Mr. Harvey to Mr.
Seward.
No. 8.]
Legation of the United
States,
Lisbon,
July 30, 1861.
Sir: I received a note from Mr. d’Avila, the
minister of foreign affairs, yesterday, requesting an interview with me
at 4 o’clock. I called at the foreign office at the appointed hour, and
he immediately presented the original draft, in Portuguese, of a
proposed proclamation, of which I enclose a translated copy, marked No.
2. After hearing it read and reduced into English, I expressed my
acceptance of its general scope and spirit, but expressly demurred to
the declaration at the end of article 2, by which armed vessels are
placed in the same category as privateers in regard to prizes. Although
I knew it was of no practical importance to the United States under
present circumstances, it was easy to foresee that in the event of war
with England or France, and with their ability to blockade our ports,
that prizes taken by American ships-of-war would be thus excluded from
Portugal and her possessions. Hence my objection to that point. I told
Mr. d’Avila that it went beyond the treaty of Paris, upon which the
proclamation was professedly predicated, and that it did what I had
sought to avoid by introducing indirectly our domestic question. He said
his object was to exclude the prizes of vessels-of-war of the so-called
Confederate States, in case they should create a navy, and thus to guard
against any future complication. To this suggestion I answered that, as
we were not dealing with supposititious or hypothetical cases, it was
necessary to adhere to the practical question, and, as we had stated, on
the basis of the declaration of Paris in regard to privateering and his
own preamble set out with that statement, the introduction of any
extraneous matter would be not only irrelevant, but likely to defeat the
object which both sides alike professed to have in view. He did not
respond to this suggestion, but agreed to let me take the rough draft,
in order that I might submit whatever observations might occur to me as
appropriate.
I prepared the accompanying note (marked No. 1) this morning, and sent it
to Mr. d’Avila an hour ago.
There are two councils before which such questions are considered; first,
the council of ministers or the cabinet; and second, the council of
state, which is a larger body, and includes the cabinet and other
distinguished persons. I understood Mr. d’Avila to say that the draft of
the proclamation had been laid before the former, and approved by them,
and that my proposed amendment must, therefore, be presented at another
meeting. I have reason to believe that my note of Saturday precipitated
this action, which, in a country where diplomacy is proverbially slow,
exhibits unusual promptitude.
I am, sir, very respectfully, your obedient servant,
Hon. W. H. Seward,
Secretary of State, Washington City.
[Page 409]
No. 1.
Legation of
the United States,
July 30,
1861.
The undersigned presents his most respectful compliments to his
excellency M. d’Avila and referring to the conversation he had the
honor to have with his excellency yesterday, and repeating his
thanks for his excellency’s courtesy in showing him the draft of the
proclamation contemplated by the government of his most faithful
Majesty, as a proper consequence and application of the principles
adopted by Portugal by her adhesion to the declaration of Paris of
April, 1856, he begs leave to submit the following observations to
his excellency’s enlightened consideration:
The declaration of Paris abolished privateering. It would seem to
follow as a necessary logical consequence to all powers acceding to
the same, that under no circumstances (except those of force, majeure, and brief, indispensable
hospitality, in view of the laws of humanity) ought their ports to
be open to the admission of privateers or their prizes. So far,
then, as regards privateers and their prizes, the undersigned sees
nothing but what he must approve in the draft of the proclamation
referred to.
But the declaration of Paris did not go further, and change the
established maritime law of the world in regard to the legality of
the capture of prizes by the regular men-of-war of the naval forces
whose fleets roam the ocean. Such prizes have always been deemed
legitimate, and still remain so. It is no application of the
principles of the declaration of Paris to exclude such regular and
lawful prizes, made by the regular vessels of one nation, from the
ports of a friendly nation. In this respect the words, “on por embareacoes annadas,” at the end of
article 2, appear not only to go much beyond the principles of the
declaration referred to, but even to be most unnecessarily
introduced into a proclamation avowedly designed for the mere”
execution and practical application of the principles of that
declaration. To introduce them at this moment in such a proclamation
would be deemed by the government of the United States not only as a
gratuitous deviation from the terms of the preamble to the same
proclamation, but as a deviation prompted by a reason which would
seem to involve an indirect, if not a direct, reference to the
present rebellion of a small portion of the United States. It would
be understood as placing on the same level the regular men-of-war of
the United States and the privateers of the States now in rebellion,
so far as regards the prizes made by them. It is only with reference
to the principle involved, to the apparent inconsistency between the
preamble and the sequence, and to the misconstruction to which it
would be consequently liable, that the undersigned indulges the hope
and expectation that the few words above cited may be omitted from
the proposed proclamation, and takes occasion to say that in that
form it will be perfectly acceptable to the government of the United
States, and will add another to the many links of friendly relation
and intercourse which already bind closely together the two
countries.
It is only proper for the undersigned to notify his excellency M.
d’Avila that information has been communicated to the government of
the United States which authorizes the belief that some of the
remote islands and colonies of this kingdom are proposed to be used
by designing and reckless persons to engage in the nefarious
enterprises referred to by the equipment of privateers, or the sale
of prizes, if any should be taken. He knows perfectly well, in
advance of any assurance, that such lawless undertakings would be
sternly deprecated by the government of his most faithful Majesty;
but his excellency cannot fail to discover in this fact an urgent
[Page 410]
reason why a
proclamation of such sentiments, and in the unobjectionable form
suggested, should be immediately made. It is with this view, and to
provide against the contingency of future, and perhaps of impending,
difficulty, that the undersigned has brought the subject thus
promptly to the notice of his excellency, and with the most friendly
spirit and purpose.
The undersigned begs leave to return the rough draft of the
proclamation, and to repeat his assurances of respect and
distinguished consideration.
No. 2.
[Translation of proposed
proclamation.]
It being convenient, under existing circumstances, to carry out the
execution of the principles contained in the declaration of Paris of
16th April, 1856, made by the representatives of the signing parties
to the treaty of peace of 30th March of the same year, to which my
government hath adhered, I am pleased hereby, having heard the
council of ministers, to decree the following:
Article 1.
It is prohibited to Portuguese subjects and foreigners to equip in
the ports and waters of this kingdom, not only on the continent and
adjacent islands, but also in the ultramarine provinces, vessels
destined for privateering.
Article 2.
In the same points cited in the preceding article it is equally
prohibited the entry of privateers and prizes made by them or by armed vessels.
§°. All cases of force, (majeure,) wherein,
according to the rights of nations, hospitality becomes
indispensable, are excepted from this clause without, however,
allowing, under any form, that the sale of objects arising from
prizes shall take place.
Let the ministers and secretaries of state of all the departments
understand these presents, and cause the same to be executed.
Palace of
Necessidados, July 29,
1861.
