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 in New 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 the Prize Court is
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. H. Seward,
Secty. of State.
SOURCE: Gideon Welles, Diary of Gideon Welles,
Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30,
1864, p. 280-2
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