COURTS-MARTIAL

Between the year 1880 and the year 1895 there were five general courts-

martial held in the city of Washington and I appeared for the defendants

in four of them.

I was also retained for the investigation of two cases of officers of

the Navy who had been convicted by courts-martial, one of them held in

the waters of China and the other on the coast of Brazil. The latter,

the case of Reed, which may be found in volume 100 of the United States

Reports, became important as the first attempt by the Supreme Court to

define and limit the jurisdiction of the civil tribunals over the

proceedings of courts-martial.

The courts consist of thirteen officers of the service to which the

accused may belong, and by a majority in number they are his seniors in

rank, if the condition of the service will permit such a selection.

A court thus constituted is an imposing tribunal, and in dignity of

appearance not inferior to the Supreme Court of the United States. The

members are well instructed in the requirements of the service, but

their knowledge of the science of law, especially in its technicalities,

is limited. It is the theory of the system that the judge-advocate

will be an impartial adviser of the court and that he will protect the

accused against any irregular proceeding and especially protect him

against the admission of any testimony that would be excluded in an

ordinary court of law.

In fact, however, the judge advocate becomes the attorney of the

Government, especially when the accused has the aid of counsel. His

advice to the court becomes the rule of the court. Questions of

testimony are important usually, and the line between what is competent

and that which should be excluded is often a very delicate line. The

judge should be a disinterested person. It is too much to assume that

an advocate can in a moment transform himself into an impartial judge.

In the case of Reed, which was an application by a _habeas corpus_

proceeding for the discharge of Reed from prison, the Supreme Court

held that it could not examine the proceedings of the court-martial

further than to inquire whether the act charged was an offence under

the rules of the service, and, second, whether the punishment was one

which the court had power to impose.

Thus it follows, that intermediate errors and wrongs whether by the

exclusion or admission of testimony, or by corruption even, cannot be

remedied by judicial tribunals on the civil side.

A partial remedy for possible evils may be found through the appointment

of a judge from the civil courts, or of an experienced lawyer who should

become the adviser of the court-martial, in place of the judge-advocate

--thus leaving to him the duties of an attorney in behalf of the

Government.

XLII

LAST OF THE OCEAN SLAVE-TRADERS*

In the month of April, 1861, a bark, registering 215 tons, anchored in

the bay of Port Liberté, a place of no considerable importance, on the

northerly coast of the island of Hayti, about twenty miles from the

boundary of Santo Domingo. The vessel carried the flag of France, and

the captain called himself Jules Letellier. The name of the vessel

was not painted upon the stern, as is required by our law; but the

captain gave her name as _Guillaume Tell_, bound from Havana to Havre.

He stated that he had suffered a disaster at the island of Guadaloupe,

and that he had been compelled to throw a part of his cargo overboard.

He said also that his object in putting into the port was to obtain

assistance for the recovery of his cargo; and for that purpose he

solicited recruits. The authorities became suspicious of the craft, and

an arrest was made of the vessel, her officers and men. After some

delay the vessel was sent to Port au Prince, where she was condemned

and confiscated upon the charge of being engaged "in piracy and slave-

trading on the coast of Hayti."

Upon investigation it appeared that the true name of the vessel was

_William_, and that the name of the captain was Antonio Pelletier.

Pelletier was tried according to the laws of Hayti, convicted and

sentenced to death. The sentence was commuted to imprisonment for a

term of years. The facts of his arrest and of the sentence pronounced

upon him were published in the New York _Herald;_ and thereupon, as it

appeared in the investigation that was afterward made, his wife

married and, taking Pelletier's two children, left the country.

Pelletier was kept in prison for about two years, when he escaped,

probably with the connivance of the authorities. He returned to the

United States. Previous to his escape he gained the confidence of

the commissioner of the United States at Port au Prince, who made a

report in his behalf and upon the ground that he had been arrested,

tried and convicted for an offense of which he was not guilty.

That report was made to the Department of State, when Mr. Seward was

Secretary of State. Mr. Seward declined to act, upon two grounds--

first, it was not proved that Pelletier was a citizen of the United

States; and second, the course of Hayti seemed justified by the facts

as they then appeared. Pelletier presented a statement of his claim,

amounting in all to about $2,500,000. He placed the value of the bark

_William_ and her cargo, with some money which he claimed was on her,

at about $92,000. He claimed also that he had been subjected to many

losses in business transactions, which he had been unable to consummate

owing to his arrest in Hayti. These amounted to about $750,000. The

most extraordinary claim was the claim for damages to his person, in

the matter of his arrest and captivity, and the loss of his wife,

children and home, for all of which he charged $300,000.

