2d Session.

No. 347.

IN THE SENATE OF THE UNITED STATES

MARCH 9, 1880.-Ordered to be printed.

Mr. PENDLETON, from the Committee on Foreign Relations, submitted the following

REPORT:

[To accompany bill S. 1441.]

The Committee on Foreign Relations, to whom was referred the memorial of Sam. C. Reid, on behalf of the captain, owners, officers, and crew of the late United States private-armed brig General Armstrong, their heirs, executors, administrators, or assigns, report:

That the claim set forth in this memorial has been before the govern ment, in one form or another, for sixty-five years. It has been the subject of much diplomatic correspondence with the government of Portugal. Its validity against that government has been asserted by Messrs. Monroe, Adams, Forsyth, Webster, Upshur, and Clayton, Secretaries of State under the administrations of Presidents Madison, Monroe, Jackson, Tyler, Polk, Taylor, and Fillmore. It has received the sanction of the Committees on Foreign Relations of the Senate and House of Representatives in the Thirty-third and the Thirty-fifth Congresses. It has received the favorable adjudication by a majority of the judges of the Court of Claims; and, although the decision was reversed on a rehearing, the reversal was also by a divided court on a question of technical legal right. It is now presented by the Secretary of State with the recommendation that an appropriation be made for its payment.

The event out of which the claim arose is most creditable to the valor and skill of American seamen, and in its remoter influences probably secured victory to the American arms at New Orleans. The accompanying papers will give the narrative, which, in romantic incidents, almost equals a tale of the imagination.

The history of the event and of the prosecution of the claim to which it gave rise is to be found in the diplomatic correspondence, the reports of the committees, the reports of the testimony and opinions in the Court of Claims, and the letter of the present Secretary of State.

From a thorough examination of these very voluminous documents, the committee finds the following facts:

First. That in September, 1814, the private armed brig General Armstrong was destroyed by the boats of three British men-of-war in the Port of Fayal, belonging to the neutral power of Portugal.

Second. That such destruction was in breach of the neutrality of Portugal.

Third. That the local authorities of the Azore Islands, as well as the government of Portugal, then residing at Rio Janeiro admitted to the

American minister immediately on the happening of the event that there had been a breach of its neutrality, and, asserting that fact to the British government, demanded satisfaction therefor in the most peremptory terms.

Fourth. That, after fruitless negotiations for many years, President Taylor, in 1850, made a peremptory demand upon the government of Portugal for the settlement of "incontrovertible claims of American citizens upon that government," among which was the claim for the loss of the brig General Armstrong. The government of Portugal, not admitting their validity, but pro bono pacis, offered to pay all the claims except this, which it proposed should be referred to the arbitration of a third power. President Taylor declined this proposal, insisted on immediate settlement of all the claims; and on an evasive answer being given, required the American minister to demand his passports and to leave Portugal in an American man-of-war which had been sent for him.

Fifth. A subsequent administration accepted the offer of the Portuguese government, received payment of the other claims, and submitted this claim to the arbitration of Louis Napoleon, then President of the French Republic. This submission was made without the knowledge of the claimants, and provided only "that copies of all correspondence which has passed between the two governments in reference to the said claim shall be laid before the arbiter."

Sixth. The interpretation put on this article by the State Department excluded all proofs and all arguments except those contained in the correspondence. And in point of fact, not only were the claimants prevented by the government from making such proofs and arguments, but the correspondence of the Fayal authorities and of the Portuguese gov ernment while at Rio Janeiro, admitting the breach of neutrality, was not laid before the arbiter.

Seventh. Louis Napoleon, in 1853, forty years after the event, decided against the validity of the claim on the ground of a doubt as to whether the British forces or the brig commenced the hostilities.

Eighth. Subsequently the committees of both Houses of Congress reported favorably on the claim, and referred it to the Court of Claims. The court reversed its opinion on a rehearing, and decided that these above-recited facts constituted no legal claim against the government of the United States, and thereupon the Senate passed a bill for the relief of the claimants, which received a very large majority of those voting in the House of Representatives; but by reason of the failure of a quorum did not become a law.

