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FORTY-FIRST CONGRESS, SECOND SESSION.

January 31, 1870.

[Senate Report No. 17.]

Mr. Sumner made the following report:

The Committee on Foreign Relations, to whom is referred the petition, with accompanying papers, of John Somers Smith, late commercial agent at the city of St. Domingo, beg leave to report:

From the papers before the committee, it appears that the petitioner, John Somers Smith, in 1867, A. D., while commercial agent of the United States at the city of St. Domingo, was employed in a diplomatic capacity, and that he negotiated a general convention of amity, commerce, and navigation, and for the surrendering fugitive criminals between the United States of America and the Dominican Republic, which convention was signed at the city of St. Domingo February 8, 1867, after advice and consent of the Senate, ratified by the President of the United States July 31, 1867, and after exchange of ratifications at St. Domingo October 5, 1867, proclaimed by the President of the United States October 24, 1867. The petitioner also sets forth other services rendered under power from the President of the United States to purchase or obtain a lease of the peninsula and bay of Samana, under which he maintained a diplomatic correspondence with the Secretary of State, consisting of 32 confidential letters, irrespective of his regular correspondence, all of which are on file in the Department of State.

The petitioner also sets forth expenses on account of political refugees at the consulate.

The question of additional compensation to Mr. Smith, beyond his pay as commercial agent, has been referred to the Department of State by the committee, in order to have some competent opinion with regard to the reasonableness of his claim. By a letter dated December 21, 1868, Mr. Seward thus expresses himself:

There is believed to have been no other instance where business of such importance has been intrusted to and successfully accomplished by a mere commercial agent. We were moved to employ Mr. Smith for the purpose referred to from a knowledge of his capacity for and experience in business, and of his familiarity with the Spanish language, shown during many years when he held an important consulate in Spain. Perhaps a sufficient precedent for such an appropriation may be found in the act of Congress approved March 3, 1855 (Stats., Vol. X, p. 659), by which $20,000 were awarded to Commodore M. C. Perry for concluding the treaty with Japan.

The same question has been submitted again to the Secretary of State, the successor of Mr. Seward, who was asked by the committee to express his opinion on the value of these services, and the proper allowance, if any, to be made. Mr. Fish, in reply, under date of January 18, 1870, says:

It can not be doubted that Mr. Smith's services were valuable, and that he has an equitable claim to compensation for them.

In another letter of January 26, Mr. Fish says:

That the sum of $3,750, deducting therefrom $1,500, a year's salary as commercial agent, would be an adequate compensation.

The committee have accepted the estimate of Mr. Fish, which appears to be sufficiently moderate, and report a bill accordingly.

April 26, 1870.

[Senate Report No. 124.]

Mr. Sumner made the following report:

The Committee on Foreign Relations, to whom was recommitted Senate bill No. 692, for the relief of J. Ross Browne, late minister of the United States to China, have had the same under consideration and beg leave to report:

J. Ross Browne, late minister of the United States to China, in petition claims compensation for the period between April 11 and August 4, 1868, both inclusive, during which time he held his commission and performed actual services for the Government, and a further sum for certain extra expenses incurred by him in the discharge of his duties as minister.

On reference to the Department of State a reply, under date of 12th of March, 1870, was received, recommending allowance of compensation to Mr. Browne at the rate of his salary for the period from the 11th of April, 1868, to the 3d of June, 1868, both inclusive, being $1,775.30, and for the following items presented in his petition, viz: Office rent, nine months, at $50 per month Clerk hire for same period, at $100 per month. Gate keeper for same period, $5 per month.

Keeping express horse for same period, $5 per month
Expenses incurred in visiting treaty ports....

Total.....

$450

900

45

45

500

1,940

An item of $1,000 for "cost of passage to and from Pekin in excess of expense incurred by ministers to any other power" was disallowed by the committee.

In accordance with the recommendation of the Department of State a bill was reported providing for the payment to Mr. Browne of the sum of $1,775.30, salary as above, and the further sum of $1,940 for the other items specified being in all the amount of $3,715.30.

The Department recognized Mr. Browne's title to salary from June 4 to August 4, 1868, both inclusive, under the existing law. The Comptroller of the Treasury, in a communication to the Secretary of State, under date of April 23, 1870, stated that he did not think himself authorized, under the existing law, to allow for this period, but adding that he thought the allowance equitable.

The Department of State, under date of April 23, 1870, in a communication to the committee, has recommended that, in addition to the provision for Mr. Browne suggested by the Department in its letter of April 12, 1870, allowance be made for transit expenses at the rate of his salary from June 4, 1868, to August 4, 1868, both inclusive, being the sum of $1,998.81; thus covering the period for which, according to the Comptroller, an allowance would be equitable.

The committee accordingly report an amendment to the abovementioned bill, allowing Mr. Browne $3,774.11, as salary from April 11 to August 4, 1868, and $1,940, for the extra expenses set forth above, with the addition of 10 per cent, or $194, for exchange.

May 19, 1870.

