patch also stated that you gave information to Mr. Wells, the claimant, of the before-mentioned adjustment and remittance.

In that dispatch you refer to a note addressed to you by Señor Albuquerque, Brazilian minister, and secretary of state for foreign affairs, no copy of which was found among the documents which accompany the dispatch. The Department therefore reserved the subject for consideration until the deficiency which I have indicated should be supplied. Mr. Gross's dispatch of the 24th October, No. 56, was received on the 24th of December, and it supplies the deficiency mentioned. The Department has taken your account of the adjustment of the claim, which you have made, into consideration, but has not yet reached a conclusion thereon. The result will be made known to you at a future time. During the examination the fund, said to be £5,000 sterling, or such part of it as may be realized, will be held in the Department until the President's decision shall be made.

I am, &c.,

No. 69.

WILLIAM H. SEWARD.

Mr. Seward to Mr. Stanbery.

DEPARTMENT OF STATE,

Washington, January 17, 1868.

SIR: I have the honor to inclose herewith a report from the examiner of claims in this Department upon the claim of Mr. Lemuel Wells against the government of Brazil in the matter of the Peruvian ship Caroline, and to request your opinion whether the government of Brazil is justly responsible for the damages resulting from the alleged corruption of its municipal judge in authenticating and ratifying the report of a board of surveyors upon a damaged vessel, the abandonment of her by her master, and the consequent sale of ship and cargo.

I have, &c.,

[Inclosure 1.]

WILLIAM H. SEWARD.

BUREAU OF CLAIMS, January 10, 1868.

CASE OF SHIP CAROLINE, LEMUEL WELLS, CLAIMANT, AGAINST BRAZIL. Lemuel Wells, who from 1832 to 1849 had been consul of the United States at the island of St. Catherine's, Brazil, was in the latter year removed from office upon the complaint of Mr. Todd, then our minister at Rio, and, after an investigation, conducted by the secretary of legation, dispatched to St. Catharine's for that purpose. The principal reason operat ing to affect his removal appears to have been his refusal to conform to the decision of the minister upon a question of consular duty on which he had sought the minister's advice; I think there is nothing in this affecting his moral character. Some evidence, however, was presented, and the secretary of legation reported a general rumor and belief at St. Catherine's that Mr. Wells had been in the habit of abusing his consular power to coerce the consignment and sale to himself of cargoes of oil from the masters of whaling-ships frequenting St. Catherine's, whose sales and purchases constituted nearly the whole commerce of the island.

At the time of his removal from office, Mr. Wells was engaged in prosecuting, as the agent of insurance companies in New York and Philadelphia, their claim against Captain

Jefferson for the barratrous sale of the ship Caroline and her cargo, by which the insurers had been defrauded.

The Caroline came into St. Catherine's under more or less damage by a storm which she had encountered at sea. She was a Peruvian vessel, with a captain (Jefferson) born a citizen of the United States, but said to have been naturalized in Mexico. All that our Government has to concern itself about her lies in the fact that insurance had been effected upon her by companies in New York and Philadelphia.

I take it as a fact sufficiently proved or admitted, that Jefferson, her master, conceived the idea of procuring a sale of the vessel on the ground that she was unseaworthy, and of purchasing her himself at a false and inadaquate price, in fraud of his owners, and this scheme of fraud seems to have embraced the cargo. To cover this with the forms of law, he wanted an authentication of the simulated condition of his vessel. If there had been at St. Catherine's a Peruvian consul, he would have asked of that officer the appointment of a board of survey to examine the ship and report what it was expedient to do with her; that is, whether it was best to repair her, considering the delay, expense, and inferior value of the ship after the repairs should be completed, or to sell her outright and break up the voy. age.

