Mr. Harvey to Mr. Seward .

No. 8.]

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,

JAMES E. HARVEY.

Hon. W. H. Seward,
Secretary of State, Washington City.

[Page 409]

No. 1.

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.

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.