The claimant pressed his claim persistently to the State Department;

and in the year 1884, when Mr. Frelinghuysen was Secretary of State,

a protocol was entered into between him and Mr. Preston, then minister

plenipotentiary of the republic of Hayti, by which this claim, with

another large claim in behalf of A. H. Lazare against the republic of

Hayti, was submitted to an international arbitrator,--the Hon. William

Strong, formerly a justice of the Supreme Court of the United States.

The republic of Hayti retained Charles A. de Chambrun and myself as

counsel for the defence. This hearing occupied one year of time, and

the documents and the testimony taken covered two thousand printed

pages. The investigation showed that Pelletier was born at

Fontainebleau in France in the year 1819. At the age of fourteen he

ran away from his home and country and came to the United States, where

he found employment on board a ship, which was owned and navigated

by one Blanchard of the State of Maine. From about the year 1835 to

the year 1850, Pelletier was employed upon shipboard in various menial

capacities, until finally he became master of several small vessels,

which were employed on short voyages in the Caribbean Sea and on the

coast of South America. About the year 1850 he appeared in the city

of New York, and between that time and 1859 he was in the city of

Chicago, where on one occasion and as the representative of some local

party he was a candidate for alderman. He was also engaged for a time

in the manufacture of boots and shoes at Troy, New York.

In the autumn of 1860 there appeared a statement in the newspapers that

a bark called the _William_ had been arrested and condemned at Key West

upon the charge of having been fitted out for the slave trade. Guided

by that notice, Pelletier went to Havana, and employed an agent to go

to Key West and to purchase the bark. The purchase was made at a cost

of $1,504. In Pelletier's statement of his claim, he asserted that he

paid something over $10,000 for the vessel. From Key West the vessel

was sent to Mobile in charge of a man named Thomas Collar, who became

Pelletier's mate, but who was known on the vessel as Samuel Gerdon. At

Mobile the _William_ was fitted out for the voyage under the direction

and apparent ownership of a firm in that city known as Delauney, Rice

& Co., of which Pelletier claimed to be a member and proprietor to the

extent of $50,000, the patrimony which he had received upon the death

of his father. The vessel was freighted with lumber, and was cleared

for Carthagena, New Granada, in October. She arrived at that port

late in November. The investigation showed that a portion of the lumber

was placed upon the deck when there was space below where it might have

been stored. It appeared also that the vessel contained a large number

of water casks, some twenty or twenty-five, about twenty pairs of

manacles, a quantity of ammunition, and that the number of sailors was

considerably in excess of the number required for the navigation of

the vessel.

At Carthagena Pelletier made a contract with a colored man named Cortes,

to carry him with his wife and children and servant to a point on the

coast east of Carthagena, known as Rio de Hache. This contract he

never performed. The original object of the voyage, as he alleged,

was to obtain a cargo of guano, at an island which he named Buida. As

a matter of fact, there is no such island, or at any rate none could

be found on the maps, nor was its existence known to the officers of

our Government who had been engaged in taking soundings in the Caribbean

Sea.

While the _William_ was at Carthagena, one of the men deserted and

notified the commander of a British man-of-war that the object of the

voyage of the bark _William_ was a cargo of negroes to be carried to

the United States and sold as slaves. Following the desertion of this

man, Pelletier left Carthagena and, instead of proceeding to Rio de

Hache, which was understood to be the destination of the British man-of-

war, he took a northerly course toward the island of Grand Inagua.

Upon this change of the course of the vessel, Cortes became alarmed for

his safety, and he urged Pelletier to put him ashore, and especially

for the reason that the shades of maternity were falling on his wife.

After a delay of ten days, Pelletier consented to land him, which he

did at Grand Inagua, and secured in payment the goods and effects which

Cortes had on board the vessel, and which were understood to be of the

value of $500 or more.

