Gideon Welles to Abraham Lincoln, September 30, 1863

Navy Department,

30 Sept. 1863.

SIR:

Since the interview with you some weeks since, in relation to certain proposed instructions to our Naval Officers, I have, as suggested, given the subject careful and thorough investigation, and am fully satisfied that neither in British law nor British practice is there any authority or precedent for such instructions. As Her Majesty's representative has introduced the subject, I have embodied what I believe to be the law and usage on the several points, in a distinct paper, which can, if you think proper, be submitted to Lord Lyons, and if I have in that document done injustice in any respect to British authority and British usage, or misapprehended or misstated international law, I shall be happy to be corrected.

Permit me in this connection to express my surprise and regret that the British Minister should so persistently insist on interfering in matters that belong to the Prize Courts, and on which he should not be heard from diplomatically, as, were Great Britain in our case and we in hers, the American Minister in London would not be heard diplomatically until judicial remedies have been exhausted. His right to be heard in the Court of Prize, according to its rules of procedure, and in the proper cases, is unquestioned. If the Court, after its appellate jurisdiction is fully exhausted, should fail to do justice in any case then undoubtedly, and not till then, diplomacy may properly come in. But I do not understand by what authority Her Majesty's Minister intervenes at all, even in the Prize Courts by suggestion, or before you, in cases where the violation of territorial immunities of Neutral powers, other than Great Britain, is in question.

If our Naval Officers violate the sovereignty, or the neutrality, or the municipal regulations, of a neutral state, we are, first in our Prize Courts and then diplomatically, amenable for that violation to the neutral state itself, and not to Great Britain, even though the act of violation has been perpetrated there by us upon a British vessel. There is no principle of international law better settled than this, and I respectfully insist that no one but the sovereign of the neutral territory which is violated, has the slightest right to allege or suggest such violation, even in our prize courts, and much less diplomatically.

As regards persons on board of captured neutral vessels the best rule of law is that they shall be sent in as witnesses; the requirement of law is that some be sent in; and if the captor fails to send them all in, he so fails at his peril of not sending enough; and if he sends them all in, all being neutral, no one has the right anywhere to complain of him, provided only that he had probable cause for capturing the ship.

But in the war in which we are now engaged, it must be remembered that no inconsiderable portion of the persons captured on some of the vessels, claiming to be neutral, are rebels. It is impossible for the captor to decide who, or how many are rebels. It certainly is not advisable to go counter to the rule so framed by all the Courts, nor to release captured rebel prisoners.

I am not unaware of your strong desire to conciliate Great Britain and to make all reasonable concessions to preserve friendly relations with her. In this feeling I cordially participate. But my earnest conviction is that we shall best command the respect which insures peace, by firmly, but not offensively, maintaining our rights; and in no way can amicable relations with Great Britain and others be so surely maintained as by our claiming only what is right, by surrendering nothing that is clearly and indisputably our own, and by referring always the question of what our just rights are to those tribunals of Prize, which are instituted by the consent of nations to adjudge these points, under the law of nations and in the interests of peace, by reason of the acknowledged inability of diplomacy, even in the most skilful hands, to deal satisfactorily, before-hand, with these complicated questions as they arise.

I am, respectfully, &c.

Gideon Welles,

Secty of Navy.

The President.

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 452-3

Gideon Welles to William H. Seward, August 26, 1863

Navy Department,

26 Aug. 1863.

Sir,

I have had the honor to receive your communication of the 4th Ins't. & 14th Ins't., in relation to the case of the British schooner "Mont Blanc," captured by the U. S. Steamer “Octorara,” Commander Collins, and released by the Prize Court at Key West.

In your letter of the 4th Ins't., which gives a summary of the correspondence in relation to this case, you refer to the order of the prize court, in which “it is declared that the cause of the U. S. against the schooner ‘Mont Blanc’ and cargo, having come on to be heard, it is ordered by consent of all the parties interested that the vessel and cargo be released to the claimant for the benefit of whom it may concern; that there was probable cause for the capture and detention of the vessel and that each party pay his own costs.”

And in the same letter you state that “so far as relates to damages, the ground was expressly taken in the correspondence with Lord Lyons that the master and owner had waived damages by accepting the decree and restitution of his vessel. But there still remained a party and rights which the prize court did not foreclose. That party was the Government of Great Britain, and its claim was one for redress for injuries to its sovereignty and dignity by a violation of her territory. No prize court of our country can try and decide a National claim of this sort."

Your letter of the 14th Ins't. encloses a copy of a note from Lord Lyons, in which he says that on being informed by you that directions to proceed to the assessment of damages in this case would be given to Rear Admiral Bailey, he would on his part take care that proper directions should be sent to Mr. Vice Consul Butterfield and that he, Lord Lyons, is waiting for this information before taking any further steps.