On these facts this committee concurs with its predecessors of the Thirty-third and Thirty-fifth Congresses, in holding that these claimants have good title against the government to be reimbursed for their loss, and accordingly report a bill authorizing the payment of the amount proven before the Court of Claims, to wit, $70,739.00.

The committee does not doubt the power of the government to submit this claim, or any other claim, however just it may be, to arbitration, or even to surrender it, for reasons of State policy or public interest, or question the finality of the arbitrament; but it maintains with entire confidence and on grounds of the simplest justice, which is the highest expediency, that if the government, either to secure a peace or other advantage to itself, or to obtain the payment of other claims, or to subserve any public or private interest, surrenders the claim of any individual, or if for any such inducement it refers to arbitration any just claim, limiting the proof or the argument which might be made in its

behalf, or refusing or neglecting to produce the proofs which are within its knowledge and control, the government is bound ex æquo et bono to compensate his loss to that individual.

In this case the government did submit this just claim to arbitration, in order to secure the payment of other claims, did limit unduly the proofs and arguments to the diplomatic correspondence, and did neglect to lay before the arbitrator a part of the correspondence which was entirely within its control.

[46th Congress, 1st Session. Senate Mis. Doc. No. 13.]

Letter from the Secretary of State to the Chairman of the Committee on Appropriations, communicating information in relation to the application of the heirs of the claimants of the late pricate-armed brig General Armstrong, for compensation for the destruction of said brig by the British fleet, at Fayal, during the war of 1812.

DEPARTMENT OF STATE,

Washington, February 25, 1879.

SIR: I have the honor to acknowledge the receipt of your communication of the 8th ultimo, inclosing the memorial of Samuel C. Reid, in behalf of the claimants of the private-armed big General Armstrong, and requesting "with as little delay as convenient, any recent information in the possession of" this "department, with its views as to the justice and equity of this claim."

In reply I have to state that by Executive reference of the 27th ultimo, to this department, of a communication addressed to the President by Sam. C. Reid in behalf of the claimants of the General Armstrong, relating to a certain claim growing out of the liability of the government under a treaty with Portugal of the 1st of September, 1851, submitting this claim to arbitration, the matter was laid before the law officer of this department for a thorough examination. His report, with the papers referred to, is submitted here with for your information.

This department has no hesitation in approving of the justice and equity of the claimant's appeal to his own government.

The attending circumstances would seem to justify this department in recommending that the report, with the papers herewith inclosed, be presented to the Senate for the consideration and action of that body, with a view to an appropriation. I have the honor to be, sir, your obedient servant,

Hon. WILLIAM WINDOM,

Chairman of the Committee on Appropriations, Senate.

WM. M. EVARTS.

DEPARTMENT OF STATE,

Subject: The case of the brig General Armstrong.

Law Bureau, February 8, 1879.

Letter of Sam. C. Reid, esquire, to the President, January 27, 1879.

On the 27th ultimo Mr. Reid addressed a letter to the President, the material point of which is this:

"After a full investigation of all the official correspondence, documents, and evidence in this case, should a favorable opinion be entertained by the Secretary of State, I would respectfully ask that his report be submitted to Congress, recommending the appropriation of a sufficient sum to pay the claimants, as proved before the Court of Claims."

Upon this letter is the following autograph indorsement of the President: "Respectfully referred to the State Department for investigation, if required. "R. B. HAYES.”

