Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 3, 1888, Part II
to Mr. Hubbard.
Washington , April 16, 1888.
Sir: I inclose for your information and files a copy of my letter to Mr. George Cowie, attorney, dated the 13th instant, reviewing the Monitor claim against Japan, and concluding that this Government could not consistently press it further upon that Empire.
I am, etc.,
Mr. Bayard to Mr. Cowie.
Washington , April 13, 1888.
Sir: Referring to previous correspondence and to the representations heretofore made by you to the Department in relation to the Monitor claim against Japan, I have to inform you that the case has been carefully examined in connection with the declination of the Japanese Government to submit it to arbitration, and certain conclusions have been reached which I will now proceed to state.
The facts in the case, as derived from the contemporaneous statements of the captain, chief officer, and chief engineer of the Monitor, and of three passengers made before the consul of the United States at Nagasaki, are as follows:
The Monitor, also known as the Fee Pang, was an American steamer belonging to the firm of Drake & Conklin, of San Francisco, Cal., who, in 1864, were engaged in business at Shanghai, China. On the 3d of July of that year she went from the port of Hakodadi, Japan, bound, it is alleged, to the port of Nagasaki. Encountering adverse winds, she ran short of fuel and water, to obtain which it is stated she entered, on the evening of the 11th of July, a large bay, on which were settlements whose presence gave promise of the needed supplies. This bay was in the dominions of the Prince of Nagato, then in rebellion against the Government of the Tycoon, and was not open to commerce.
What followed is best described by a quotation from a note from the United States consul at Nagaski to the governors of that place dated July 20, 1864.
This dispatch summarizes the statements which had been made a day or two be fore by the witnesses on board of the Monitor as follows:
“Soon after anchoring a boat containing two men came alongside and asked the nationality of the vessel and her business. Reply was given through a Japanese servant, who was on board, that the vessel was American and had come there for a supply of coal or wood and water, which would be thankfully received and paid for At the same time the American flag was hoisted. The men in the boat gave no other response than that the town was a small one and had neither of the articles wanted to spare, and that they would inform the high officer of their wants. As it was night however, the captain concluded to wait till morning.
“During the night many lights were seen moving through the town and boats passes from one town to the other.
“At daylight on the morning of the 12th the persons on board the Monitor were startled by a shot being fired at them from a battery of four 12–pound guns situatec about 500 yards to the eastward of their anchorage.
“The captain immediately ordered steam to be made and in about one hour it was ready. During the intervals the firing was continued from the battery, none of the shot, however, taking effect.
“About the time steam was ready and the anchor was being heaved up, persons ii the town, screened by mats which had been put up during the night, commence firing at the vessel from small-arms, and it is estimated that at least one thousand shots were thrown simultaneously. Twenty-two struck the vessel’s side and remain buried in the wood; the rest went over or fell short. Shots were also fired at inter vals from a battery of eight long guns situated about 2 miles off, but none of these shots took effect, and happily no injury was done to any person on the Monitor by any one of the shots.”
Such were the attacks and the injuries inflicted upon the Monitor, as contempo raneously related by her officers, and by three passengers, one of whom was Mr. Drake a part owner. It is also stated that the captain was another part owner.
What transpired after the firing upon the Monitor is related by the United State consul in the same note, as follows:
“When the anchor was up and the vessel out of range the captain commence throwing shells into the town from two rifled guns he had on board. Twenty-six were thrown, and it is thought nearly all took effect. The town was set on fire in two places, but the flames were quickly extinguished.
“The American flag was hoisted on the ship when the first shot was fired.
“The fuel on board being nearly finished, the captain steamed away, and after much labor for two days, made the island of Tsu-Sima, where he found the anchorages and wood and water sufficient to enable him to reach this place” (Nagasaki).
In addition to the communication to the governors of Nagasaki, from which the above quotations are made, the consul laid the case at once before Mr. Pruyn, then the minister resident of the United States in Japan, who received the consul’s letter at Yeddo, and immediately had a conference with the go governors for foreign affairs, sent [Page 1070] to him for that purpose by the ministers. The result of this conference is reported in a dispatch of Mr. Pruyn to Mr. Seward of the 8th of August, 1864, as follows:
“The Japanese governors very properly asked me to wait till they had received letters from the governors of Nagasaki before entering into the consideration of the subject, engaging, however, to make a speedy and satisfactory settlement of the matter.