There was no Peruvian consul at the port. The Brazilian law seems to have provided for such a case by imposing upon a local tribunal, the commercial judge, the duty of authen ticating the report of surveyors on the case. It seems to have been his function to do precisely what a consul, if present, would have done, that is, to designate persons of supposed probity, and acquainted with shipping and its disasters, such as merchants and the like, to make inspection of the vessel, and report what in their judgment the interest of the parties concerned required the master to do. They reported in favor of the sale of the vessel on the ground that the repairs necessary to render it seaworthy would amount to more than three-fourths of its value when repaired. This seems to have been the criterion fixed by Brazilian law to authorize a sale. In point of fact, if their report was true, the repairs including, as was just, the pay and subsistence of the crew during the period necessary to finish the repairs, would exceed the value of the ship when restored to seaworthiness. The surveyors who made this report were four reputable experts of St. Catherine's. This is only of consequence as some apparent excuse for the judge, who approved their report and thereupon sanctioned a sale of the vessel. I assume, for so it appears to have been adjudged by another Brazilian judge, in the action against Captain Jefferson, that the surveyors and the judge were deceived, and that the injuries to the ship were much less than they were made to report, and to approve as correctly valued. It is said by Mr. Webb, that the judge who decreed restitution of the ship and damages against the master, (Jefferson,) found that the Brazilian judge who sanctioned the sale of the ship was himself in a corrupt conspiracy with the master. The quotations which he makes do not prove this; they show the fraud of the master only. The original documents do not show any such decision. It could not be expected that they should, for the reason that the suit against Jefferson was instituted before the same municipal judge, who is now said to have been corrupt in his action upon the sale of the ship. It would appear that in the last stage of the action, after the proofs had been taken, another judge completed the proceedings and delivered the final sentence. This fact accounts for the misunderstanding between General Webb and the Brazilian minister upon the point whether it was the same or a different judge who investigated the conduct of the judge sitting, in the first instance, in authenticating the survey and sale of ship and

cargo.

A sufficient reason why the judge, finally passing upon the case, expressed no judgment or opinion as to the good faith or fraud of his predecessor, is, that no allegation of fraud or corruption on the part of the judge was contained in the complaint against Captain Jefferson, nor was there any evidence bearing upon that point, unless the fact that the judge himself went on board the ship at the time of survey, as by law he appears to have been bound to do, may be so regarded.

But the claimant himself explains the omission of any allegation or evidence of the misconduct of the original judge. He says, in his answer to the fifty-sixth paragraph of the Brazilian minister's letter of March 4, 1857, "The undersigned (Mr. Wells) knew that if the judge had the most distant idea that the correctness of his acts would be drawn in question or that any claim would be made on his government, that this fraud never could be exposed. Not a witness could be found who would dare to testify openly against his district judge or his government."

I think this conclusive. The fact of corruption in the judge is supported by no other evidence than the general allegation of the claimant, and such presumption as there may be that a doctor of laws being on board a ship, must necessarily know that she is in fact seaworthy, though two ship-masters, or pilots, a ship-carpenter and a calker report under oath that she is not. So far, then, as the responsibility of the Brazilian government rests on the corruption of the judge, and it rests confessedly on nothing else, there is a defect of proof; at most there is room for suspicion and no more.

Suppose, however, we take it as a part of the case that the municipal judge acted corruptly in authenticating the sale of the vessel, and that there is adequate proof of such corruption, how stands the question of the responsibility of the Brazilian government!

In respect to wrongs occurring under judicial administration, one government is responsible to another when, to the subjects of the latter, justice has been denied, in a case admitting of no doubt, (in re minime dubea,) all modes of appellate revision have been exhausted, and the executive, (representing to foreign powers the collective state, irrespective of its internal distribution of governmental functions and duties,) having notice of the fact, persists in refusing any redress. No government undertakes to guarantee the infallibility of its judicial tribunals either to its own subjects or to strangers. It provides such machinery for dispensing justice in the general interest and not for any financial profit of its own as a corporation. To maintain courts is a burden and not a benefit to a government. So far as it is conceivable as having a private interest separate from the common interest of humanity, all that it is bound to do, all that it is capable of doing, is to exercise reasonable care and vigilance to secure the services of capable and honest judges. No human prudence or sagacity can prevent the employment of judges who are sometimes incapable, in instances very rare corrupt. It seems to me the responsibility of governments for corrupt judges is like that of a man for the acts of a vicious dog. He must be shown to have known that he was vicious, and to have neglected all means to restrain him, before he can be made answerable for his biting a stranger.

It is essential to anything like reasonable dispatch in the administration of justice, and to calm consideration by a judge, that he should be irresponsible for errors of judgment. We hold him liable only for willful misconduct, and then only criminally, or by impeachment-not in a civil action by the party aggrieved. It is necessary that it should be so, for who would act as judge if every decision exposed him to a litigation with one or the other of the parties contesting before him?

Now, assuming that Mr. Lopez Falcoa acted judicially in respect to the survey and sale of the Caroline, and also acted corruptly, what more could we ask of Brazil than in a similar case would be done for our own citizens, or a foreigner who, in this country, should have suffered such a wrong? We would examine the complaint, when it was preferred through the appropriate tribunals, convict and punish him if the proofs warranted it. Till we have been asked to do this, and have refused to hear the proofs, there can be no ground for complaint against the government.

