April 21, Tuesday. Have another dispatch from Du Pont in answer to one I sent him on the 11th enjoining upon him to continue to menace Charleston, that the Rebel troops on that station might be detained for the present to defend the place. In some respects this dispatch is not worthy of Du Pont. He says he never advised the attack and complains of a telegram from the President more than of the dispatch from the Department. If he never advised the attack, he certainly never discouraged it, and, until since that attack, I had supposed no man in the country was more earnest on the subject than he. How have I been thus mistaken? It has been his great study for many months, the subject of his visit, of his conversation, his correspondence. When Du Pont was here last fall, Dahlgren sought, as a special favor, the privilege of taking command, under Du Pont, of the attack onCharleston, — to lead in the assault. But it was denied, for the reason that Du Pont claimed the right to perform this great work in which the whole country took so deep an interest. His correspondence since has been of this tenor, wanting more ironclads and reinforcements. Once there were indications of faltering last winter, and I promptly told him it was not required of him to go forward against his judgment. No doubtful expression has since been heard. His third dispatch since the battle brings me the first intelligence he has thought proper to communicate of an adverse character.
Only some light matters came before the Cabinet. Chase and Blair were absent. The President requested Seward and myself to remain. As soon as the others left, he said his object was to get the right of the question in relation to the seizure of foreign mails. There had evidently been an interview between him and Seward since I read my letter to him on Saturday, and he had also seen Seward’s reply. But he was not satisfied. The subject was novel to him.
Mr. Seward began by stating some of the embarrassments of the present peculiar contest in which we were engaged, — the unfriendly feeling of foreign governments, the difficulty of preventingEnglandandFrancefrom taking part with the Rebels. He dwelt at length on the subject of mail communications and mails generally, the changes which had taken place during the last fifty years; spoke of the affair of theTrent, a mail packet, of the necessity of keeping on the best terms we could withEngland. Said his arrangement with Mr. Stuart, who was in charge of the British Legation, had been made with the approval of the President, though he had not communicated that fact to me, etc., etc.
I stated that this whole subject belonged to the courts, which had, by law, the possession of the mail; that I knew of no right which he or even the Executive had to interfere; that I had not regarded the note of the 31st of October as more than a mere suggestion, without examination or consideration, for there had been no Cabinet consultation; that it was an abandonment of our rights and an entire subversion of the policy of our own and of all other governments, which I had not supposed any one who had looked into the matter would seriously attempt to set aside without consultation with the proper Department and advisement, indeed, with the whole Cabinet.; that had there been such consultation the subject would, I was convinced, have gone no farther, for it was in conflict with our stated law and the law of nations; that this arrangement, as the Secretary of State called it, was a sort of post-treaty, by which our rights were surrendered without an equivalent, a treaty which he was not in my opinion authorized to make.
Mr. Seward said he considered the arrangement reciprocal, and if it was not expressed in words or by interchange, it was to be inferred to be the policy ofEngland, for she would not require of us what she would not give.
I declined to discuss the question of what might be inferred would be the future policy of England on a subject where she had been strenuous beyond any other government. I would not trust her generosity in any respect. I had no faith that she would give beyond what was stipulated in legible characters, nor did I believe she would, by any arrangement her Chargé might make, consent to abandon the principle recognized among nations and which she had always maintained. If this arrangement or treaty was reciprocal, it should be so stated, recorded, and universally understood. So important a change ought not and could not be made except by legislation or treaty; and if by treaty, the Senate must confirm it; if by legislation, the parliamentary bodies of both countries. There had been no such legislation, no such treaty, and I could not admit that any one Department, or the President even, could assume to make such a change.
The President thought that perhaps the Executive had some rights on this subject, but was not certain what they were, what the practice had been, what was the law, national or international. TheTrentcase he did not consider analogous in several respects. I had said in reply to Seward that theTrentwas not a blockade-runner, but a regular mail packet, had a semi-official character, with a government officer on board in charge of the mails. The President said he wished to know the usage, — whether the public official seals or mail-bags of a neutral power were ever violated. Seward said certainly not. I maintained that the question had never been raised in regard to a captured legal prize — not a doubt expressed — and the very fact that Stuart had applied to him for mail exemption was evidence that he so understood the subject. Where was the necessity of this arrangement, or treaty, if that were not the usage? The case was plain. Our only present difficulty grew out of the unfortunate letter of the 31st of October, — the more unfortunate from the fact that it had been communicated to the British Government as the policy of our Government, while never, by any word or letter have they ever admitted it was their policy. It is not the policy of our Government, nor is it the law of our country. Our naval commanders know of no such policy, no such usage, no such law; they have never been so instructed, nor have our district attorneys. The President, although he had affixed his name to the word ” approved ” in Seward’s late letter, and although he neither admitted nor controverted the statement that the letter of the 31st of October was with his knowledge and approval, was a good deal ” obfusticated ” in regard to the merits of the question, and the proceedings of Seward, who appeared to be greatly alarmed lest we should offend England, but was nevertheless unwilling to commit himself without farther examination. He said, after frankly declaring his ignorance and that he had no recollection of the question until recently called to his notice, that he would address us interrogatories. Mr. Seward declared, under some excitement and alarm, there was not time; that Lord Lyons was importunate in his demands, claiming that the arrangement should be fulfilled in good faith. I replied that Lord Lyons, nor the British Government, had no claim whatever except the concession made by him (Seward) in his letter of the 31st of October, while there was no concession or equivalent fromEngland.
