Reminiscences of Sixty Years in Public Affairs, Vol. 2

G >> George S. Boutwell >> Reminiscences of Sixty Years in Public Affairs, Vol. 2

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"You can do that if you choose, but you cannot control my action now."

In the Senate I opposed the confirmation on the ground that a majority
of the Republican Party were dissatisfied, that it was an unnecessary
act of violence to their feelings, that there were men who were
acceptable who could be considered, and that the means by which the
nomination was secured could not be defended. I was then challenged to
say whether I appealed to the courtesy of the Senate. I said:

"No, I do not. I ask for the rejection of Simmons upon the ground that
the nomination ought not to have been made."

Sumner appealed to the courtesy of the Senate, but he had then wandered
so far from the Republican Party that his appeal was disregarded.
Simmons was confirmed.

Enough of the proceedings were made public to enable my opponents to
allege that I might have defeated Simmons, and that my action was
insincere. As a result I had no further political intercourse with
Butler, and when the contest came in 1877 his action aided Mr. Hoar in
securing the seat in the Senate. I presume, however, that Butler
preferred my election, but he had hopes for himself, or at least that
the election would go to a third party. A day or two before the
election he sent me a friendly despatch urging me to go to Boston. I
had already determined to avoid any personal participation in the
contest. That non-interference I have never regretted.

THE ELECTORAL COMMISSION

As I now view the subject (1900) the Electoral Commission was an
indefensible necessity. In the division of parties it seemed
impossible, and probably it was impossible, to secure a result with
peace to the country, except by a resort to extraordinary means.

When the bill passed the two houses the chances were with the Democrats.
Judge Davis was in the list of judges from the Supreme Court. His
sympathies, and perhaps his opinions, were with the Democratic Party,
and there was reason to apprehend that he might incline to act with the
Democratic members of the commission. After the passage of the bill
Judge Davis was chosen Senator from Illinois, and Judge Strong became
a member. Upon the pivotal questions the members acted upon their
political opinions, or, most certainly in accordance with them.

I voted for the bill upon the understanding that there was no specific
authority for such a proceeding. Indeed, the questions might have been
referred to the mayors of New York and Brooklyn, upon grounds equally
defensible in a legal point of view, although the tribunal selected was
much better qualified for the duty. Having agreed to the use of an
unconstitutional tribunal, or to an extra constitutional tribunal, I
had no qualms about accepting the result. Nor was I especially
gratified by the action of the commission. My connections with Mr.
Conkling led me to think that he had great doubts about the propriety
of the decision in the case of Louisiana, and that doubt may have led
him to avoid the vote in the Senate.

REVISION OF THE STATUTES OF THE UNITED STATES, 1878

As chairman of the Committee on the Revision of the Statutes, I framed
and reported the amendments to the Revised Statutes, which were
afterwards incorporated in the edition of 1878, which I prepared by
the appointment of President Hayes after my term in the Senate expired,
which was made probably, upon the recommendation of Attorney-General
Devens and without any solicitation on my part, or by any of my friends,
as far as I know.

The edition of 1878 contains references to every decision of the Supreme
Court down to and including volume 194. It contains a reference to the
decisions of the Supreme Court, all arranged and classified under the
various sections, articles and paragraphs of that instrument. In doing
this work I was compelled to read all the opinions of the Court from
the beginning of the Government, so far, at least, as to understand
the character of each opinion.

The preparation of the index was the work of months. Its value is great
and the credit is due to Chief Justice Richardson who not only aided me,
but he devised the plan and gave direction to the work as it went on.
It was our rule to index every provision under at least three heads,
and in many cases there is a sub-classification under the general
designation. We avoided an error into which many writers fall--we
never indexed under the lead of an adjective, article or participle.

FRENCH AND AMERICAN CLAIM COMMISSION, 1880

In 1880, Mr. Evarts, the Secretary of State, invited me to act as
counsel for the Government in defence of the claims of French citizens
for losses sustained during the Civil War. There were more than
seven hundred cases and the claims amounted to more than thirty-five
million dollars including interest. The recoveries fell below six
hundred and thirty thousand dollars. The printed record covered sixty
thousand pages, and my printed arguments filled about two thousand
pages. The discussion and decisions involved many important questions
of international law, citizenship, the construction of treaties, and
the laws of war.