“I made no claim, nor do I feel disposed to make any in favor of the owners of the vessel, one of whom was on board at the time.
“While I have no reason to distrust the truth of the declaration that they were destitute of coal and that they were obliged to go into the harbor, I can not forget that while here in 1863 the same vessel entered a port in the territories of Satsuma; and it would be unwise to encourage owners of vessels brought to this country for sale to enter the ports of hostile Daimios, or any ports not open to trade.”
In September, 1864, the treaty powers made a hostile demonstration against the Prince of Nagato, destroyed the batteries of Chosu, commanding the Straits of Simonoseki, and compelled an unconditional surrender. The Tycoon was then required to express his disapproval of the course of his adversary, the rebellious Prince, which he readily did, employing in regard to the firing on the Monitor the characteristic oriental phrase that “he had no language to express his indignation;” and to provide for the payment of the expenses of the expedition, or in lieu of the latter to open more of his ports to commerce. Accordingly a treaty was concluded on the 22d of October, 1864, by representatives of the United States, Great Britain, France, and the Netherlands, on the one part, and by a representative of the Tycoon, on the other, under which his Government agreed to pay to the four powers $3,000,000, “to include all claims of whatever nature for past aggressions on the part of Nagato, whether indemnities, ransom for Simonoseki, or expenses entailed by the operations of the allied squadrons,” or else to open Simonoseki or some other eligible port in the Inland Sea.
In notifying his Government of the conclusion of this treaty, Mr Pruyn, in a dispatch of October 29, 1864, said: “Should the Tycoon be averse to the opening of another port, and fail to make such offer in lieu of the payment of indemnities and expenses, the amount agreed on will not be regarded as unreasonable. But should he make the offer it will be at the option of the four powers to accept it in full or in part payment, and in that event a moderate pecuniary fine maybe imposed.
“In either case provision will be made for a reasonable indemnity for injuries sustained by the Wyoming and Monitor and for the insult to our flag offered by the attack on those vessels, as well as on the Pembroke, the owners of which have received from the Japanese Government a sum which covers their loss as estimated by themselves.”
Subsequently it was arranged that the money should be paid, and in a dispatch of the 20th of January, 1865, Mr. Pruyn, referring to the case of the Monitor, says:
“The Monitor case is now provided for by the convention. I have advised the owners they must now look to our Government. Their case is not a very strong one. The vessel is found wherever and whenever there is trouble in Japan. The consul at Nagasaki had a complaint preferred on them by the governor of the port that the ubiquitous steamer had put into a small port in an island not far distant, it was claimed, for repairs. It is now daily expected here. When I have given the owners an opportunity for explanation I will send a dispatch.”
The next communication from Mr. Pruyn on the subject transmitted a complaint of the Japanese authorities that the Fee Pang had been entering ports not open to commerce and under the dominions of Daimios in rebellion against the Government of the Tycoon.
Still later, on the 30th of August, 1865, the Department received a dispatch from Mr. Portman, chargé d’affaires of the United States at Yeddo, from which I quote the following passages: “At last I am enabled to transmit copies of the correspondence on the subject of the recent unlawful proceedings of the steamer Fee Pang (late Monitor). * * * The facts this case are briefly as follows: In the latter part of February last Mr. H. K. Drake, an American citizen on board of the steamer Fee Pang, late the Monitor, of which he is the principal owner, arrived at the non-opened port of Simonoseki, in the province of the Prince of Nagato, who was then and is still in rebellion against the Japanese Government. While there he took charge of the steamer Senkatsimaro, late the Lancefield, belonging to the Prince, which had been damaged in her action with the Wyoming in July, 1863. Mr. Drake then caused the steamer to be sufficiently repaired so as to enable her to proceed to Shanghai. Accordingly Mr. Drake arrived at Woosung, near Shanghai, on the 22d of March, with the two steamers, the Fee Pang and Senkatsimaro, and about fifty subjects of the Prince of Nagato aboard of those vessels; he was provided with a document purporting to be a power of attorney from the Prince of Nagato, from whom he then, under this power of attorney, bought that steamer for his firm of H. K. Drake & Co., and, after examination of the title, the transfer was made accordingly at the consulate-general at Shanghai.”[Page 1071]
These transactions, it is to be observed, were with the same rebellious subjects for whose previous action in regard to Drake &. Co.’s vessel—for whose presence in the hostile territory distress could not be alleged on the occasion last above described—damages were claimed from the Tycoon’s Government.
