Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the First Session Thirty-ninth Congress
Mr. Adams to Mr. Seward
Sir: I transmit herewith copies of the London Times and the Dairy News, containing a report of a case which came up for trial before Baron Martin, of the court of exchequer, involving a claim for goods furnished to persons engaged in running the blockade. The remarks made by the judge are particularly deserving of attention. They seem to have placed the solicitor general, who happened to be retained on the wrong side of the question, in some embarrassment.
I have the honor to be, sir, your obedient servant,
Hon. William H. Seward Secretary of State, &c., &c., &c.
Ellissen and another vs Jorss and another.
The solicitor general and Mr. Thomas Jones Vere counsel for the plaintiffs; Mr. Hawkins, Queen’s counsel, Mr. Mellish, Queen’s counsel, and Sir George Honyman appeared for the defendants.
This was an action by the plaintiffs, merchants in London, against the defendants, who are merchants at Leeds. The declaration was an agreement entered into between them, whereby it was agreed that the plaintiffs should supply the defendants with shipping to the amount of 250 tons for the purpose of enabling the defendants to send a cargo to Charleston to run the blockade. The contract was composed of a series of letters, and the defence was that they did not constitute a definitive contract. The defendants had also pleaded that the contract was illegal, as being in contravention of international law, but this plea was withdrawn. A Mr. Laforce was the person whose ship the plaintiffs had engaged for the purpose of receiving the defendants’ cargo, and the defendants having failed to supply it, Mr. Laforce sent the ship with a cargo on his own account and attempted to run the blockade with her, [Page 40] but ship and cargo having been both captured by a federal ship-of-war, and the voyage having been fruitless, Mr. Laforce brought an action against the plaintiffs for not providing cargo, and obtained £1,800 damages. The present action was therefore brought to recover from the defendants this sum of £3,800 and the costs they had been obliged to pay.
Upon the opening of the case by the solicitor general,
Mr. Baron Martin said he supposed the real question would be whether there was a contract or not.
The solicitor general said that was so.
Mr. Baron Martin stated that he thought upon the correspondence there was evidence of a contract, but he should tell the jury that as to damages they ought only to be nominal. It could not be suffered that persons should openly engage to commit a breach of the Queen’s proclamation, which might have the effect of involving this country in a war with the United States. He would suggest that the case should be taken as stated and some gentleman appointed to fix the amount of damages.
Mr. Hawkins said that he thought it advisable to have the parole evidence of the conversations between the plaintiffs and defendants preparatory to the correspondence taking place.
The solicitor general said that he should have contended that although the ship had been taken in attempting to run the blockade, the freight had been earned as soon as the goods were put on board, and did not depend upon the success of the voyage.
Baron Martin said it was worthy of observation that this was a transaction between parties which went directly to involve this country in awar with the United States, and that of those parties there was only one single English name, Mr. Beach, and it was said that he was not a native Englishman, but a southerner. It was a transaction over which the government of this country had no control, and yet it was one in which they had, no doubt, been seriously blamed.
Ultimately it was arranged that a special case should be stated for the opinion of the court above.
COURT OF EXCHEQUER—December 10.
(Sittings at Nisi Prius at Guildhall, before Mr. Baron Martin and a speciat jnry.)
ELLISON VS. JORSS.
This was an action for the breach of contract to furnish a freight for a vessel.
The solicitor general and Mr. T. Jones were counsel for the plaintiffs; and Mr. Hawkins. Queen’s counsel, Mr. Mellish,” Queen’s counsel, and Sir George Honyman, for the defendants,
The plaintiffs, Messrs. Ellison, were merchants in London, and Messrs. Jorss and North, the defendants, were also merchants, carrying on business at Leeds. The case for the plaintiffs, as opened by the solicitor general, was that in March, 1862, Mr. Jorss called upon Mr. Ellison and said he was in want of a vessel to take some Manchester goods to Charleston—in short, to run the blockade. Mr. Ellison knew that a Mr. Lafone, of Liverpool, had a steamer called the Tubal Cain, which he thought would answer his purpose, and Re made arrangements with him for the conveyance of goods to the amount required by the defendants. A long correspondence by letters and telegrams ensued between the plaintiffs and defendants, the result of which was that the defendants agreed to send 200 or 250 tons of Manchester goods to Charleston by the Tubal Cain, and pay 15 pounds per ton. Subsequently they refused to carry out the arrangement, ostensibly because the vessel was not of the tonnage which they alleged the plaintiffs had represented, but really because they found they could get freight at a cheaper rate. There had been a plea of illegality of the transaction, but it had been withdrawn, and the case presented no complication or difficulty in that respect.
