On certain matters independent of the merits I have with others been called to speak. One of these was the manner of the arrest and the bail required. At the time of the arrest, all the books and papers of the parties were seized and sequestered. The hardship of the arrest was aggravated by the bail required, which was fixed at half a million of dollars. “Excessive bail” is forbidden by the Constitution; but it would be difficult to say what bail could be “excessive,” if this was not.
The other matter on which I was called to speak was the order for the trial of the Messrs. Smith Brothers by court-martial at Philadelphia, when it was notorious that the proceedings must be protracted, and that numerous witnesses must be summoned from Boston, at great expense: the whole constituting a plain oppression, not unlike the demand of “excessive bail.”
The hardship in these preliminary proceedings seemed to justify an appeal to the President, in which I joined, for his intervention at least to change the place of trial. Perhaps they illustrate also the temper which entered into this prosecution.
It is only since the President has put into my hands the report on the findings of the Court, adopted by the Secretary of the Navy, that I have looked into the case on its merits. I have read that report carefully, and also the arguments of the counsel on both sides; but I have not had any opportunity to examine the whole record. From the fulness of the report, and of the arguments, this was hardly necessary. The record is extensively cited in the report and the arguments, and also in a pamphlet by one of the respondents, which I have read.
The more I have examined the case, the more I have been surprised by the preliminary proceedings, the continued prosecution, and the findings of the Court. I can well understand how they were used in the House of Representatives as an argument for the total repeal of the Act of Congress authorizing the trial of civilians by courts-martial. Such a case must make us fear, that, under this Act, justice may be sacrificed. It might make honest merchants hesitate to enter into business relations with the Government.
On careful examination, it seems that the whole prosecution, so far as proof is seriously pretended, is reduced to one single specification,—to wit, the sale and delivery of five thousand pounds of a tin called Revely, instead of a tin called Banca, by which, at most, the Government lost one hundred dollars. There are other specifications; but the report adopted by the Secretary of the Navy forbears to dwell on them; and I do not think they can be made the foundation of any judgment against the respondents. They did not seem to have impressed the President, in the conversation which I had with him on the subject. I put them aside as unproved or irrelevant. There only remains the single specification with regard to tin.
Look at this carefully, and the wonder increases that these proceedings were ever instituted.
1. The first remark to make is, that, even according to the finding of the Court, the Government has suffered only to the amount of one hundred dollars,—being the difference in price between the two kinds of tin at the date of delivery. The pettiness of this loss is still more apparent, when it is considered that the transactions of the respondents with the Government reached the sum of more than twelve hundred thousand dollars, having such infinite details that they covered twelve hundred and five pages of sales. Surely, on every principle of reason or evidence, the insignificance of this loss, in transactions on so large a scale, and extending over three years of time, constitutes an unanswerable presumption in favor of the respondents, excluding, as it does, any adequate motive for the perpetration of fraud. Even assuming that the supply of tin was questionable, it would be reasonable to call it ill-considered, hasty, or mistaken, rather than criminal, according to the finding of the Court. Certainly it could be no justification of the vindictive arrest and bail with which the proceedings began, and it is frightful that it should be made the pretence for a sentence of two year’ imprisonment and twenty thousand dollar’ fine. If a mountain in labor ever brought forth a mouse, it is this mountainous prosecution, whose only offspring yet crawling on earth is an allegation of loss to the United States of one hundred dollars! But, if we look further at this transaction, it will be seen that it is absolutely unimpeachable.
2. Much confusion has been caused by ignorance with regard to the two tins in question. The report adopted by the Secretary of the Navy says of them, that, “in the course of commerce, the two are never confounded by dealers”; then, again, that “Banca tin is one article, having a certain price, and that Revely tin is another and a different article, having a different price.” The repetition of this assumption again and again shows how important it was regarded in support of the accusation. But this assumption is founded on mistake.
I call attention to the letter of Hon. S. Hooper, addressed to myself, under date of 14th March instant, in which he testifies from his experience as an importer, for many years, of these two tins. He says: “If the only charge against Messrs. Smith Brothers & Co. is the delivery of Revely tin, on a contract to supply the Government with Banca tin, it is an absurdity, and it is evident to me that the Court did not know what Banca tin was.” He then proceeds to say, that the tin of the East passes under the general name of Banca tin, which is applicable to the Revely or Straits tin as well as to the Dutch; and he adduces the authority of the Commercial Dictionaries. Thus, McCulloch, under the word “Tin,” after speaking of the tin of Great Britain, says, “Tin, Oriental, in commercial language usually called Banca tin,” produced, according to this authority, in China, the Malay countries, and the islands lying toward Java. He also cites Simmonds’s “Dictionary of Trade,” published in London as late as 1858, which, under the term “Banca-Tin,” says, “A valuable kind of tin, equal to English refined, obtained in the Eastern Archipelago, originally from the island of Banca exclusively; but much is now procured in Malacca, and sent to Singapore for shipment.” The latter, it will be borne in mind, is what has been treated in this case as Revely.