It appears, therefore, that this Depar't is expected to give directions for the assessment of damages in a case where it has repeatedly stated it would be improper for the Department to interfere, where the Judicial tribunal, which had cognizance, had decided that no damages are due, and where it is admitted that the master and owner have renounced all claim to damages.

The Department has been placed in this unfortunate and somewhat anomalous position, partly by its own fault in too readily acquiescing in the proffered reparation by the State Department, and an arrangement that had been made by that Department with Her Majesty's representative, to ascertain and agree upon the damages to be paid, and to consider and dispose of the whole subject.

In consequence of the representations communicated in your letter of the 7th of May, the Department has conveyed to the Commander of the Octorara the Executive censure for doing what the Court has decided he was excusable in doing. Although in this case of the “Mont Blanc,” as on repeated occasions, the impropriety of interfering in matters of prize, which belong legitimately to the courts, was freely expressed, yet under the urgent appeals that were made, an assurance that the amount was small, and the case could be more speedily and satisfactorily disposed of, by referring it to some person at or near Key West to consider and dispose of the whole subject without an appeal to the Court, the Department, without fully considering the effect, and the legal power to afford reparation, was induced, in accordance with your request that some suitable person should be designated to take part in a conference as to damages, to name Acting Rear Admiral Bailey, for it knew no other in that locality unconnected with the Court.

No instructions, however, have yet been given Acting Rear Admiral Bailey, and the case, as it now stands, is such that the Department doubts its power to give the instructions which seem to be required and expected. The powers of the Department are limited by law, and I am aware of no law which authorizes it to decide what you represent as a political claim only to be tried and adjudicated by the two Governments concerned, — “a national claim of this sort.” The authority of the Department extends only to legal, individual claims, in cases where it is clearly responsible in law for the acts of its agents. But in this case the law, or the tribunal which had authority to expound and administer the law, has exonerated the agent of the Department from any responsibility. It is admitted that there is no claim in law — only a political claim: no individual claim, but “a national claim.”

In such a case the Depar't would be perplexed in attempting to assess the damages, or in instructing others how to assess them. If it admits in this case that the legal renunciation of damages was of no effect, and that the claimant retained a legal claim for damages, it must make the same admission in every case, and ignore a well settled rule of admiralty and international law.

If it undertakes to estimate a pecuniary equivalent for an aggression upon the dignity of a foreign government, its action might seem offensive, while it had every disposition to avoid giving offense. An apology for an injury to “sovereignty and dignity” may be more or less earnest, but how can such injuries be estimated in dollars and cents, or pounds, shillings and pence? It is to be presumed that the British Government does not desire the claim to be considered in this light.

It may be said the amount of damages in this case would be the amount which the Court at Key West would have awarded, had its decision been what a foreign government claims would have been righteous. But the Department cannot assent to this, for it has no authority to repudiate or set aside the decision of a Court of the United States. That can be done only by a Superior Court or by Congress. It is the duty of this Department to respect and obey the decisions of the Courts of the United States.

It is said that the decree “did not foreclose” the rights of the Government of Great Britain to claim redress in this case. In one sense — to a certain extent — this is true. The decision of the highest court in the land would not be conclusive on a foreign government. But if a claimant voluntarily renounces his claim, or right to appeal, can his government claim that justice has been denied him? Does not ordinary comity “foreclose” any government from taking it for granted that it cannot obtain justice from the tribunals of another, until it has at least made the attempt? In this case of the “Mont Blanc” there was an appeal open to the Supreme Court of the United States. Had it been taken, the result might possibly have been that the decree of the lower court would have been set aside and the case remanded with directions to grant ample damages; or, on the other hand, the decree of the lower court might have been confirmed, for reasons so clear and convincing that the claimant himself would have acquiesced, and his government have been foreclosed by its own sense of justice.

Viewing the matter in this light, it appears to me that the right of the British Government to claim damages in this particular case has been foreclosed, not by the decision of the Prize Court at Key West, but by the acquiescence of the claimants in that decision. The question of damages for injuries to “sovereignty and dignity” is one which this Department has no authority to investigate or settle, and should pecuniary amends be required, it has no fund at its disposal to which the disbursement could be charged.

Acting Rear Admiral Bailey having been designated as a suitable person to confer on the subject of damages, before it was known that the Court had adjudicated the case, I have the honor to enclose herewith a copy of the order which has been sent to that officer, directing him to attend to the duty, should it be further prosecuted, whenever he shall receive instructions from the Secretary of State in the premises.

Very respectfully,

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. 423-6

William H. Seward to Gideon Welles, August 4, 1863

Dep't. of State, 4 Aug. 1863.