The chairman was Baron de Arinos. He was a man of unassuming manners,
of great intelligence, and of extensive acquaintance with diplomatic
subjects. He was reserved, usually, but he was never lacking in ability
when a subject had received full consideration at his hands. As far as
I recall his decisions, when he had to dispose of cases on which the
French and American commissioners differed, I cannot name one which
appeared to be unjust.

The insignificant sum awarded was due to many circumstances. Of those,
who as French citizens had suffered losses during the war, many had
become American citizens by naturalization. Again others were natives
of Alsace and Lorraine, and the commission held that they were not
entitled to the protection of France in 1880 when the treaty was made.
But the losses were chiefly due to the absence of adequate evidence as
to the ownership of the property for which claims were made, and to the
enormous exaggerations as to values in which the claimants indulged.

COURTS-MARTIAL

Between the year 1880 and the year 1895 there were five general courts-
martial held in the city of Washington and I appeared for the defendants
in four of them.

I was also retained for the investigation of two cases of officers of
the Navy who had been convicted by courts-martial, one of them held in
the waters of China and the other on the coast of Brazil. The latter,
the case of Reed, which may be found in volume 100 of the United States
Reports, became important as the first attempt by the Supreme Court to
define and limit the jurisdiction of the civil tribunals over the
proceedings of courts-martial.

The courts consist of thirteen officers of the service to which the
accused may belong, and by a majority in number they are his seniors in
rank, if the condition of the service will permit such a selection.

A court thus constituted is an imposing tribunal, and in dignity of
appearance not inferior to the Supreme Court of the United States. The
members are well instructed in the requirements of the service, but
their knowledge of the science of law, especially in its technicalities,
is limited. It is the theory of the system that the judge-advocate
will be an impartial adviser of the court and that he will protect the
accused against any irregular proceeding and especially protect him
against the admission of any testimony that would be excluded in an
ordinary court of law.

In fact, however, the judge advocate becomes the attorney of the
Government, especially when the accused has the aid of counsel. His
advice to the court becomes the rule of the court. Questions of
testimony are important usually, and the line between what is competent
and that which should be excluded is often a very delicate line. The
judge should be a disinterested person. It is too much to assume that
an advocate can in a moment transform himself into an impartial judge.

In the case of Reed, which was an application by a _habeas corpus_
proceeding for the discharge of Reed from prison, the Supreme Court
held that it could not examine the proceedings of the court-martial
further than to inquire whether the act charged was an offence under
the rules of the service, and, second, whether the punishment was one
which the court had power to impose.

Thus it follows, that intermediate errors and wrongs whether by the
exclusion or admission of testimony, or by corruption even, cannot be
remedied by judicial tribunals on the civil side.

A partial remedy for possible evils may be found through the appointment
of a judge from the civil courts, or of an experienced lawyer who should
become the adviser of the court-martial, in place of the judge-advocate
--thus leaving to him the duties of an attorney in behalf of the
Government.

XLII
LAST OF THE OCEAN SLAVE-TRADERS*

In the month of April, 1861, a bark, registering 215 tons, anchored in
the bay of Port Liberte, a place of no considerable importance, on the
northerly coast of the island of Hayti, about twenty miles from the
boundary of Santo Domingo. The vessel carried the flag of France, and
the captain called himself Jules Letellier. The name of the vessel
was not painted upon the stern, as is required by our law; but the
captain gave her name as _Guillaume Tell_, bound from Havana to Havre.
He stated that he had suffered a disaster at the island of Guadaloupe,
and that he had been compelled to throw a part of his cargo overboard.
He said also that his object in putting into the port was to obtain
assistance for the recovery of his cargo; and for that purpose he
solicited recruits. The authorities became suspicious of the craft, and
an arrest was made of the vessel, her officers and men. After some
delay the vessel was sent to Port au Prince, where she was condemned
and confiscated upon the charge of being engaged "in piracy and slave-
trading on the coast of Hayti."

