebted to the United States at the time of his death.

I have the honor to be sir, your obedient servant,

JOHN HAY, Assistant Secretary.

The committee are of opinion that in view of the exceptional nature of this case, the peculiar circumstances under which the indebtedness of the deceased to French citizens was incurred, and the inability of his father to pay the same, the good name of our Government requires its payment from the public Treasury, and therefore recommend the passage of the accompanying substitute for the original bill.

[See p. 522.]

March 1, 1881.

[Senate Report No. 922.]

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

The Committee on Foreign Relations, to whom was referred the S. Doc. 231, pt 3—33

message of the President relating to the claims of Spain against the United States, have had the same under consideration, and report as follows:

This subject has been considered in a variety of forms by the executive, legislative, and judicial departments of the Government, but no negotiation has been entered into between Spain and the United States to remove the difference between them, if any exists, as to the true meaning of the treaty.

The discusion before the tribunals of the United States has engaged the attention of a number of the best informed jurists and publicists of this country, and seems to have exhausted research into precedents and analogies. Nothing new remains to be said, it seems, on either side of the question presented, and it is time that a final decision was made and further controversy ended.

The precise question involved in this claim for relief is, whether the Government of the United States is bound by the treaty with Spain of the 22d February, 1819, to pay interest on claims allowed in favor of Spanish inhabitants and officers under the last paragraph of the ninth article thereof, which is in the following language:

And the high contracting parties respectively renounce all claim to indemnities for any of the recent events or transactions of their respective commanders and officers in the Floridas. The United States will cause satisfaction to be made for the injuries, if any, which, by process of law, shall be established to have been suffered by Spanish officers, and individual Spanish inhabitants, by the late operations of the American army in Florida.

The message of the President, with the accompanying correspondence between the Spanish minister and the diplomatic representatives of the United States, relative to "the Florida claims," discloses a specific demand by the Government of Spain upon the Goverment of the United States for the payment of certain sums, as interest, on demands ascertained to be due to Spanish subjects under the ninth article of the treaty of February 22, 1819. Spain asserts that the payment of said sums of interest is required to complete the duty of the United States in the execution of its treaty obligations.

The President places the matter before Congress without any recommendation, and without any distinct intimation that Congress is the proper department of the Government to interpret as well as to execute the treaty-to determine the rights of Spain under the treaty and to provide for them. This is left to be inferred, if at all, from the silence of the President. In the opinion of the committee the President is the only functionary of the Government of the United States that has the constitutional right, acting through some diplomatic agent, to conduct a discussion with Spain on the subject of these claims. Congress can not engage in such discussion. It can not appoint an agent or commissioner for that purpose without the cooperation of the President. The reference of this question to Congress therefore can only be intended to indicate either that there is no question open between the two Governments, as to the duty of the United States, which admits of discussion; or else that Congress must decide whatever question may remain unsettled, without further discussion with Spain. The executive department has neither expressed to Congress nor to Spain, in the correspondence sent to the committee, its opinion of the duty of Congress in the premises; and the treatymaking power, which has plenary and sole jurisdiction to make treaties or to reform them, has not been invoked to remove any misunderstanding, if any exists, as to the meaning of the treaty of February, 1819, between the United States and Spain.

Spain, on its part, has apparently assumed an attitude of indifference as to the means that the Government of the United States may choose to employ to meet its demands, and simply asserts its right under the treaty to have interest paid to the claimants on their claims. The treaty is part of the supreme law of the land, and until it is revoked by some direct proceeding, or is abandoned, or is violated by Spain, it is binding on Congress; and Congress, in executing it, must obey it. Under such circumstances, if Congress has any duty to perform, no discretion can remain to it in respect of that duty, except merely as to the time and manner of performing it. It must observe the treaty so long as it is in force. It must accept Spain's construction of the treaty, and execute it by appropriating the money to pay the demands made by that Government; or it must, without a discussion with Spain as to the justice of its demands and of the construction of the treaty, refuse to accede to them.