Nothing of this sort has been asked of Brazil. In the only case which Mr. Wells presented for judicial action he obtained all the relief he asked for-a declaration that the sale of the ship was void; a decree for its restitution, which was executed; and judgment against the only person complained of (Captain Jefferson) for the damages which had resulted. The claim of Mr. Wells is, that whenever a judge has acted corruptly, the government which commissioned him is responsible directly for any damages which his action may Lave caused. No such doctrine can be maintained except in a case where the judge acts in behalf of the government, and the latter receives the fruits of his unjust decision. If, for instance, a judge should willfully and corruptly condemn a ship upon false charge of violating eur revenue laws, and the Government should receive the proceeds of the sale, I should think it reasonably responsible for such proceeds, on the ground that it could not avail ited as a defense of the corruption of its officer acting for the benefit of its treasury. The disnction and the doctrine are thus stated by Mr. Attorney-General Cushing, (7 Opinions, :) "Governments hold themselves responsible to individuals for injuries done to the Latter by public officers, in the collection of the revenue or other administrative acts of governmental relation, but not for the errors of opinion or corruption even of administrative, jacial, or ministerial officers, when such officers are administering their public authority in the interest of individuals as distinguished from the Government."

I have assumed thus far that the sale of the Caroline was under a mandatory decree of be municipal judge; I think it has barely that character. The general law of shipping, common to most commercial nations, authorizes the master of a vessel to sell her in a case of Lecessity; that necessity must be proved as well for his own protection as for that of the purchaser. To facilitate the taking and preservation of the evidence in such cases it is common to put upon the consular officers of a nation the duty of appointing boards of survey upon damaged vessels sailing under the flag of their nation. All that our consuls do is to anthenticate the proceedings. The French code of commerce authorizes the master to sell Es vessel in case of its innavagability, lawfully ascertained, and with the permission of the consul. I think, from the statements of the Brazilian minister, that their judge in such cases acts only in the absence and stead of a consul of the nation to which the ship belongs, and that his function is not to order a sale, but to secure the proof of the master's right to sell, and give credit to his assertion that the facts exist which authorize him to sell. He acts in aid of the master, not in virtue of any control over him or over the ship. In this very case I find (page 52 of documents) the last acts affecting the vessel are the captain's petition reciting the survey, the estimated cost of necessary repairs, and the value of the ship when 80 repaired, which facts, he says, place the petitioner in the circumstances described in a law which he cites, and consequently under the necessity of abandoning the voyage, and to sell the vessel. Therefore he prays your honor "to please to make record of this his abandonment, and to publish proclamation for the sale of the vessel, and after the lapse of eight days cause the same to be effected by public auction, and your petitioner, &c., E. M. Jefferson." The entry there is:

"Granted, and to proceed according to the formalities of the law, observing the dispositions enjoined by the decree [law] above mentioned with regard to the consul of the respective nation.

"Desterro, 4th of August, 1847.

"FALCÃO."

I think, therefore, the Brazilian minister is substantially right, when he says of such cases: "The ministry of the judge who exercises the jurisdiction is purely passive, that is to say, it excludes, on the part of the judge, all inquiry as to the ground on which the petition addressed to him is founded." He is rather a register or notary than a judge. If he acted in such a character as to be divested of judicial immunity, in a civil action, then the claimant should have sought that remedy against him, and the government could only be responsible when it had obstructed, or defeated a first decision, or had sanctioned and upheld a palpably unjust one. There is no pretense that any such remedy has been sought in this

case.

It is perhaps worthy of consideration, as General Webb speaks of the sale as having been made by the decree of a court of admiralty, that while the English courts deny that sale for mere unseaworthiness is within the proper admiralty jurisdiction, our own courts re gard the proceeding in much the same light as does the Brazilian minister. Thus Judge Story, in the case of the schooner Tilton, (5 Mason, 465, 474,) commenting upon an Euglish case, in which Lord Ellenborough had denied the jurisdiction, says, "I agree that in such a case the decree of sale is not conclusive upon the owner or upon third persons, because it is made upon the application of the master and not in an adverse proceeding. But I cannot but consider it as strictly within the admiralty jurisdiction. It is prima-facie evidence of a rightful authority, but no more."

Professor Parsons (Maritime Law, vol. 1, page 45,) says, "It would seem that the courts of the country to which the ship belongs will look behind the judgment in admiralty, receiving the decree as of little more authority than the report of surveyors in a similar statement on the authority of which it probably rests."

The same function which in this case was exercised by the municipal judge is at the port of New York exercised by the board of port-wardens, (4 and 7 Stat. at Large, 88,) who are made by law "exclusive surveyors of any vessel which may have suffered wreck or damage, or which shall be deemed unfit to proceed to sea," and are required to make record of such surveys, and are the judges of the repairs necessary to render the vessel again sesworthy. I think no mortal has ever imagined that the State of New York is responsible for their misdeeds, any more than it is for those of an inspector of flour or beef.