Upon investigation it appeared that the true name of the vessel was
_William_, and that the name of the captain was Antonio Pelletier.
Pelletier was tried according to the laws of Hayti, convicted and
sentenced to death. The sentence was commuted to imprisonment for a
term of years. The facts of his arrest and of the sentence pronounced
upon him were published in the New York _Herald;_ and thereupon, as it
appeared in the investigation that was afterward made, his wife
married and, taking Pelletier's two children, left the country.
Pelletier was kept in prison for about two years, when he escaped,
probably with the connivance of the authorities. He returned to the
United States. Previous to his escape he gained the confidence of
the commissioner of the United States at Port au Prince, who made a
report in his behalf and upon the ground that he had been arrested,
tried and convicted for an offense of which he was not guilty.

That report was made to the Department of State, when Mr. Seward was
Secretary of State. Mr. Seward declined to act, upon two grounds--
first, it was not proved that Pelletier was a citizen of the United
States; and second, the course of Hayti seemed justified by the facts
as they then appeared. Pelletier presented a statement of his claim,
amounting in all to about $2,500,000. He placed the value of the bark
_William_ and her cargo, with some money which he claimed was on her,
at about $92,000. He claimed also that he had been subjected to many
losses in business transactions, which he had been unable to consummate
owing to his arrest in Hayti. These amounted to about $750,000. The
most extraordinary claim was the claim for damages to his person, in
the matter of his arrest and captivity, and the loss of his wife,
children and home, for all of which he charged $300,000.

The claimant pressed his claim persistently to the State Department;
and in the year 1884, when Mr. Frelinghuysen was Secretary of State,
a protocol was entered into between him and Mr. Preston, then minister
plenipotentiary of the republic of Hayti, by which this claim, with
another large claim in behalf of A. H. Lazare against the republic of
Hayti, was submitted to an international arbitrator,--the Hon. William
Strong, formerly a justice of the Supreme Court of the United States.
The republic of Hayti retained Charles A. de Chambrun and myself as
counsel for the defence. This hearing occupied one year of time, and
the documents and the testimony taken covered two thousand printed
pages. The investigation showed that Pelletier was born at
Fontainebleau in France in the year 1819. At the age of fourteen he
ran away from his home and country and came to the United States, where
he found employment on board a ship, which was owned and navigated
by one Blanchard of the State of Maine. From about the year 1835 to
the year 1850, Pelletier was employed upon shipboard in various menial
capacities, until finally he became master of several small vessels,
which were employed on short voyages in the Caribbean Sea and on the
coast of South America. About the year 1850 he appeared in the city
of New York, and between that time and 1859 he was in the city of
Chicago, where on one occasion and as the representative of some local
party he was a candidate for alderman. He was also engaged for a time
in the manufacture of boots and shoes at Troy, New York.

In the autumn of 1860 there appeared a statement in the newspapers that
a bark called the _William_ had been arrested and condemned at Key West
upon the charge of having been fitted out for the slave trade. Guided
by that notice, Pelletier went to Havana, and employed an agent to go
to Key West and to purchase the bark. The purchase was made at a cost
of $1,504. In Pelletier's statement of his claim, he asserted that he
paid something over $10,000 for the vessel. From Key West the vessel
was sent to Mobile in charge of a man named Thomas Collar, who became
Pelletier's mate, but who was known on the vessel as Samuel Gerdon. At
Mobile the _William_ was fitted out for the voyage under the direction
and apparent ownership of a firm in that city known as Delauney, Rice
& Co., of which Pelletier claimed to be a member and proprietor to the
extent of $50,000, the patrimony which he had received upon the death
of his father. The vessel was freighted with lumber, and was cleared
for Carthagena, New Granada, in October. She arrived at that port
late in November. The investigation showed that a portion of the lumber
was placed upon the deck when there was space below where it might have
been stored. It appeared also that the vessel contained a large number
of water casks, some twenty or twenty-five, about twenty pairs of
manacles, a quantity of ammunition, and that the number of sailors was
considerably in excess of the number required for the navigation of
the vessel.

