James E. Harvey to the Duke de Loulé, April 6, 1865

Mr. Harvey to the Duke de Loulé

Sir: I have the honor to acknowledge the receipt of your note of the 31st March, and to say that the explanations and reparation made for an act of unjustifiable violence towards the United States steamer Niagara are accepted, though it would have been more agreeable to my government if they had come spontaneously and without the necessity of an official representation, since the facts were notorious to the whole public, and their serious character demanded a prompt and thorough investigation by his Majesty’s government. The privilege is reserved for another occasion of demonstrating, as can be done without the least difficulty, that the views advanced by his Majesty’s government, in regard to the international rights involved in this question, are in conflict with all the accepted principles of public law as applied to the status of Portugal.

And it is my duty to add, that when your excellency assumes that, “in consequence of the first movements of the Niagara, it became the duty of the governor of Belem Tower to order the firing so long as the ship did not indicate that her movements had not for their object the quitting of the port of Lisbon,” a grave responsibility is accepted, and a doctrine is asserted, which, with less moderation and prudence than were manifested on that particular occasion by Commodore Craven, might have provoked a very different state of facts from that which now happily exists; for, had it been understood that his Majesty’s government considered the governor of Belem in “duty” bound to fire shotted guns at a ship-of-war of the United States without warning, precaution, or injury of any kind, it is quite Sure that those shots would not have been accepted as evidence of the friendly assurances which have been protested so strongly. On the high seas when a ship-of-war desires to examine a suspicious vessel a blank cartridge is fired as the first notification of the intended purpose. If that notice be disregarded, then at least one and sometimes two shotted guns are discharged across the bows, and, as a last alternative, a shot may be fired at the hull. The practice of all civilized nations has sanctified this usage as law. If this be the rule for the sea, how much more ought it to be the rule inside harbors, and especially towards the ships-of-war of friendly nations, having rights to claim and responsibility to protect them against unworthy suspicion?

As a mere matter of practice the firing of shotted guns is forbidden as a mode of warning even when there is good reason to suppose a meditated wrong; and, in the case of the Niagara, taking in view the position which Portugal and the United States occupy towards each other under the law of nations, that firing would be an act of deliberate and flagrant war according to the doctrine described as a “duty” by his Majesty’s government in the paragraph already cited from your excellency’s note.

The complete power of his Majesty’s government to regulate the police of the ports of the kingdom has in no manner been questioned. That power is a natural attribute of sovereignty, but police regulations may not discriminate partially and to the prejudice of friendly nations. Ships-of-war of the United States do not enter Portuguese ports upon mere sufferance, subject to the caprice, convenience, or orders of local subordinates. They come clothed with the rights guaranteed by treaty and by the public law, which are fully reciprocated on the part of the United States. They carry with them wherever they go the ensign of nationality, and represent the dignity and honor of a government which respects the rights of others, and is competent to maintain its own. Those ships-of-war are specially instructed to manifest, and have always shown, the utmost respect and courtesy towards the authorities of her Majesty’s government, giving a most signal proof of that disposition in the very case under consideration, by accepting and obeying the verbal request of an unknown subordinate to anchor at Belem, in the presence of the fact that a pirate or privateer was allowed to proceed without objection or restriction to the anchorage assigned to regular vessels-of-war. The United States claim the same privileges that are conceded to other nations in this respect, and when they involve indisputable rights they will be asserted.

I permit myself to hope that measures will be taken to prevent the recurrence of any such incident as that which has recently engaged attention, because it is not always possible to assure the same calm demeanor in presence of such great and serious provocation.

I avail myself of this opportunity to renew the assurances of my most distinguished consideration.