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five hundred to one thousand dollars, and, after many days of most vexatious neglect and postponement, their counsel advised that the shortest course for getting the ship to sea was to bond her, in conformity with the practice of our courts, letting the suit take its course, if still persisted in.
Application was therefore made to the District Court for the Southern District of New York, in which the libel was pending, to have the ship appraised, and delivered up on bond, - a legal remedy which had never been refused, even to a red-handed slaver. This application was argued on the 14th March, 1866, and was met by the District Attorney with what he called a fatal objection, namely, the wishes of the State Department, — which objection, as will be seen by the Report, prevailed with the court; Judge Betts decided that he had no right to bond the ship, but kindly suggested, while admitting the practical hardship of the case, that recourse might be had to Congress upon acquittal (see Vol. I. pp. 2, 27).
Under this ruling, the ship, with her stores, remained in the hands of the Marshal, while the trial slowly proceeded, and while the judge took some three months more to consider the case, until he gave a decree condemning her, - against, as Judge Nelson afterwards ruled, the law and the evidence.
Simultaneously with his decree of condemnation, Judge Betts found somewhere the right to bond the ship, when pronounced guilty, which he had denied her when untried, and presumed to be innocent, and, on the 20th July, 1866, released her on bond.
Of this course there can be but one explanation. The law had not changed, but the diplomatic situation was no longer the same, and the “fatal objection" of the State Department, which stood in the way at first, was not again interposed.
During this detention of six months, the United States authorities, although requested to do so, had refused to take any measures for the protection and preservation of the ship, as she lay sundrying, leaking, and rotting in their hands.
In this condition, with no commercial demand for such a vessel, and with the right of sale to a belligerent so strenuously contested by our government that no private individuals could afford to attempt it, the ship was appraised, with all her stores and coal, at one hundred and eleven thousand dollars, which shows a ruinous reduction upon her value on the day when she was seized, and the right of sale practically nullified by the Executive.
Under this appraisal the ship was bonded and delivered up, but was at once seized again, under the pretext that her register was irregular in not containing all the names of parties who had an equitable interest in her. This second seizure only cost a few days' delay, and a few thousand dollars’ loss, including a fee to the informers, or their counsel, extorted by the Collector of New York, when Secretary McCulloch promptly ordered the ship released“ upon the payment of expenses."
She was then brought to Boston, and, after extensive repairs, costing, with the actual outlays arising from her seizure, a very large sum, was finally sold at auction, on the 21st September, 1867, after a detention of eight months.
The case came up on appeal on the 20th November, 1867, in the Circuit Court of New York, before Judge Nelson, who ruled out the flimsy and incompetent hearsay testimony previously admitted, and exposed the absurdity of the ground previously taken by the government, that while it may be lawful to sell a ship to a belligerent, it becomes unlawful to do so, if the seller supposes that the buyer will use her. He finally gave a decree reversing the decision of the lower court.
From this decision the government took an appeal to the Supreme Court of the United States ; but, on the 9th November, 1868, ordered its dismissal and the cancellation of the bonds, thus ending a most unnecessary and most oppressive litigation.
To sum up:
The ship was actually detained, including the time needed for repairs, seven months and twenty-eight days. The proceedings against her lasted two years nine months and seventeen days; and it was only by the unexplained reversal, by Judge Betts, of his first decision as to bonding, that she was not actually held during the whole litigation, and thus totally destroyed.
During the trial no proof whatever was produced of any illegal act or intention on the part of the owners, or of any one connected with the ship.
A careful analysis of the testimony produced by the government, during a trial of twenty-six days, would divide it into two very unequal parts.
The first ninety-nine (99) per cent (much of it a farrago of hearsay, irrelevant, and unworthy evidence) tended at most to prove an intent on the part of the owners to sell their vessel to a belligerent.
When Judge Nelson, on the appeal, indicated his opinion that this intention was perfectly lawful, the prosecution fell back upon the other fraction of the evidence, which, unlike the first, had been gravely and thoroughly established by a competent witness.
This being all which the District Attorney could cite before Judge Nelson to show a criminal intent, namely, that of fitting out the ship to cruise against Spain, we give this fraction in detail thus, as it stands recorded, Vol. I. page 105.
