No. 1., July 30, 1861
No. 1.
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 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.