In the month of January, 1861, Pelletier arrived in the harbor of Port-

au-Prince, Hayti, where he was accused of being engaged in a slave-

trading expedition by five of his men whom he had landed and caused to

be put in prison on the charge of insubordination. The authorities were

so well convinced of the unlawful character of the expedition that they

ordered Pelletier to leave without delay. He was conveyed out of the

harbor by an armed vessel, and upon the understanding that he was to

sail for New Orleans. As a matter of fact, however, he employed the

months following, until April, in expeditions among the islands of the

Caribbean Sea. In the course of the investigation, Pelletier appeared

on the stand as a witness. In a series of questions which I put to

him, I asked for the names of the vessels which he had commanded,

previous to the voyage of the _William_. Among others he mentioned the

_Ardennes_, which was an American ship, registered. It turned out upon

further investigation that that ship was fitted out by him at

Jacksonville in the year 1859, and cleared for the Canary Islands. Her

cargo consisted of rum, sugar, cigars and tobacco. From the admission

of Pelletier it appeared that he never reached the Canary Islands, but

made the coast of Africa, near the mouth of the Congo River. Upon

being pressed for a reason for the change, he stated that he had been

driven there by a storm. We were able to cause an examination to be

made of the records of the _Pluto_, a British man-of-war, that

discovered the _Ardennes_ near Magna Grand in April, 1859. The officers

of the _Pluto_ boarded the _Ardennes_, and made such an examination as

they thought proper. The captain made this entry after an examination

of the vessel's papers and register, namely: "Which, though not

appearing to be correct, I did not detain or molest them." The

_Ardennes_ lingered in the vicinity of the mouth of the Congo, where she

was arrested by the officers of the United States ship _Marion_, under

command of Captain Brent. The results of the examination which he

made and the circumstances of which he obtained knowledge were such that

he took possession of the vessel and sent her to New York upon the

charge of being engaged in the slave trade. The evidence produced at

New York was not sufficient to lead the court to condemn her, but the

judge gave a certificate that there was probable cause for her arrest.

The real character of the voyage of the _William_ from Mobile was

finally established beyond all controversy. In the year 1880, a treaty

was made between the United States and France, by which an international

commission was created for the purpose of determining the validity of

claims made by citizens of the United States against France and of

claims made by citizens of France against the United States. Among

the claimants against the United States were two Frenchmen by the name

of Le More, residents of New Orleans. At the time of the capture of

New Orleans in the year 1862, these men had in their possession a large

sum of money belonging to the Confederate government. By the

proclamation of General Butler, made immediately upon the capture of

the city, all intercourse with the Confederate authorities by residents

of New Orleans was interdicted. Notwithstanding the proclamation, the

Le Mores contrived to convey the funds in their possession across the

line, and to procure their delivery to the Confederate authorities.

General Butler, having obtained knowledge of this transaction, had the

Le Mores brought before him. He then questioned them, and upon his

own judgment and without trial he sent them as prisoners to Ship

Island, where they were confined for a time with an attachment of a

ball and chain. Each of these men presented a claim to the commission,

and, there being no defence, an award of $20,000 was made to each. If

General Butler had convened a military court or commission, as he should

have done, and had obtained a conviction, as he would have obtained one,

he would not have subjected the United States to the judgments which

were rendered finally.

In that hearing, De Chambrun represented the Government of France and I

represented the Government of the United States. Thus having knowledge

of the Le Mores, who were yet in New Orleans, we applied to them for

the purpose of ascertaining the character of Delauney, Rice & Co., and

also whether there was any person living who had knowledge of the

fitting out of the bark _William_. They found a man by the name of

Louis Moses, who had been a resident of New Orleans since the year

1852, and who was well acquainted with the house of Delauney, Rice &

Co., having transacted business for it, and who was himself concerned

in the fitting out of the bark _William_. He had indeed invested, in

one form or another, the sum of $15,000 in the enterprise, of which he

had evidence in writing. He stated that the object of the voyage was

to obtain a cargo of negroes in some of the islands of the Caribbean

Sea, and to bring them to a desert island on the west bank of the

Mississippi, near the mainland of Louisiana; in fine, that there was

no purpose to obtain a cargo of guano.

When the hearing commenced, in the year 1884, Pelletier came before the

arbitrator in perfect health and with the appearance of a man of ability

and of fortune. After an acquaintance of about a year I was able to use

this language in my final arguments: "It is a singular circumstance

that Captain Pelletier has not produced an original paper or document

in support of his claim. He is sixty years of age or more. He is a

man not deficient in intellectual capacity, whatever else may be said

of him. He is endowed by nature with ability for large and honest

undertakings. He claims to have had an extensive business experience;

to have been the possessor of large wealth; to have been trusted in

fiduciary ways; and he comes here and claims compensation for a great

outrage, as he alleges, upon his person and his rights; and yet he has

not produced a paper that has the signature of any being, living or

dead, by which he can sustain the claim he makes. What is his answer

in regard to the absence of papers? It is that they were on board the

bark _William_. According to the best information we can obtain, that

bark was not less than twelve or fifteen years of age. We know that it

did not much exceed two hundred tons burden. It was bound on a voyage

into tempestuous seas; and, leaving behind him wealth, as he says, to

be measured by the million, he embarks on that vessel with all his

papers, including title deeds, articles of copartnership, powers of

attorney, and preliminary accounts relating to unsettled affairs. He

is a member of the house of Delauney, Rice & Co., in which he had

deposited his patrimony to the extent of fifty thousand dollars; and

he carries away on that frail bark all evidence of his investment in

that firm. He had, he said, a partnership agreement; he had accounts

of profits that had been rendered from time to time,--and all are gone.