At Carthagena Pelletier made a contract with a colored man named Cortes,
to carry him with his wife and children and servant to a point on the
coast east of Carthagena, known as Rio de Hache. This contract he
never performed. The original object of the voyage, as he alleged,
was to obtain a cargo of guano, at an island which he named Buida. As
a matter of fact, there is no such island, or at any rate none could
be found on the maps, nor was its existence known to the officers of
our Government who had been engaged in taking soundings in the Caribbean
Sea.

While the _William_ was at Carthagena, one of the men deserted and
notified the commander of a British man-of-war that the object of the
voyage of the bark _William_ was a cargo of negroes to be carried to
the United States and sold as slaves. Following the desertion of this
man, Pelletier left Carthagena and, instead of proceeding to Rio de
Hache, which was understood to be the destination of the British man-of-
war, he took a northerly course toward the island of Grand Inagua.
Upon this change of the course of the vessel, Cortes became alarmed for
his safety, and he urged Pelletier to put him ashore, and especially
for the reason that the shades of maternity were falling on his wife.
After a delay of ten days, Pelletier consented to land him, which he
did at Grand Inagua, and secured in payment the goods and effects which
Cortes had on board the vessel, and which were understood to be of the
value of $500 or more.

In the month of January, 1861, Pelletier arrived in the harbor of Port-
au-Prince, Hayti, where he was accused of being engaged in a slave-
trading expedition by five of his men whom he had landed and caused to
be put in prison on the charge of insubordination. The authorities were
so well convinced of the unlawful character of the expedition that they
ordered Pelletier to leave without delay. He was conveyed out of the
harbor by an armed vessel, and upon the understanding that he was to
sail for New Orleans. As a matter of fact, however, he employed the
months following, until April, in expeditions among the islands of the
Caribbean Sea. In the course of the investigation, Pelletier appeared
on the stand as a witness. In a series of questions which I put to
him, I asked for the names of the vessels which he had commanded,
previous to the voyage of the _William_. Among others he mentioned the
_Ardennes_, which was an American ship, registered. It turned out upon
further investigation that that ship was fitted out by him at
Jacksonville in the year 1859, and cleared for the Canary Islands. Her
cargo consisted of rum, sugar, cigars and tobacco. From the admission
of Pelletier it appeared that he never reached the Canary Islands, but
made the coast of Africa, near the mouth of the Congo River. Upon
being pressed for a reason for the change, he stated that he had been
driven there by a storm. We were able to cause an examination to be
made of the records of the _Pluto_, a British man-of-war, that
discovered the _Ardennes_ near Magna Grand in April, 1859. The officers
of the _Pluto_ boarded the _Ardennes_, and made such an examination as
they thought proper. The captain made this entry after an examination
of the vessel's papers and register, namely: "Which, thought not
appearing to be correct, I did not detain or molest them." The
_Ardennes_ lingered in the vicinity of the mouth of the Congo, where she
was arrested by the officers of the United States ship _Marion_, under
command of Captain Brent. The results of the examination which he
made and the circumstances of which he obtained knowledge were such that
he took possession of the vessel and sent her to New York upon the
charge of being engaged in the slave trade. The evidence produced at
New York was not sufficient to lead the court to condemn her, but the
judge gave a certificate that there was probable cause for her arrest.

The real character of the voyage of the _William_ from Mobile was
finally established beyond all controversy. In the year 1880, a treaty
was made between the United States and France, by which an international
commission was created for the purpose of determining the validity of
claims made by citizens of the United States against France and of
claims made by citizens of France against the United States. Among
the claimants against the United States were two Frenchmen by the name
of Le More, residents of New Orleans. At the time of the capture of
New Orleans in the year 1862, these men had in their possession a large
sum of money belonging to the Confederate government. By the
proclamation of General Butler, made immediately upon the capture of
the city, all intercourse with the Confederate authorities by residents
of New Orleans was interdicted. Notwithstanding the proclamation, the
Le Mores contrived to convey the funds in their possession across the
line, and to procure their delivery to the Confederate authorities.
General Butler, having obtained knowledge of this transaction, had the
Le Mores brought before him. He then questioned them, and upon his
own judgment and without trial he sent them as prisoners to Ship
Island, where they were confined for a time with an attachment of a
ball and chain. Each of these men presented a claim to the commission,
and, there being no defence, an award of $20,000 was made to each. If
General Butler had convened a military court or commission, as he should
have done, and had obtained a conviction, as he would have obtained one,
he would not have subjected the United States to the judgments which
were rendered finally.