In my judgment this claim is groundless. It would be of dangerous consequence to this Government to allow a precedent which could be turned against itself in similar cases. But if it has any merits they are at least so doubtful as, in my judgment, to make it discreditable to this Government to reject the arbitration tendered by Brazil. I think the money which has been paid over, under the duress of a threat by our minister, should be held to abide the result of such arbitration, upon which the claimant may support his case if he can. The amount involved is hardly of consequence enough to invite a Government to arbitrate upon it. One of the foreign ministers at this capital, if he will accept the office, would, I think, h be a more appropriate umpire.

Such a recommendation results only from the fact that the money is actually in our hands, If it were not I should be in favor of abandoning the claim.

No. 70.

Mr. Webb to Mr. Seward.

E. PESHINE SMITH.

No. 59.]

LEGATION OF THE UNITED STATES, Petropolis, February 10, 1868. (Received 22d June.)

SIR: The last steamer was so much behind time in her arrival that I had but Sunday and Monday to attend to the contents of your dis patches.

In reply to your observations in regard to the settlement of the Caroline claim, I certainly did not lose sight of the fact that, as you justly say, to have transferred the claim to Brazilians, as Mr. Wells suggested, in advance of its settlement, "would certainly have weakened the moral, and annulled the legal, right of this Government further to interfere in prosecuting the claim."

I, therefore, merely said to the party who took the matter in charge, that if the government could be induced to reconsider its decision and pay a reasonable part of the claim I should be content to receive £5,000. On reference to my dispatch you will find that I wrote thus:

Iexhibited Mr. Wells's letter, and instead of asking £25,000 in gold, agreed to accept a bill on London for £5,000, leaving, at the disposal of the party with whom I treated any surplus which might be obtained. That is, I agreed to sell the claim (I did not sell it) for £5,000 instead of £25,000.

Whether Zacarias or any other member of the cabinet who opposed the settlement of the claim, had the slightest suspicion of what had oc curred or were interested in that occurrence, I do not know and have no desire to learn. But I am very certain that both the minister of foreign affairs, Sa Albuquerque, and de Amaral, knew nothing of it, and attributed, with evident satisfaction, the change in Zacarias to my note and threatened action, which they had both predicted, and for so doing had been laughed at. And you will perceive that I studiously avoided doing anything calculated to waive or in any manner compromise our legal right to enforce the claim of an American citizen, simply giving my promise that if that claim were recognized a certain specific amount would be received by me in full satisfaction thereof.

I learn now, for the first time, from your dispatch that Mr. Wells was removed from his consulate "for improper official conduct," and I am not a little surprised at the information, because, when in 1862-763, I was disposed to look with indifference upon his claim and to acquiesce in its rejection by the Marquis d'Abrantes, as it previously had been by Paranhos, I was rather rebuked by the Department of State, and informed that it was looked upon by our Government as a legal, equitable claim. It was in consequence of this information that I entered into a very critical examination of all the circumstances connected with the affair, from the arrival of the Caroline in the harbor of St. Catharine's, in June, 1847, until the present time. That investigation. resulted in a thorough conviction, that as against Brazil the claim was eminently just and to be enforced, while Mr. Wells appeared to me as a mere speculator, exhuming the old and forgotten claims of defunct insurance offices, which, if collected, would in no manner benefit the widow and the orphan, who had, doubtless, suffered from their failure. This, however, was no business of mine, but it confirmed the unfavorable impression made upon me by Mr. Wells, when he called upon me in 1861, before I left New York, and also by his letters which he continually addressed to me, and to which I declined replying, except through the Department of State.

When at home in the spring of 1866, Mr. Wells called upon me at the Everett House in New York, and informed me that he had an offer from a Philadelphia house to purchase his claim, giving in payment a Small steamboat to ply between Montevideo and Buenos Ayres, and wished to know whether, if he sold the claim to the parties named, I Would promise them to do all in my power to collect the claim. I stated, in reply, that I was the agent of the Government, not of claimants against Brazil, and that whatever claim the Government ordered me to present and advocate it was my duty to strive to collect, irrespective of the claimants. And, in like manner, the Government had a simple duty to perform, and when wrong had been suffered from another nation, to demand and enforce redress, no matter who the citiZen might be who claimed remuneration for the wrong suffered. Except in a class of claims which, like those of the Alabama, involve a national as well as individual wrong, the Government has no interest S. Ex. 52-11