Hon. G. Welles, Secty. of the Navy.

Sir:— I have the honor to acknowledge the receipt of your communication of the 31st ulto. relating to the case of the Mont Blanc.

The following seems to be the history of the correspondence on that subject:

On the 9th of Jan. 1863, Aubrey G. Butterfield, Esqr., British Consul at Key West, addressed to the British Consul at New York a note in which he stated that the Mont Blanc of Nassau, New Providence, A. Curry, Master, reached Key West on the 29th of December 1862, under charge of the Octorara; that she had sailed from Green Turtle Key for Port Royal, South Carolina, on the 6th of December and was captured on the 21st when at anchor at Sand Key, Bahama Bank, a mile off the shore. This letter having been transmitted to me by Lord Lyons with a request for investigation, I had the honor to communicate it to you on the 13th of January. On the 17th of January you communicated to me a letter from Commander Collins of the Octorara in which he narrated the capture, and you remarked in the letter which you addressed to me, on that occasion, that it appeared that he captured the Mont Blanc within a marine league of one of the Cays over which the English Government claims jurisdiction, and that the question of jurisdiction at the Keys and Reefs of the Bahamas is one that should not be disposed of without deliberation; for although the amount at issue (in that capture) might be small, yet the principle is important.

Acting Rear Admiral T. Bailey endorsed on the report of the capture made by Commander Collins, the words following: — “Forwarded and attention requested to the fact that one of the captures (meaning that of the Mont Blanc) was made within a marine league of one of the Keys of the Bahamas over which the English claim jurisdiction.”

The report of Commander Collins and the indorsement of Acting Rear Admiral Bailey thereon, were communicated to me by you and were afterwards made known to Lord Lyons in reply to his previous call upon this Dep't for explanation.

On the 2d of Feb. T. J. Boynton, Esqr., U. S. District Attorney at Key West, wrote to me to the effect that he had consented to the dismission of the libel against the Mont Blanc and her restitution to the master and claimant, for the reason that the evidence and statements of all parties left no room to doubt that the place where she was seized was within British waters.

On the 9th of Feb. you wrote to me a letter, saying that, in your previous letter, you had called my attention to the question of jurisdiction, not for the purpose of indicating that you had adopted any precise and fixed opinion on the particular question, but to call my attention to a matter which seemed likely to be followed by unlocked for and important consequences.

On the 11th of Feb. I had the honor to transmit to you a copy of Mr. Boynton's letter and on the same day communicated a copy of it also to Lord Lyons. On the 1st of May Lord Lyons replied under the instructions of the British Govt. to the effect that the seizure is admitted to have been made in British waters and while the Mont Blanc was at anchor; and Her Majesty's Gov't had accordingly desired him not only to express their expectation of compensation to the owners for the plain wrong done to them, but also to address to the U. S. Gov't a remonstrance against the violation of British territory committed in this case, and to request that orders may be given to the U. S. Navy to abstain from committing the like grave offense against international law and the dignity of the British crown.

To this note, by the President's directions, I replied on the 7th of May, last, that when this case was first brought to the notice of the State Department I had called upon the Secretary of the Navy for information which resulted in a confirmation of His Lordship's representations that the Mont Blanc was seized at anchor within a mile of the shore in waters of which Great Britain claimed jurisdiction; that the vessel having been carried into Key West for adjudication, the attention of the District Attorney there was directed to the case; that on the 2nd of Feb. the Dist. Attorney reported dismission of the case and restitution of the Mont Blanc to Master and Claimant because evidently it had been seized in British waters. That it seemed probable at that time that the master and claimant might have waived any further claim by assenting to the disposition of the case which was thus made without insisting upon a continuance of it for the purpose of obtaining damages. That I had now submitted the claim to the President, and was authorized to say that he admits that in view of all the circumstances of the case such compensation ought to be made and I therefore proposed the mode of settlement which was finally accepted, and which is mentioned in your letter of this date.

You now lay before me a copy of the order which was made in the Prize Court at Key West on the 19th of Jany., before Judge Marvin. In this order it is declared that the cause of the United States against the schooner Mont Blanc and cargo, having come on to be heard, it is ordered by consent of all the parties interested that the vessel and cargo be restored to the claimant for the benefit of whom it may concern; that there was probable cause for the capture and detention of the vessel and that each party pay his own costs. Having communicated this order to me, you inform me that Commander Collins feels that he was reproved for an honest and vigilant discharge of a difficult and responsible duty, and is sensitive on a point touching his professional reputation.