He had a dear wife and two children, for whose loss he now demands large

compensation; and yet he carried away the evidence of which their right

to his estate would have depended, in case of his death. The statement

may be true, but in the nature of things it is not probable. That we

may believe a statement of that sort, evidence is required, not from

one man unknown, not from one man impeached, but from many men of

reputable standing in society. It is not to be believed that a man

who had been engaged in transactions measured by hundreds of thousands

of dollars, through a period of ten years, should take every evidence

of those transactions on board a vessel of hardly more than two

hundred tons burden, manned by a crew composed of highbinders, as he

has described them, and sail to foreign lands, over tempestuous seas,

upon the poor pretext of procuring guano for the plantations of

Louisiana,--and this, as he says, when war was imminent."

In my argument to the arbitrator I attempted to trace the voyage of the

_Ardennes_ and the voyage of the _William_ with as much minuteness as

seemed to me to be wise under the circumstances, and for the sole

purpose of establishing the charge that Pelletier was engaged in the

slave trade. The character of the voyage of the _Ardennes_ was

important in view of the rule of law that, in the trial of a person

charged with the crime of slave-trading, evidence is admissible which

tends to prove that the accused had been engaged in similar

undertakings at about the same time.

My argument occupied the business hours of two sessions of the court.

At the opening of the court Pelletier appeared, took a seat, and

remained during the first thirty or forty minutes of my argument,

when he disappeared. The New York _Herald_, on the morning of the

third day after Pelletier's last appearance, contained the announcement

that Antonio Pelletier had died suddenly at the Astor House in the city

of New York. The hearing proceeded, and on the 30th day of June, 1885,

Mr. Justice Strong filed his opinion in the Department of State. In

that opinion, he says:

"I can hardly escape from the conviction that the voyage of the bark

_William_ was an illegal voyage; that its paramount purpose was to

obtain a cargo of negroes, either by purchase or kidnaping, and bring

them into slavery in the State of Louisiana; and that the load of

lumber, and the profession of a purpose to go for a cargo of guano

were mere covers to conceal the true character of the enterprise." He

states also "that Pelletier had applied to a Haytian to obtain fifty

men and some women, blacks, of course, to assist him in obtaining

guano." The arbitrator found, however, that by the law of nations the

courts of Hayti had no jurisdiction of the case. "It is undeniable,"

said Justice Strong, "that none of them were piratical in view of the

law of nations."

By the _act d'accusation_ Pelletier was charged with piracy and slave-

trading on the coast of Hayti. The arbitrator found that he was not

guilty of piracy and that the act of slave-trading was never committed,

although the design and purpose of the voyage were perfectly clear.

The claims as presented were all rejected by the arbitrator, except the

claim for injury to Pelletier personally by his confinement in prison.

For that injury the arbitrator allowed Pelletier the sum of $25 a day

during his confinement, and the interest thereon up to the time the

judgment was rendered, amounting in all to $57,250.

When the judgment had been rendered, the counsel for Hayti presented

a memorial to the State Department, setting forth the impropriety and

bad policy of a presentation by the Government of the United States of

a judgment rendered in favor of a claimant who had been found guilty of

fitting out a slave-trading expedition within the limits of the United

States, and using the flag of the United States as a protection in the

prosecution of his illegal undertaking. Mr. Bayard was then Secretary

of State, and Mr. Cleveland was President. That view of the counsel

of Hayti was accepted by the Secretary of State and by the President,

and the government of Hayti was relieved from the payment of the claim.

I ought to add that Mr. Justice Strong concurred with the counsel for

Hayti, and made a representation to the Department of State urging

the remission of the penalty in the judgment he had rendered.

The decision of Mr. Justice Strong raises a question of very serious

character--that is to say, whether an international tribunal can take

notice of proceedings in the judicial tribunals of a foreign state,

further than to ascertain whether the proceedings were according to

"due process of law" in the state where the proceedings were had.

Justice Strong went so far as to hold that the courts of Hayti had erred

upon the question of their own jurisdiction. Such a ruling, if applied

to cases of public importance, might lead to very serious results.

[* Printed in the _New England Magazine_. Copyright, 1900, by Warren

F. Kellogg.]

XLIII

MR. LINCOLN AS AN HISTORICAL PERSONAGE.

Reminiscences of Sixty Years in Public Affairs, Vol. 2 · 第 47 / 54 题