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 embarcacoes 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 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. JAMES E. HARVEY. 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. No. 2.] Mr. Seward to Mr. Harvey. DEPARTMENT OF STATE, Washington, July 30, 1861. SIR: Your despatches No. 1, of June 30, and No. 2, of July 7, have been received, and are under the consideration of the President. Mr. Morgan's despatch No. 70, of the date of July 5, has been received. I am instructed by the President to say that Mr. Morgan's proceeding in addressing the Portuguese government on the subject of allowing the fitting out or harboring of privateers to prey upon the commerce of the United States is approved, as well as the general tenor of his communication on that occasion. The President cannot for a moment allow the belief that Portugal would be the only or even the first power to permit proceedings so injurious to the United States as a license or shelter granted to pirates engaged in preying on their commerce would be. Nevertheless, we shall look not without some solicitude for the result of the matter thus initiated by Mr. Morgan. Please assure him, if he is yet remaining in Lisbon, of the entire satisfaction with which his conduct in the mission, so far as it has been reported to me, is regarded by the government. I am, sir, your obedient servant, JAMES E. HARVEY, Esq., &c., &c., &c., Lisbon. WILLIAM H. SEWARD. Mr. Seward to Mr. Harvey. No. 5.] DEPARTMENT OF STATE, Washington, August 17, 1861. SIR: Your despatch No. 7, dated July 28, has been received. It is accompanied by a copy of a note which you on the 27th of July addressed to M. d'Avila, minister for foreign affairs in the government of Portugal, on the subject of privateering by or in the service of the insurgents of the United States. Your proceeding in this respect seems to have been eminently judicious, and the note itself, I think, very well and properly expressed. It is hoped that you will before this time have received such a satisfactory reply as our good relations and treaties with the government of Portugal authorize us to expect. WILLIAM H. SEWARD. I am, sir, respectfully, your obedient servant, JAMES E. HARVEY, Esq., &c., &c., &c., Lisbon. No. 7.] Mr. Seward to Mr. Harvey. DEPARTMENT OF STATE, Washington, August 21, 1861. SIR: Your despatch No. 4, under the date of July 20, has been received. Your address to his Majesty was appropriate, and even happy. His reply is very gratifying to this government. We trust that you may find it easy to keep the relations between the two countries on a basis of mutual and cordial friendship. I am, sir, respectfully, your obedient servant, JAMES E. HARVEY, Esq., &c., &c., &c., Lisbon. WILLIAM H. SEWARD. No. 8.] Mr. Seward to Mr. Harvey. DEPARTMENT Of State, SIR: Your despatch No. 8, dated July 30, has been received, and I have the pleasure of informing you that the President entirely approves of your diligent and judicious action concerning the proposed proclamation of the government of Portugal. We look with much confidence for good results from it. SIR: I have the honor to enclose herewith the copy of a note from the foreign office, covering the copy of a proclamation in regard to privateers and their prizes, (Nos. 1 and 2,) in the form finally adopted by the council of state. This decree was published in the official paper (Diario de Lisboa) on the 23d instant, a copy of which has already been transmitted to the department. By referring to my despatch No. 8, it will be seen that the preamble of the proclamation has been modified, so as to escape the logical inconsistencies which I then pointed out, in the hope of inducing the omission of certain phrases, which would have rendered it more acceptable. I have the best reason to know that the council of ministers, or cabinet, were not only well disposed to adopt my proposed amendment, but that they submitted the proclamation with the revision. When this fact became known to me, I urged, with every influence and persuasion at my command, an immediate decision, so as to insure the promulgation before any interrupting cause or accident could intervene. But the King went away for a short time, and a council of state, to which the proposed action of the council of ministers on important questions is pre· sented for examination, could not be convened. In the meantime intelligence from the United States of an eventful character affected opinion here, and gave increased weight to the objections which had been urged by the British minister and others against the form of proclamation which I had requested. A council of state was summoned upon the return of the King, and the result of their deliberations is to be found in the documents enclosed in this despatch. While I should have been greatly gratified had my amendment been accepted, I have the satisfaction to know that it did not fail from any want of zeal, energy, or effort on my part, and that the proclamation as it now stands is mainly predicated upon your policy, in execution of the principle of the treaty of Paris, and is not open to the objections urged against those issued by England, France, or Spain. I have the honor to be, sir, very respectfully, Hon. W. H. SEWARD, JAMES E. HARVEY. Secretary of State. No. 1.] Mr. d'Avila to Mr. Harvey. [Translation.] DEPARTMENT OF STATE FOR FOREIGN AFFAIRS, August 22, 1861. The councillor of state, Antonio José d'Avila, presents his most attentive compliments to Mr. James E. Harvey, and has the honor to remit him the enclosed copy of the decree of the 29th of July last, published according to the last form given thereto, after hearing the council of state. [Translation.] No. 2.] MINISTRY OF FOREIGN AFFAIRS. It being proper, in view of the circumstances at present existing in regard to the United States of America, to carry into effect the principles established in the declaration of Paris of April 16, 1856, made by the representatives of the powers that signed the treaty of peace of the 30th of March of that year, to which declaration my government acceded, and likewise, for the same reason, to adopt other measures which I deem opportune, I have been pleased, after hearing the council of state, to decree as follows: ARTICLE 1. In all the ports and waters of this kingdom, as well on the continent and in the adjacent islands as in the ultramarine provinces, Portuguese subjects and foreigners are prohibited from fitting out vessels destined for privateering. ARTICLE 2. In the same ports and waters referred to in the preceding article is, in like manner, prohibited the entrance of privateers and of the prizes made by privateers, or by armed vessels. The cases of overruling necessity, (força maior,) in which, according to the law of nations, hospitality is indispensable, are excepted from this regulation, without permission, however, being allowed, in any manner, for the sale of any objects proceeding from prizes. The ministers and secretaries of state in all the departments will thus understand, and cause it to be executed. PALACE OF NECESSIDADES, July 29, 1861. MARQUEZ DE LOULÉ. ALBERTO ANTONIO DE MORAES CARVALHO. VISCONDE DE Sá da Bandeira. CARLOS BENTO DA SILVA. THIAGO AUGUSTO VELLOSO DE HORTA. ANTONIO JOSÉ D'AVILA. KING. |