USS Constitution enters dry dock at Charlestown Navy Yard, Boston MA for overhaul. The Ship was saved from scrapping after public support rallied to save the ship following publication of Oliver Wendall Homes poem, “Old Ironsides.”
Below is an article about the restoration from Proceedings June, 1941 and Homes poem.
“OLD IRONSIDES” IN CHANCERY
By WILLIAM H. DAVIS
WHEN the U.S.S. Constitution sailed from the League Island Navy Yard at Philadelphia on February 28, 1878, no one aboard realized how eventful the cruise was to be. To be sure, they understood that the voyage was something special and out of the ordinary, but no one could have foreseen that this was to be the unlucky voyage of a notoriously lucky vessel. The occasion for the trip was the World’s Fair of that year held in Paris, at which the United States maintained a building. Congress by Joint Resolution of December 15, 1877,t had authorized the Navy Department to send a warship to France for the purpose of carrying the material and equipment to be displayed in that building. Secretary of the Navy Richard Thompson decided that the proper ship to carry out that worthy purpose was “Old Ironsides.” After an uneventful voyage of several weeks, the Constitution made a landfall at Falmouth, England, on March 31 and three days later entered the harbor of Le Havre, France, her destination. It was here that she had her first adventure, for on her way into anchorage she ran afoul of the French man-of-war Ville de Paris causing slight damage to both vessels. The Constitution discharged her cargo and had the necessary repairs made. She visited a number of the ports of Europe during the rest of the year. On her return to Havre in December at the close of the Exposition, she took aboard fresh supplies and re-embarked the exhibits from the Paris Exposition and on January 16, 1879, cleared for England.
Early the next morning, about 2: 15 A.M., she went hard aground at Ballards Point, near Swanage, on the south coast of England. When dawn came, communication was established with the shore whereby telegrams were dispatched to both Portland and Portsmouth for help. The prospect of salvage soon brought a number of near-by tugs and lighters. These went to work with such speed and efficiency that by 3:30 P.M. of the same day, January 17, 1879, the Constitution had been pulled off the sand bar. She was then towed to Portsmouth.
Action followed swiftly after this. Among the tugs which had helped float the Constitution was the Admiral. The owners of this ship made demand upon Captain Oscar C. Badger of the Constitution for £1500 as salvage services. Captain Badger countered with an offer of £200. This the owners of the Admiral said was unacceptable and declared that they would institute court proceedings at once. This they did by filing notice of motion for a writ of arrest of the Constitution and Cargo, in the Court of Chancery, Division of Probate and Admiralty. A copy of this notice (literally a summons) was delivered to the American Legation in London, and also to the British Foreign Office.
The American Minister, John Welsh, immediately wrote the following letter.
LEGATION OF THE UNITED STATES, LONDON
January 28, 1879
To Messrs. Cooper & Co., solicitors
The accompanying notice marked “A” having been left at the Legation after the office was closed last evening, I shall be obliged to you to instruct counsel to be present in Court tomorrow morning to inform the Right Hon. the Judge of the Admiralty Court that the ship against which the warrant has been applied for by the owners, masters, and crew of the steam tug Admiral, is the United States national ship of war Constitution, regularly commissioned by the Government of the United States, and that the Constitution, at the time of the alleged salvage services, was engaged in the national service of the United States for public service, and in pursuance of a special Act of Congress passed in that behalf. You will please also instruct counsel to inform the Judge that the so called cargo consists of property of which the United States Government has, for public purposes, charged itself with the care and protection. Under these circumstances I, as the representative of the Government of the United States, cannot recognize that the High Court of Justice has any jurisdiction whatever in this case.
I am &c.,
Counsel will be good enough to inform the learned Judge that application would have been made to the Marquis of Salisbury, Secretary for Foreign Affairs, had time permitted.
The case was heard the next day, January 29,1879, before Sir Robert Phillimore. Counsel for both the American Minister and the British Foreign Office argued against jurisdiction of the case. Because of the expediency urged upon the court by these, the judge made known his verdict the same day. Sir Robert Phillimore in denying the motion offered the following opinion:
” … The question, therefore, which is raised under these proceedings is whether I have any jurisdiction to permit the arrest of a foreign ship of war belonging to an independent state in amity with our Sovereign, and I think it hardly can be denied that if I were to exercise the jurisdiction which is craved in the present case, I should be doing that for which there exists no direct precedent.
“On the contrary I have no doubt as to this general proposition-that ships of war belonging to another nation with whom we are at peace are exempt from the civil jurisdiction of the Courts of this country;and I have listened in vain for any particular circumstances which would take this case out of that general proposition. It has happened to me more than once to have been requested by foreign states to sit as arbitrator, and to make awards in differences which had arisen between them and British subjects.
“Had such an application been made in the present instance I would have gladly undertaken the duty sought to be imposed upon me; but that is not the state of affairs I have now to consider. All that I have now to determine is the simple question of jurisdiction. Various cases have been cited before me in argument, all of which, with one exception, were discussed in the case of the Charkieh,2 but that was wholly a different case because the Khedive of Egypt was not an independent sovereign, and the Charkieh herself formed one of a fleet of merchantmen. I may in the lengthy judgment which I delivered in that case have let drop some expressions which may have given rise to an impression that a foreign ship of war is liable to arrest, but in that case this question, as it is here raised, had not to be decided. Now that it comes before me in this plain and simple form, I feel no doubt that it would be improper for me to accede to the request of the owner of the steam tug, nor do I think, as I have said above, that the Constitution is liable to the process of this court.
“In regard to the question of the liability of the cargo, I must say that I see no distinction between the issue of a warrant in the case of the ship and in the case of this cargo; it is on board a foreign vessel of war, and is under the charge of a foreign government for public purposes. So that having no authority to issue either of the warrants prayed for, and as no precedent exists for such a course, I must dismiss this motion with cost.”
The day after this decision was handed down, the Constitution sailed for home by way of Lisbon and finally reached New York on May 24 and Philadelphia ten days later. America probably never came any closer to losing its most famous ship than it did on this voyage. The opinion of Judge Phillimore seems to infer that he was most reluctant to decide the case the way he did; that he wished the United States had agreed to jurisdiction so that he could have put his experienced mind to work on the actual value of the salvage. Who knows what value the Constitution had? As a naval relic, she would have had the same value in Judge Phillimore’s mind as the English Victory. If jurisdiction had been taken, a salvage value might have been set at such a high amount that Congress might never have authorized its payment. We cannot forget that it was about this time that Congress thought so little of the Constitution they were willing to see her scrapped. It was public subscriptions and enthusiasm alone that saved her after Oliver Wendell Holmes wrote his famous poem. Thanks to one of the few principles of international law rigidly observed, we were enabled to keep “Old Ironsides” intact until today.
By Oliver Wendell Holmes
September 16, 1830
Ay, tear her tattered ensign down!
Long has it waved on high,
And many an eye has danced to see
That banner in the sky;
Beneath it rung the battle shout,
And burst the cannon’s roar;
The meteor of the ocean air
Shall sweep the clouds no more.
Her deck, once red with heroes’ blood,
Where knelt the vanquished foe,
When winds were hurrying o’er the flood,
And waves were white below,
No more shall feel the victor’s tread,
Or know the conquered knee;
The harpies of the shore shall pluck
The eagle of the sea!
Oh, better that her shattered bulk
Should sink beneath the wave;
Her thunders shook the mighty deep,
And there should be her grave;
Nail to the mast her holy flag,
Set every threadbare sail,
And give her to the god of storms,
The lightning and the gale!