The Japanese Government complained loudly of these proceedings, and when the Fee Pang, or Monitor, on the 3d of May, 1865, came within the jurisdiction of the United States consul at Nagasaki that officer at once ordered her to come into port, with a view to prosecute her for a violation of the treaties by entering unopened ports and giving aid and comfort to those who were in rebellion against the Tycoon’s Government. Mr. Drake, who was again found on board, declined to enter at that time, but came in at night, took a supply of coal and three Chinese passengers, and before daylight of the 4th of May had disappeared with the vessel.
In November, 1866, Nathaniel J. Miller filed in this Department a claim, as assignee of Drake & Conklin, for $35,000 as compensation for losses and injuries consequent upon the attack on the Monitor at Nagato. The claim was referred to the examiner of claims for the Department of State, Mr. E. Peshine Smith, who, while reporting on the 6th of February, 1867, that the claimant had a Just demand against the Japanese indemnity fund for the amount of actual damages, said: “I think it clear that if his (Mr. Drake’s) claim for the injury to the Monitor had then (in 1865) been under discussion with the Tycoon, we should have declined to prosecute it for him.” This opinion was expressed by Mr. Smith after a review of what has been above detailed as to the career of the Monitor; and in a postscript to his report he says:
“Upon a conference with Mr. Pruyn, subsequent to the date of the above report, I obtained an impression that the damages are greatly exaggerated, and that it would probably require the taking of testimony in China to ascertain the just amount.”
It appears by a dispatch of Mr. Van Valkenburgh to Mr. Seward, November 2, 1868, that the vessel had repeatedly been offered for sale at Yokohama and at Nagasaki, first for $15,000 and then for $10,000, but without success, as she was deemed unseaworthy. She was finally sold for $8,500. It is also to be observed that while the claim before Mr. Smith was for “direct injuries to the ship, boilers, and machinery by cannon shot” and other things, it nowhere appears by contemporaneous evidence that the ship suffered any serious injury from being fired upon, nor that her boilers and machinery were ever touched by the missiles. The consul at Nagasaki makes no such suggestion; he states that the cannon balls failed to reach the vessel; the marine protest extended, a copy of which is now filed in the Department, contains the same explicit statement and completely sustains the consul’s contemporaneous account, based on the testimony taken before him of those on board, that the only injury the vessel received was from some balls which were fired by the natives from small arms and which stuck in the steamer’s planking. “Twenty-two,” says the consul, “struck the vessel’s side and remain buried in the wood; the rest went over or fell short.”
So far as any insult to the flag of the United States was concerned, that was fully disposed of by the forcible action of the United States with the other treaty powers against the Prince of Nagato. And if the actual damage to the Monitor in consequence of being fired upon be taken as the measure of damages, claim could have been made but for a very inconsiderable amount; for it is impossible upon the contemporaneous evidence to arrive at any other conclusion than that the damages to the vessel were trivial and scarcely appreciable.
The report of Mr. Smith, as above described, was communicated by Mr. Seward, Secretary of State, to Mr. Sumner, of the Senate, on the 10th of February, 1868, without comment, and a joint resolution was subsequently introduced in that body to authorize the Secretary of State to ascertain and pay the amount of damages to the Monitor or Fee Pang “for the injuries sustained from being fired into by the batteries of the Daimio of Nagato in July, 1864.”
This joint resolution was never acted upon, but it may be observed that it contained the erroneous assumption that the vessel was injured by shots from the batteries, none of which in fact reached her.