The case has been investigated again and again during the last fifty years, and its history is well known in this department, in Congress, and in the Court of Claims. That history is contained in three printed volumes now before me, and which I have examined sufficiently to enable me to state with correctness the few preliminary facts essential to a consideration of what I think is the only point now in the claim. The Armstrong was an American privateer during the war of 1812 between the United States and Great Britain, commanded by Capt. Sam. C. Reid. She put into the harbor of Fayal in September, 1814, for fresh water. The Armstrong was immediately

followed by three British men-of-war, attacked under the guns of the Portuguese fort by a fleet of twelve armed boats, which, after a most gallant fight, she defeated with terrible slaughter to the British and with a loss to the American brig of only one lieutenant and one man killed and two lieutenants and five men wounded. The next day one of the British ships, a frigate of 18 guns, was brought up within cannon range of the Armstrong, and after renewing the attack, Captain Reid, deeming further resistance useless, he, with his crew, after hastily disabling the brig, abandoned her. The British completed the destruction of the vessel by burning her to the water's edge.

This is the whole story of the outrage, but the benefits that ensued from it to the American cause are shown in the fact, clearly established, that this British fleet, intended for the capture of New Orleans, was kept busy by the Armstrong long enough to enable General Jackson to reach that city and save it.

Demand for reparation to the claimants was made on Portugal by this government, and was continued under every administration from President Monroe to Fillmore. Under the administration of President Taylor the demand was made in the most imperative diplomatic manner, saying that in the event of refusal the President would feel obliged to resort to the only alternative left him to secure an adjustment of the claim, after first taking the sense of Congress on the subject, and a United States frigate was dispatched to the Tagus to bring our minister home in the event of failure of the negotiations. Nothing was effected; the minister took his passports and came home. An offer had previously been made by Portugal to submit the claim to the arbitration of the King of Sweden. This had already been declined by our government. Soon after President Taylor died, and under the administration of President Fillmore, Mr. Webster being then Secretary of State, a convention was concluded (26th of February, 1851) between the United States and Portugal, submitting the question to the arbitration of the President of the French Republic. In November, 1852, his decision was announced (Louis Napoleon having then become Emperor) against the United States. Any one reading that decision, I think, must see that the officer charged with the examination of the facts by the President of the French Republic must have ignored in a great degree not only the evidence furnished by this government ou the part of the claimant, but also the evidence furnished by the report of the governor of Fayal. Where the arbitrator found evidence to justify the statement in his decision that the Americans began the attack it is difficult to conceive.

The claimants were not allowed, under the terms of the treaty, to submit any evidence beyond the correspondence already on file in the Department between the two governments, nor were they permitted to present any argument. The submission was not with their consent. I know that it was contended on the part of the government, in the Court of Claims and in the debates in the Senate, that it was with their consent; but a perusal of the arguments pro and con, no less than the decision of the courts, as well as the passage of the bill for claimants' relief by the Senate-the same bill receiving a large majority vote in the House, but failing because a quorum was not present-all combine to dispel this idea of the claimants' consent. All these facts are verified by the documents before me, and are carefully summarized in a memorandum accompanying Mr. Reid's letter, which I submit herewith.

Now, as I have already stated, there is but one point in the case for determination, namely: Have the United States, under all the circumstances, incurred an obligation to make reparation to their own citizen, the private claimant? In my opinion such an obligation does rest on this government, and even if it be admitted that the result of the international submission is a legal bar which this government may plead against Reid's claim on the United States (which I do not admit it is), still the obligation rests on higher grounds between the government and its citizen, and it is bound, under the extraordinary circumstances of this case, in equity, in morals, and in honor, to discharge that obligation. Congress alone can do so, and the question for the Secretary's decision is whether he can with propriety comply with the claimant's request, namely, to accompany the presentation of the claim to Congress with a letter recommending an appropriation for its payment. I am sorry to have to say that the precedents and usages of the department are against such a course; such recommendations, when made at all by the Secretary of State, are only made upon a call from Congress or from a committee of either house having the claim before it. This is the invariable rule in regard to private claims.

Respectfully submitted.

HENRY O'CONNOR.

I now learn, since the above report was prepared, that Senator Windom, chairman of the Committee on Appropriations of the Senate, had addressed a letter to the department asking for the information and suggestions desired by Mr. Reid. This may obviate the objection stated in the conclusion of the report.

HENRY O'CONNOR.