Brashear v. Mason

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington.

It was an application to the Circuit Court for a mandamus, under circumstances which are thus stated by that court in its opinion.

William C. Brashear petitioned the court for a rule on John Y. Mason, Secretary of the Navy of the United States, to show cause why a mandamus should not issue, commanding him, as Secretary of the Department of the Navy, to cause payment to the petitioner of his just dues as an officer in the navy for the time past since the annexation of Texas to the United States.

The petitioner states, that, in pursuance of the constitution and laws of the republic of Texas, he was, on the 23d of June, 1845, by the then president of the said republic, commissioned as a commander in the navy of the republic, and forthwith entered into service under orders from the department of was in Texas, and continued in that service from the 23d of September, 1844, thenceforth, and was so in service when the joint resolution of the Congress of the United States passed for annexing Texas to the United States was approved, and when the said State of Texas was admitted into the Union and Confederacy of the United States of America, and was actually in service and a commander in the navy of Texas when the ship Austin, brigs Wharton and Archer, and schooner San Bernard, armed vessels of war of and belonging to the Texan navy, were delivered over to the United States, under the terms and articles of compact and agreement between the United States of America and the republic of Texas; and as such he is advised that he is in good faith, and in accordance with the said articles of agreement, compact, and treaty of annexation, an officer in the navy, and entitled to his pay and emoluments from the United States.

The petitioner further states, that he never has resigned his commission, nor been cashiered, nor dismissed; that he has regularly reported himself for duty under the said commission to the Secretary of the Navy of the United States, and has demanded his pay as an officer, but the Secretary of the Navy of the United States has hitherto refused, and yet refuses, to pay him, or to recognize him as an officer of the navy. He states further, that he is informed and advised by counsel learned in the law, that for his pay and emoluments as an officer of the navy of Texas, transferred to the United States by the terms of the annexation aforesaid, he is entitled to have and receive, up to the 1st of October, 1847, the sum of $2,100; whereof he has received from the treasury of the United States no more than the sum of $689.20, which was paid him by order of the Secretary of the Navy of the 19th of March, 1847. And he is also advised, that he is entitled to his continuing pay and rank as an officer in the navy of the United States, by virtue of the said agreement, compact, treaty, and transfer before mentioned.

Notwithstanding all which, the Secretary of the Navy of the United States refuses to order payment to him for the time past since the said annexation and transfer, or to recognize him as an officer in the navy of the United States.

That part of the second section of the joint resolution of the 1st March, 1845, for annexing Texas to the United States, which is applicable to this case, is in the following words:--

'Said State, when admitted into the Union, after ceding to the United States all public edifices, fortifications, barracks, ports and harbours, navy and navy-yards, docks, magazines, arms, armaments, and all other property and means pertaining to the public defence, belonging to said republic of Texas, shall retain all the public funds, debts, taxes, and dues of every kind, which may belong to, or may be due and owing, said republic; and shall also retain all the vacant and unappropriated lands lying within its limits, to be applied to the payment of the debts and liabilities of the said republic of Texas; and the residue of said lands, after discharging the said debts and liabilities, to be disposed of as the said State may direct; but in no event are said debts and liabilities to become a charge upon the government of the United States.'

The Circuit Court overruled the motion for a mandamus, and rejected the prayer of the petition, to which judgment Brashear excepted, and upon this exception the case came up to this court.

It was argued by Mr. Bibb and Mr. Jones, for the plaintiff in error, and by Mr. Clifford (Attorney-General), for the Secretary of the Navy.

A portion of the argument on behalf of the plaintiff in error was as follows.

Whether the applicant has a right to the money which he demands by his petition and motion depends upon the proper meaning and effect of that part of the convention for annexation and union which relates to the cession by Texas of her 'navy,' and the acceptance thereof by the United States.

The proposition flowed from the United States to Texas. Texas accepted, and made the cession and delivery, in compliance with her sense of the proposition; and the United States accepted.

The first question is, What is the sense in which this condition was presented by the United States, and the sense in which Texas accepted?

This may be solved by considering, first, the meaning of the word 'navy,' as established by general use; second, by the circumstances of the parties proposing and accepting; third, by the conduct of the parties in acting under the convention immediately after it was ratified.

1. As to the meaning established by use, 'navy' is a mixed mode of speech, a complex idea, including the insensible, inert matter whereof the vessels of war are composed; also the armaments and equipments; and also the active, living bodies and minds necessary to give mobility, direction, utility, and efficiency to the vis inertioe of the vessels and armaments.

Inanimate matter cannot think, plan, protect, drive off, pursue, blockade, and give safe convoy. Officers and sailors are indispensably necessary to make a navy.

The idea of a navy composed solely of vessels and guns, without officers and seamen, is as absurd as the idea of an army composed solely of muskets, swords, pistols, and big guns, without officers and soldiers to wield them.

The law of the United States entitled 'An act for the better government of the navy of the United States' (2 Statutes at Large, 45), contains forty-two articles to rule and govern the officers and privates in the navy of the United States, which is an authoritative a definition, not to be gainsaid, that officers and privates are component parts of a navy. The law of the navy is to govern the officers and the privates who compose the navy, not to govern ships and guns, that cannot offend nor commit crimes, nor be the subjects of accusation before naval courts-martial.

2. As to the circumstances of the parties proposing the cession and making the cession of the navy and navy-yards, docks, ports, and harbours, the United States, by their Constitution, had power 'to provide and maintain a navy'; their situation, interests, and duties imperiously demanded the execution of that power. The State of Texas, if admitted into the Union, could no longer keep ships of war in time of peace without the consent of Congress; and yet a navy would be essential to guard and protect the coasts and harbours of Texas after the union, as it had been before the proposed conditions and guarantees for the union. The people and government of Texas could not, did not, understand the proposal to cede the navy to the United States as intended to destroy it, any more than that the proposal to cede the ports and harbours was intended by the United States for the purpose of obstructing or rendering them useless. The natural sense in which they were presented, understood, and accepted was, that the navy, ports, and harbours were to be maintained, preserved, and used for their several and appropriate purposes.

But the circumstances under which the people and government of Texas were, in relation to their navy, so well known to public history and to fame, forbid the idea that the United States intended the proposal, or that Texas would have acceded to it, as containing a violation of the obligations due to the officers of the navy, who had so repeatedly, so gallantly, so gloriously, and so usefully fought the enemies of Texas, beat off the foes who came to invade, pursued them into their own ports and harbours, there blockaded them, and levied contributions to assist the means of Texas in their war of independence. The many naval battles between the vessels of war of Texas and those of Mexico, in the year 1836, and after, in which the navy of Texas fought against the very superior force of the Mexicans, always sustaining the honor of the flag, and adding new brilliancy to the lone star, were just foundations of national pride, as well as of national gratitude towards the navy. The belief, that, by the proposal for ceding the navy of Texas to the United States, the officers would have been deprived of their commissions and pay in the navy so transferred, turned adrift to seek a precarious subsistence in some other calling, for which their long and gallant services in the navy of Texas had unfitted them, would of itself have been cause for rejecting the proposal on the part of Texas. Such fell ingratitude would have tarnished the escutcheon of Texas. The words of the proposal, the circumstances of the parties to the convention, the end proposed, left no ground for suspicion, that such an act of injustice and ingratitude to the officers of the navy was concealed in the proposal made by the United States.