Deputy Marshal Jarvis deposed that when he arrested the ship, he found, besides the officers and crew, Mr. R. B. Forbes on board.
“Q. Did Mr. Forbes make any statement to you or in your presence as to where she (he?) was going ?
“ Ans. Mr. Forbes stated that he was sorry he missed his trip down to the Narrows on the boat, and made that remark to the mate.
“ Q. Did Mr. Forbes have any luggage or anything ?
“ Ans. He called for his carpet-bag; it was a black carpet-bag ; a young man fetched it to him, and he took it ashore with him."
The use made of this black and suspicious carpet-bag will be found in Vol. II. page 25, as follows :
“Mr. Courtney. My learned friend asks me what Mr. Forbes did ? Why was he upon the vessel that afternoon, when she steamed up and was ready to sail ? '
66 Mr. Evarts. It was his vessel.'
“Mr. Courtney. •I tell your Honor you have a right to infer that Mr. Forbes went on with the documents in his carpet-bag, for the purpose of carrying out these negotiations, and delivering over the vessel to some one outside of Sandy Hook. He had the power to prove it, if it was not so !'"
The counsel for the owners, considering the suspicion of an intent to sell to a belligerent of no personal discredit to them, and considering the evidence as having no bearing whatever against them or their ship, had declined to call a single witness, and had argued the case upon the evidence (so called) of the government, just as it stood ; a course abundantly justified by the decision of the Circuit Court.
Had they anticipated the deep and dark significance which the government afterwards sought to attach to the mysterious carpetbag, they might have easily proved that Captain Forbes, like many other old-fashioned ship-owners, generally accompanied his vessels out of the harbor, and always carried a toothbrush and shirt with him when away from home.
Now, if the government can stop a ship, on such evidence, for eight months, and burden her owners with litigation for three years, for the purpose of reversing the highest judicial decisions, and the American policy of forty years' standing allowing the right of sale, the Executive practically nullifies the right of sale of ships just as effectually as if Congress or the law of nations had forbidden such sale, and can do so again to-morrow, in the face of Judge Nelson's decision reaffirming the law.
Among the blackmailers and informers who infest the United States District Court in New York City, preying upon the mercantile community, affidavits are plenty and cheap; and the slightest encouragement from official sources, domestic or foreign, will bring forth a swarm of them.
The owners of the Meteor hope that this precedent will be worth to the government the large sum which it has cost the individuals who subscribed their means to build a ship for the
government in time of war.
Perhaps its intended purpose was to show the British government that our Secretary of State can detain any ship, however innocent, any length of time, at whatever cost to his own citizens, and thus form a glaring contrast to the guilt and scandal of letting the pirate Alabama fit out, on her cruise as she did, and continue to get her supplies from British ports.
Whatever the motive or intention on the part of our government, the owners of the Meteor feel justified by the facts now established in asserting that they have been made the victims of a real or supposed diplomatic necessity, and that the government arbitrarily used its power, not only in moving the District Court to refuse the usual bonds, but in pressing a grievous and vexatious lawsuit against citizens whom the Secretary of State must have known to be innocent.
Their ship was as much taken and used by the government as if she had been seized and impressed into the transport service.
J. M. F.
SINCE writing the foregoing, our attention has been called to the language used by Mr. Sydney Webster in his argument for the prosecution, as giving the key-note to the motives of the government in pressing their suit against the Meteor. It will be found Vol. I. p. 88, as follows :
“ If the Supreme Court maintains the broad dictum of the Santissima Trinidad, after the late positive utterances of the Department of State on that very point, there will be a conflict of opinion between the executive and judicial departments of the government, on a matter of international law, not at all creditable to the United States, which, since its peremptory demand on England for indemnity for losses occasioned by Anglo-rebel cruisers, cannot well change its attitude.”
If we did not find other ample internal evidence running through the whole proceedings, the above argument of Mr. Webster would conclusively sustain the ground we have taken, - that the Meteor trial was urged in order to nullify or reverse the existing law in the interests of diplomacy, and not to vindicate the law.
J. M. F.