[Senate Report No. 173.]

Mr. Sumner submitted the following report:

The Committee on Foreign Relations, to whom was referred the petition of Charles Town Smith, praying compensation for services ren

dered as attaché of the United States legation at Madrid, have had the same under consideration and beg leave to report:

Mr. C. T. Smith represents in his petition that in March, 1855, he was appointed by Mr. Marcy attaché to the legation of the United States at Madrid, at the recommendation of Mr. Perry, then acting as chargé d'affaires, to assist in the settlement of the Black Warrior case, at the salary of $1 a day; that afterwards he was appointed by Hon. Augustus O. Dodge, minister of the United States at Madrid, acting secretary of legation, and performed the duties of this post until the arrival of Mr. Buckingham Smith as secretary, and that for all these services he drew on Washington, and was duly paid. After the arrival of the secretary the petitioner continued at the legation as attaché, and he now asks an allowance of $210 for his services there. On application from the committee to the Secretary of State, it appears that there is no record in the Department of any authority for this appointment, nor is there anything to show service. It should be added that no such officer as attaché is contemplated or provided for by the laws of the United States. Under these circumstances, and considering also the long period that has elapsed since the alleged service, it is not thought that the case deserves consideration. The committee recommend that the petition be indefinitely postponed.

1

June 18, 1870.
[Senate Report No. 216.]

Mr. Sumner made the following report:

The Committee on Foreign Relations, to whom was referred the petition of Marcus Otterbourg, have had the same under consideration, and beg leave to report as follows:

Mr. Marcus Otterbourg was appointed consul of the United States at the City of Mexico in August, 1861. In July, 1865, he tendered his resignation, assigning as a reason that his salary, by law fixed at $1,000 per annum, was inadequate to permit him to represent the country creditably. His resignation was accepted by Mr. Hunter, Acting Secretary of State, with the request that he would continue to hold the office until the arrival of a successor at his post of duty.

Of subsequent facts of importance in this case, Mr. Seward, then Secretary of State, made the following official statement, dated February 23, 1869:

Mr. Otterbourg returned to the United States. In March, 1866, he went back to Mexico as consul and to take charge of the archives of the legation, Mr. William H. Corwin, acting chargé d'affaires, having been recalled. He reported himself as having arrived at Mexico on the 8th day of April, 1866, and as being occupied in verifying the inventory of archives and other property of the legation, which was finally completed, and he put in charge thereof by Mr. Corwin, in pursuance of the instructions of the State Department, on the 20th day of the same month. He was thenceforward recognized as a consular officer, performing and authorized to perform diplomatic functions so far as such were necessary and practicable in the exceptional condition of Mexico, and of the relations of this Governinent to the usurping government of Prince Maximilian, in actual possession of the capital, and to the rightful government of President Juarez, which was generally remote therefrom, and migratory with the vicissitudes of war.

Mr. Otterbourg kept the Department informed of the political situation in Mexico. His dispatches, not concerning his commercial functions as consul, but those of a political agent, were classified and preserved among the diplomatic archives. In October, 1866, Mr. Otterbourg again returned to Washington, with the approval of the Department, and was directed to make a confidential report on the situation in Mexico at that time. He was furnished with a copy of the instructions to Lewis D. Campbell, who had been appointed minister to Mexico, with whom, on his return, he was directed to communicate.

He proceeded to Mexico and made a report, which he delivered to our minister on his arrival at Vera Cruz. During the whole period, from April, 1866, to June 21, 1867, during which Mr. Otterbourg was consul and in charge of the legation as aforesaid, there was not in that country any other officer of the United States authorized to perform diplomatic functions therein, e..cept or otherwise than that Lewis D. Campbell, a duly commissioned minister, was for a day or two upon its coast or in the harbor of Vera Cruz, whence he returned without proceeding to the interior or putting himself in communication with the Government of Mexico, except when, in April, 1867, he addressed from New Orleans a letter to the Mexican secretary for foreign affairs, requesting humane treatment for Maximilian in case of his capture.

In response to interrogatories for the United States: The United States had at no time a representative accredited to the Government of Prince Maximilian. We had no other minister appointed to the Government of Mexico during the time for which Mr. Otterbourg clains compensation, and who accepted or made any attempt to proceed upon his mission, except Lewis D. Campbell, of whom I have before spoken, and no one who during that period presented his letters of credence. The office for which Mr. Otterbourg claims salary was not occupied by any other person. During the whole period of the occupation of Mexico by Prince Maximilian Congress made the usual annual appropriation for a minister to Mexico, with no other variation than that, in the act making appropriations for the consular and diplomatic service for the year ending June 30, 1866, the words "Republic of Mexico" were substituted for Mexico, the same language being repeated in subsequent acts. This Government never recognized the Government of Maximilian, in the sense of acknowledging or treating with it. We knew it only as an awkward political fact, or rather political pretension, supported by force and foreign intervention.

WILLIAM H. SEWARD.