In this attitude of this delicate question the committee feel that the action of Congress if adverse to the claims of Spain will not be received as a conclusive declaration of the Government of the United States that no further consideration of the demands of Spain is admissible, but will leave it open to Spain and the treaty-making power of the United States to expound or reform the treaty, and thus create the possibility of inharmonious action between the legislative department and the treaty-making power of this Government. It is the opinion of the committee that when the true construction of a treaty is in question between the United States and any other government it is the duty of the executive department to use its full and untrammeled privileges and rights of discussion and negotiation in the effort to reach a satisfactory understanding with such government before Congress shall intervene to declare the true construction of the treaty. If Congress should differ in the construction of the treaty with the Executive or treaty-making power of the Government of the United States, it can so declare when a proper occasion is presented, or it can revoke the treaty and free the Government from its obligations; but in doing this Congress would not be dealing directly with such foreign government. It would deal with and fix the policy of our own Government, which is its appropriate constitutional function.

It is manifestly unwise, if not improper, for Congress to declare in advance of any definite action of the Executive, or of the treaty-making power of the Government, that the construction placed by Spain upon the ninth article of the treaty of February, 1819, is true or false. Such a policy, if adopted as a general rule of action, would withdraw every such question from the control of the authorities provided by the Constitution for their consideration, and would subject our treaty relations throughout the world to extreme embarrassment. No American minister could know how to construe any treaty until the opinion of Congress had been first ascertained, nor could he discuss with any freedom the questions that frequently and unavoidably arise in consequence of the difficulties of the translation of treaties into different languages, and other questions of the construction of the language employed in treaties, in connection with the laws of nations. Entertaining these opinions of the respective duties of the executive department and of the treaty-making power and of Congress, it would be improper at the present for the committee to state their own opinions of the merits of the demand of Spain, which, according to the views of that Government, involves an international and not merely a domestic question.

If Spain and the United States differ in the construction of the treaty in the particular which has been so long under discussion before committees of Congress and the executive officers of the Government, and can settle that difference so as to impose further duties on Congress, it will doubtless be found willing to do all that is required by the interests and honor of the Government of the United States, and in keeping with the rights of Spain or of the claimants.

Until some such duty is made apparent, Congress should not interfere to discuss or decide questions which, for the present at least, should be open to the consideration of the executive department, or of the treaty-making power, without embarrassment from any quarter. The committee ask, therefore, to be discharged from the further consideration of this subject.

[See p. 513.]

FORTY-SEVENTH CONGRESS, FIRST SESSION.

January 31, 1882.

[Senate Report No. 99.]

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

The Committee on Foreign Relations, to whom was referred the bill (S. 90) to pay the creditors of the late Henry O. Wagoner, late consular clerk at Lyons, France, have examined the same, and report: The merits of the bill are fully explained in a letter addressed to a member of this committee in the Forty-sixth Congress, as follows: DEPARTMENT OF STATE,

Washington, March 26, 1880. SIR: In response to your request, in your recent interview at the Department, in reference to the affairs of Mr. Henry O. Wagoner, late a consular clerk at Lyons, France, I have the honor to communicate the following information:

Mr. Wagoner was appointed a consular clerk in 1873, and held a commission from the President in that capacity. The salary appropriated for that office is at the rate of $1,000 a year. Mr. Wagoner was assigned to duty first at Paris, and subsequently at Lyons. So far as is known to the Department, he was an efficient and trustworthy officer. He died at Lyons on the 4th of March, 1878, after a lingering illness, of consumption. The salary of a consular clerk, which was not more than was required for an economical living while in health, was quite inadequate to meet the necessities of a long and expensive sickness, and on his death it was found that he had accumulated debts to the amount of $542.50. Of this sum a considerable part was advanced to him by the vice-consul, then in charge at Lyons, and the remainder was incurred for maintenance and medical attendance. Upon application to Mr. Wagoner's father it was found that he was unable to meet these expenses, and they yet remain unpaid. The Department had no fund in its control from which they could be defrayed.

The case of Mr. Wagoner is believed to be somewhat exceptional in its character, and deserving the consideration of Congress. It is represented by the viceconsul that credit was given to Mr. Wagoner for necessaries during his illness in the belief that, under such circumstances, they would be paid for by the Government of which he was a representative, and application has repeatedly been made at the consulate for their payment, under this belief. The debts were incurred in the pressing necessities of a long illness, and not from Mr. Wagoner's carelessness or extravagance, and under circumstances which could not be met by the limited salary of his office. The deficiency was, as has been stated, made up in considerable part by the charity of his superior officer.

It is understood that Mr. Wagoner was not indebted to the United States at the time of his death.

I have the honor to be, sir, your obedient servant,

Hon. HENRY W. TELLER,

JOHN HAY, Assistant Secretary.

United States Senate.