Mr. Baron Martin said that, having looked at the correspondence, he thought there was a contract, but his impression was that the jury could only give nominal damages, because the contract was an illegal one, directly opposed to the Queen’s proclamation, and having a direct tendency to involve the country in war.
The Solicitor General. If there had been a plea of illegality that difficulty might arise.
Mr. Baron Martin. What I suggest is that you should take the opinion of the court as to whether there is a contract; and if they think there is, then that they should appoint an arbitrator to assess the damages on such principle as they may direct.
The Solicitor General. I shall advise my client to agree to that.
Mr. Baron Martin. I don’t think that a person bringing an action upon an illegal contract of this nature can recover damages.
The Solicitor General. Allow me to say a word upon that point. I am the last man to stand up for a contract having the tendency your lordship states.[Laughter. ]
Mr. Baron Martin. The Queen, for the good of the state, and, if possible, to keep the country out of war, issued a proclamation, ordering in the most direct terms that this shall not be done.
Mr. Hawkins. We are quite prepared to go into the box and criminate ourselves, and be cross-examined by the solicitor general.[Laughter. ]
[Page 41]Mr. Baron Martin. I think the course I suggest would do justice to all the parties and save expense.
The solicitor general again reminded his lordship that the plea of illegality had been withdrawn.
Mr. Baron Martin. But neither that nor the fact of the parties choosing to treat the transaction as a matter of honor will blind me or the court above as to the nature of the contract.
The Solicitor General. Mr. Justice Willes took an opposite view of the matter to your lordship.
Mr. Baron Martin. There is no judge for whose opinion I have greater respect, but upon this point I must have a judgment of my own. I cannot think that a jury would give damages for the breach of a contract which is against the Queen’s proclamation for the general good of the community.
The Solicitor General. I believe that the court of common pleas confirmed the decision of Mr. Justice Willes. The learned counsel then stated that in consequence of the defendants not performing their contract, Mr. Lafone, the owner of the Tubal Cain, brought an action against the present plaintiffs for this breach of faith. It was tried before Mr. Justice Willes at Liverpool. Mr. Ellison was advised to set up every possible defence, and among other pleas there was one of illegality; but Mr. Justice Willes held that it was not a good one, and the result was that Mr. Lafone obtained a verdict for £1,885. The Tubal Cain was captured in running the blockade; but that did not signify, as evidence was given at the trial to prove that. It was the custom at Liverpool and London, in this trade, that where the freight was not expressly made payable until the conclusion of the voyage, the freight was earned the moment the vessel started.
Mr. Baron Martin said he never heard of that custom before.
The Solicitor General. I will call the foreman of the jury who gave the £1,885 damages, and whom Mr. Mellish, who appeared for Mr. Lafone, addressed with so much effect. I will also call Mr. George Gladstone.
Mr. Mellish. The jury cut down the damages by one-half. Mr. Justice Willes said the damages ought to have been double the amount.
The Solicitor General. With regard to the question of damages, I may state that my client, in addition to the £1,800, had paid £185 for the costs of Mr. Lafone, and £95 for his own attorney’s costs, and then he has lost all the profits of the voyage. We say that he ought to recover as much as £2,707, or, upon another principle of calculation, £3,707. In conclusion, the learned counsel said that this was one of the hardest cases which was ever brought before a court of justice.
Mr. Baron Martin. I do not think there is any hardship if the party agrees to take the risk of running the blockade.
Mr. Ellison, one of the plaintiffs, who spoke with a foreign accent, said that in March, 1862, Mr. Jorss called upon him and said he was going to Paris to settle with some gentlemen about an expedition to the Confederate States, and that he wanted a ship to take some goods to Charleston. He asked if he (the plaintiff) knew of any ship, and he replied that Mr. Lafone had a ship for which he wanted goods. He asked witness to make inquiries, and then followed the correspondence which had been read. He stated that supposing the defendants had performed the contract, if they shipped 200 tons, he would have received for freight £3,000, and if they shipped 250 tons, £3,700.
After some discussion between the parties, it was ultimately agreed that a verdict should be entered for the plaintiff, damages £2,707 6s. 10d., subject to a special case to be stated for the opinion of the court above.
Mr. Baron Martin said it was worthy of observation that in this transaction, which had a direct tendency to involve this country in a war with the united States, not a single English name appeared except Beach, and the person who bore that name was the consignee of the goods in the southern States, and probably he was an American.
Mr. Hawkins. He is a southerner.
Mr. Baron Martin. Much blame is cast upon the English government in respect of these transactions, which it is almost utterly impossible for them to stop. This transaction is conducted entirely by foreigners in this country, not a single Englishman having anything to do with it. Very likely that, is the history of most others of the same kind. They come over here, and while enjoying the freedom of this country, engage in transactions which have a direct tendency to involve us in war.