On June 21, 1867, Mr. Otterbourg was nominated by the President minister plenipotentiary and envoy extraordinary of the United States to the Republic of Mexico. The Senate adjourned on July 21, 1867, without having confirmed the nomination of Mr. Otterbourg; but he continued to discharge the duties of minister plenipotentiary until August 28, 1867, when he received the notification of the lapse of his commission in consequence of the adjournment of the Senate as above. Mr. Otterbourg thereupon returned to the United States and reported at the State Department November 1, 1867, leaving the consulate in the charge of a competent person.

Having presented his account for his services, it was certified by the Fifth Auditor as for consul in charge of legation from April 8, 1866, to June 20, 1867, at the rate of $2,800 per annum; and for minister from June 21 to September 30, 1867, at the rate of $12,000 per annum. The First Comptroller, however, deducted all allowance to him as consul in charge of legation and as minister, but admitted and certified the salary of consul.

The case was taken to the Court of Claims, where judgment was rendered for $85.80 for exercising diplomatic functions from the 19th of August to the 9th of September, 1867, in addition to a further sum due for his services as consul. The court refused to allow salary as minister on the technical objection that Mr. Otterbourg took his oath of office before the consul-general of Switzerland, whose authority for that purpose does not appear. There was, however, no one else before whom he could have taken the oath unless he had returned to Washington for that purpose; and furthermore, the Department of State regarded him as minister and promised him compensation as such.

In accordance with the above statements the committee report a bill giving compensation to Mr. Otterbourg as consul performing diplomatic functions from April 8, 1866, until June 20, 1867, both inclusive; and as minister from June 21 to September 30, 1867, deducting what he has received as consul, and the sum of $85.80, awarded him by the Court of Claims for exercising diplomatic functions from the 19th August to the 9th September, 1867.

[See p. 722.]

July 6, 1870.

[Senate Report No. 241.]

Mr. Sumner made the following report:

The Committee on Foreign Relations, to whom was referred bill H. R. 2094, being "An act for the relief of Mrs. M. S. Morse, administratrix and widow of Isaac E. Morse, deceased," have had the same under consideration and ask leave to report:

Hon. Isaac E. Morse, of Louisiana, was designated by Mr. Marcy, when Secretary of State, a special commissioner to New Granada, and entered upon his duties November 7, 1856. He appears to have returned to the United States April 28, 1857, and to have made a final settlement of his accounts June 20, 185-, when the Department of State allowed him compensation at the rate of salary of a minister resident, and he was paid out of its contingent fund $3,572.84. On examination of the executive minutes of the Senate it appears that Mr. Morse was never appointed and confirmed by the Senate. was only an agent of the Department of State, whose compensation, in the absence of agreement, depended upon usage and the value of the services.

He

In 1860 the case came before the Senate on the petition of Mr. Morse, when Mr. Slidell, of the Committee on Foreign Relations, made a report, allowing him additional compensation at the rate of $15 a day. This report was never acted on.

Meanwhile Mr. Morse died. His widow, as administratrix, petitioned Congress for the additional compensation. Her petition was referred to the Committee on Foreign Relations June 30, 1868, and this committee, after careful consideration, reported upon it adversely January 26, 1869. While the case was before the committee it was referred to the Department of State, whose judgment was expressed in the following letter:

DEPARTMENT OF STATE,
Washington, July 6, 1868.

SIR: I have the honor to acknowledge the receipt of your letter of the 3d instant, with the petition of Mrs. Margaretta S. Morse and accompanying papers, relative to a claim which she makes to an appropriation by Congress of $4,500 for compensation for the services of her husband, Isaac E. Morse, as United States commissioner to New Granada. In reply, I have the honor to inform you that, since the final adjustinent of the accounts of Mr. Morse for his employment in the character referred to, a similar claim has repeatedly been presented to this Departinent, but has not been allowed, because, it may be presumed, every allowance had already been made which usage or equity could sanction. Mr. Morse was associated with the late James B. Bowlin as joint commissioner to the Government of New Granada for the purpose, in part, of negotiating a convention with that Government upon the subject of claims of citizens of the United States. There is nothing in his instructions which specifies his compensation. As Mr. Bowlin, however, was also at the time the United States minister resident at Bogota, it could scarcely have been contemplated that Mr. Morse's compensation was to exceed his, which was fixed by law at $7,500 a year. Indeed, Mr. Morse's account was adjusted upon this basis, for it appears from the records of this Department that he received for his compensation and expenses to New Granada $3,572.84 from November, 1856, to April, 1857, at $7,500 a year. You are aware that, pursuant to the law as it then existed and now exists, no diplomatic agent is allowed an outfit or any other traveling expenses than the amount of his salary during the time actually and necessarily occupied in proceeding to and returning from his post. The allowance to Mr. Morse was made accordingly, and, as is presumed, was ample under the circumstances.

The papers which accompanied your letter are herewith returned.
I have the honor to be, your obedient servant,

Hon. CHARLES SUMNER,

Chairman Committee on Foreign Relations, Senate.

WILLIAM H. SEWARD.

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