The two letters of Seward and myself which brought about this interview, of the 18th and 20th instant respectively, are as follows: —
NAVY DEPARTMENT, 18 April, 1863.
SIR,
I have had the honor to receive your note of the 15th inst. in reference to the mails of the ” Peterhoff” which are in possession of the prize court inNew York. I am not aware that this Department has raised any “new questions or pretensions under the belligerent right of search,” in the case of the mails of the “Peterhoff.” Had there been ground for such an imputation, it could hardly, on an occasion to which so much importance has been given, have escaped the observation of Lord Lyons. He, however, advances no such charge, directly or by implication, and founds the demand made by him exclusively on the concession which he, apparently through some knowledge of the details of your letter to me of the 31st October, had been erroneously led to believe was made by this Government, in instructions given to the commanders of its vessels of war.
The true question in the present case is, whether the administration of the law shall be suffered to take its ordinary course, or whether the Court established to administer the law, and which has certainly been in existence long enough to know its powers and duties, shall be arrested in the discharge of its functions by an order of the Executive, issued on the demand of a foreign government, which exhibits no evidence, and in fact makes no charge that law or usage has been violated on our part.
If the “Peterhoff ” was captured and sent to the Prize Court without any reasonable grounds for such a proceeding, then undoubtedly the opening of the mails, if it takes place, may have been an illegal act, — but in my judgment, not otherwise. If it is to be assumed that the capture was wrongful, not only the mails but the vessel and cargo should at once be surrendered.
It may be an “unfavorable time to raise new questions or pretensions,” but it is certainly no time to renounce any right or to unsettle any long and well established principles and usage. Such a surrender would be a confession of weakness which even if it existed, it would be “inexpedient and injurious” to make known to our enemies. If the case be one of doubt, it will be time enough to yield when the doubt is dispelled, and we are found to have been in the wrong. We may then yield and make amends.
I do not consider it necessary to discuss the question of genuine or spurious and simulated mails; but will merely suggest that if what pretends to be a mail is to be considered, in all cases, prima facie sacred, and exempt from examination, it will hereafter be found exceedingly difficult, in practice, to distinguish the spurious from the genuine, nor indeed would there be any necessity for the fabrication of a spurious mail.
In the meantime I cannot but hold that thePrize Courtis lawfully in possession of the mail bag in question and that the Court itself is the proper authority to adjudge and determine what disposition shall be made of it. I propose to avoid all new questions by leaving the whole matter to this ancient method of adjustment, established by the consent of nations, and it was in order to avoid innovations, as well as to maintain our national rights and the legal rights of the captors, that the suggestions contained in your note of the 31st October were not adopted by this Department.
I am, respectfully, Your Obdt. Serv’t,GIDEON WELLES,Secty. of Navy.
HON. WM. II. SEWARD, Secty. of State.
DEP’T. OF STATE, 20th April, 1863.
HON. G. WELLES, &C.
SIR: In reply to your note of the 18th inst. on the subject of the mails of the “Peterhoff,” it seems proper for me to say that when the question of detaining the public mails found on board of vessels visited and searched by the blockading forces of the U. States, was presented to this Department last year, I took the instructions of the President thereupon. Not only the note which I addressed to you on the 8th day of August last, but also the note which I addressed to you on the 31st of October last, concerning this question, was written with the approval and under the direction of the President. The views therein expressed were then communicated to the British Government by authority of the President, as defining the course of proceedings which would be pursued when such cases should occur thereafter. On receiving your note of the 13th inst., intimating a view of the policy to be pursued differing from what had thus been determined by the President on the 31st of October last, I submitted to him that note together with all the previous correspondence bearing upon the subject, together with the act of Congress to which you have called my attention. I then asked his instructions in the case of the mails of the Peterhoff. The note which I addressed to you on the 15th was the result of these instructions, and having been read and approved by him, it was transmitted to you by his direction. I was also directed to communicate the contents thereof to the Dist. Attorney of theU. S.for the Southern District of New York, and also to announce to Lord Lyons, for the information of the British Government, that the mails of the “Peterhoff ” would be forwarded to their destination. I was also directed by the President to make some special representations to the British Government on the general subject of the mails of neutrals, which are now in preparation.
I need hardly say that no part of my note of the 15th instant was intended or was understood by me as imputing to you the having raised or being disposed to raise new questions. What was said on that subject, was said by way of showing that a course of proceedings different from what I was recommending, would involve, on the part of this Government, the raising of a question which had been waived by it in my correspondence with the British Government in October last.
I have the honor to be &c.WILLIAM H. SEWARD.