By an act of Congress approved February 22, 1883, the President was directed to return the Japanese indemnity fund to the Government of Japan, after deducting a certain amount for the officers and crew of the United States ship Wyoming and of the steamer Takiang for services in destroying hostile vessels in the Straits of Simonoseki, the former on the 18th of July, 1863, and the latter in September, 1864. No provision was made for the case of the Monitor, and the indemnity fund has consequently been returned to Japan without any deduction on account of that claim. It appears that in June, 1881, Mr. Walker Blaine, the private secretary of the Secretary of State, wrote to you, as the attorney for the claimants, that unless facts should come to the knowledge of the Secretary of State in the mean time which could warrant a change of view as to the equity of the claim, he would request from Congress, at its next session, authority to adjust it.
The absence of any further action by the Department is explained by saying that the Japanese minister requested you to call at the legation and assured you that if [Page 1072] you would not prosecute the claim further before Congress or the Department, the matter would be settled and paid promptly and “liberally” immediately upon the passage of the indemnity bill. You state that, relying upon these assurances, you took no further steps in the matter, although you say that, “but for the intervention of the Japanese Government, through its then minister, Congress would have no doubt acted favorably on it when it passed the indemnity bill in 1882.”
The Japanese legation, when applied to by this Department for information, denied that any promise to pay the claim had ever been made by the minister or by any one authorized to speak for the legation.
To controvert this denial you have filed your own affidavit as to the minister’s promise, and the sworn statements of two other persons as to promises made by certain persons who were understood to have been employed at times for various purposes by the legation.
Without entering upon these contradictory statements, the Department, as you are aware, instructed the United States minister in Japan, in July, 1885, to lay the case before the Japanese Government in order that it might have an opportunity to consider its equities; and it was suggested that the whole matter might be referred to an arbitrator on the merits.
The Japanese Government having declined this suggestion, after a full examination of the case, it now becomes necessary for this Department to decide whether the claim should be pressed further by the United States against the Government of Japan.
I have therefore to consider, first, the questionable features of the case, arising from the general conduct of the owner of the vessel both before and after he was fired upon, which led Mr. Pruyn to pronounce the case “not a very strong one,” and Mr. Smith to declare, in the report transmitted by Mr. Seward to Mr. Sumner, that he thought it “clear” that if the claim for injury to the Monitor had then been under discussion with the Tycoon the United States would have declined to prosecute it for him.
In the second place, it has been shown that the injury to the vessel was of an exceedingly slight character; that even those who have pronounced the damages claimed to be exorbitant, have erroneously supposed the vessel was seriously injured by cannon-shot; and that no tangible elements of damage have ever been satisfactorily established by the claimants.
In the third place, it would be unfair to press upon the Japanese Government a claim which it has rightly treated as settled with the United States more than twenty years ago, and of which, as Count Inouye informs us, there is no record in the Japanese archives.
In the fourth place, the return of the “indemnity fund” to Japan, with deductions on account of certain claims, and none on account of the Monitor, or Fee Pang, appears as an adverse judgement of this Government upon the latter claim, and estops it from making a demand on the Japanese Government for its payment.
In the fifth place, no avoidance of the conclusion last above stated, or new ground of claim can be derived from conversations with the Japanese minister, or with any of his alleged agents.
At the time these conversations are alleged to have taken place the Japanese indemnity fund was in the possession of this Government, and its disposition was then subject to the action of Congress. This being so, it was the duty of citizens of the United States to present their claims before that body, and any withdrawal, such as has been alleged, of a claim from its consideration, thus forestalling its action, would, if encouraged or approved, be highly detrimental to the public interest. An agreement between a foreign minister and a citizen of the United States, under such circumstances, and for the purpose of influencing Congressional action, would not be one which, even if evidenced in writing, could be recognized by this Government. Under reversed conditions this Government could not for a moment entertain the proposition that it was in any way bound by such a transaction.
Such an agreement, made in the hope of terms more “liberal” than could be regularly obtained, can not be made the basis of an international claim. Nor can evidence of such an agreement be admitted to overcome the act of Congress directing the return of the “indemnity fund,” and not providing for the payment of the Monitor claim. It is a rule of law universally recognized and enforced that evidence of extrinsic facts (not rules of law or acts of legislation) occurring prior to the passage of a bill can not be resorted to to prove the intention of the legislature or to explain its action.
Upon a full and careful review of all the facts and circumstances, it is my duty to inform you that the Department is unable to press the Monitor claim further.
I am, sir, etc.,