In that hearing, De Chambrun represented the Government of France and I
represented the Government of the United States. Thus having knowledge
of the Le Mores, who were yet in New Orleans, we applied to them for
the purpose of ascertaining the character of Delauney, Rice & Co., and
also whether there was any person living who had knowledge of the
fitting out of the bark _William_. They found a man by the name of
Louis Moses, who had been a resident of New Orleans since the year
1852, and who was well acquainted with the house of Delauney, Rice &
Co., having transacted business for it, and who was himself concerned
in the fitting out of the bark _William_. He had indeed invested, in
one form or another, the sum of $15,000 in the enterprise, of which he
had evidence in writing. He stated that the object of the voyage was
to obtain a cargo of negroes in some of the islands of the Caribbean
Sea, and to bring them to a desert island on the west bank of the
Mississippi, near the mainland of Louisiana; in fine, that there was
no purpose to obtain a cargo of guano.

When the hearing commenced, in the year 1884, Pelletier came before the
arbitrator in perfect health and with the appearance of a man of ability
and of fortune. After an acquaintance of about a year I was able to use
this language in my final arguments: "It is a singular circumstance
that Captain Pelletier has not produced an original paper or document
in support of his claim. He is sixty years of age or more. He is a
man not deficient in intellectual capacity, whatever else may be said
of him. He is endowed by nature with ability for large and honest
undertakings. He claims to have had an extensive business experience;
to have been the possessor of large wealth; to have been trusted in
fiduciary ways; and he comes here and claims compensation for a great
outrage, as he alleges, upon his person and his rights; and yet he has
not produced a paper that has the signature of any being, living or
dead, by which he can sustain the claim he makes. What is his answer
in regard to the absence of papers? It is that they were on board the
bark _William_. According to the best information we can obtain, that
bark was not less than twelve or fifteen years of age. We know that it
did not much exceed two hundred tons burden. It was bound on a voyage
into tempestuous seas; and, leaving behind him wealth, as he says, to
be measured by the million, he embarks on that vessel with all his
papers, including title deeds, articles of copartnership, powers of
attorney, and preliminary accounts relating to unsettled affairs. He
is a member of the house of Delauney, Rice & Co., in which he had
deposited his patrimony to the extent of fifty thousand dollars; and
he carries away on that frail bark all evidence of his investment in
that firm. He had, he said, a partnership agreement; he had accounts
of profits that had been rendered from time to time,--and all are gone.
He had a dear wife and two children, for whose loss he now demands large
compensation; and yet he carried away the evidence of which their right
to his estate would have depended, in case of his death. The statement
may be true, but in the nature of things it is not probable. That we
may believe a statement of that sort, evidence is required, not from
one man unknown, not from one man impeached, but from many men of
reputable standing in society. It is not to be believed that a man
who had been engaged in transactions measured by hundreds of thousands
of dollars, through a period of ten years, should take every evidence
of those transactions on board a vessel of hardly more than two
hundred tons burden, manned by a crew composed of highbinders, as he
has described them, and sail to foreign lands, over tempestuous seas,
upon the poor pretext of procuring guano for the plantations of
Louisiana,--and this, as he says, when war was imminent."

In my argument to the arbitrator I attempted to trace the voyage of the
_Ardennes_ and the voyage of the _William_ with as much minuteness as
seemed to me to be wise under the circumstances, and for the sole
purpose of establishing the charge that Pelletier was engaged in the
slave trade. The character of the voyage of the _Ardennes_ was
important in view of the rule of law that, in the trial of a person
charged with the crime of slave-trading, evidence is admissible which
tends to prove that the accused had been engaged in similar
undertakings at about the same time.

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