You remark that the judgment of the Court having the parties before it, and all the facts in the premises is an exculpation of Commander Collins, who nevertheless stands reproved and censured for doing that which the Court declares that he had probable cause for doing, and would therefore allow no costs, much less damages. You remark farther that you have felt it your duty to call my attention to this fact, not only to vindicate the opinion which you have so frequently expressed that all matters of prize should be left to the Court for adjudication without prejudice or prejudgment from the Department, but in justice to a meritorious officer, who has been censured for a faithful discharge of his duty and who is acquitted by the legal tribunal for this act in seizing the Mont Blanc.

You submit an opinion that Her Majesty's Representative will scarcely insist on damages because in his correspondence with the Gov't an incautious admission may have been made, while the Court, the proper tribunal, has investigated the case, and comes to a different conclusion.

Finally, you remark that it is but an act of simple justice to Commander Collins that the censure upon him should be removed, and that his record should remain unstained by the capture of the Mont Blanc.

I have submitted your note to the President together with the voluminous correspondence which it necessarily draws in review. It may be supposed, although it is not stated, that Commander Collins, in making the capture of the Mont Blanc, intended to furnish this Gov't with an occasion to raise a question whether the Key on which that vessel was captured was really within the maritime jurisdiction, although she was known to assert that claim; and it may be inferred that you intended in your letter of the 17th of Jany. last to intimate to the State Department that the capture presented an opportunity for raising that question.

However this may have been, Rear Adm'l Bailey's indorsement upon Commander Collins' report, and your own remarks upon it, were so expressed as to be understood to concede that the place of capture was within the proper maritime jurisdiction of Great Britain. But whatever reservation might have been practised on that question under other circumstances, it was quite too late for the Executive Government to raise it against the British Government after the Prize Court, with the consent of the Dist. Attorney and the captors, had dismissed the libel and ordered the restitution of the Mont Blanc, upon an agreement of all the parties that the place of capture was unquestionably within British jurisdiction.

So far as relates to damages, the ground was expressly taken in the correspondence with Lord Lyons that the master and owner had waived damages by accepting the decree and the restitution of his vessel. But there still remained a party and rights which the Prize Court did not foreclose. That party was the Gov't of Great Britain, and its claim was one for redress for injuries to its sovereignty and dignity by a violation of her territory. No prize court of our country can try and decide a national claim of this sort. It is a political claim only to be tried and adjudicated by the two Governments concerned. The records of the Gov't admitted the violation. It was confessed in the Court, and made the basis of the restitution of the vessel and her cargo to the owners. It is not perceived that the judgment of the Court now produced affects the disposition of the subject which has been made by the President. The judgment itself is a record that the national sovereignty of Great Britain was violated. And no shadow of a cause justifying the violation has been raised in the whole correspondence. There is nothing but self-defense that could excuse the exercise of aggressive national authority, confessedly on the shores or within the waters of a friendly or neutral nation. It is true the Judge says in that record that there was probable cause for capture, but in the first place, Her Majesty's Gov't was not a party to that cause, and could not be, the alleged violation of its dignity was not a question upon which the Court had cognizance; and no foreign nation is concluded upon such a claim by the judgment of a prize court in another nation.

The President alone is the judge of what indemnity or satisfaction was due to the British Gov't upon the claim which they presented to him; and having awarded that satisfaction, he is now of opinion that he could not, without giving national offense, withdraw or retract the satisfaction which he has awarded, and which Her Majesty's Gov't have accepted.

He is gratified with the evidence furnished that Commander Collins was actuated by loyal and patriotic motives in making a capture which has been proved to be erroneous. This explanation goes with the record, and it is not deemed unfortunate that the U. S. have shown their respect for the Law of Nations while they can excuse to themselves, but not to foreign nations, an unintentional departure from that law by its most trusted agents.

I have the honor to be, Sir,

Your Obedient Servant,

William H. Seward.

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 418-23

Gideon Welles to William H. Seward, July 31, 1863

Navy Department,

31 July, 1863.

Sir,

On the 13th of May last I had the honor to receive a note from you enclosing the copy of a communication addressed to Lord Lyons, under date of the 7th of May, relative to the seizure of the British schooner Mont Blanc, at Sand Key, Bahama Banks.

In that communication, and in personal interviews, I was informed that it had been admitted by our government that Commander Collins had been guilty of “inconsiderate conduct,” and that “compensation ought to be made for the wrong done.” I was requested also to designate some person at or near Key West to ascertain the damage to be paid, and in view of these facts, the President directed that the attention of the officers of the Navy shall be distinctly called to certain instructions in a note of yours of the 8th of August last, — alluding I presume to certain suggestions communicated through you to this Department on that day, which eventuated in the instructions to Naval Officers on the 18th of August, 1862. I was moreover directed to make known to Commander Collins that by “seizing the Mont Blanc in British waters and at anchor, he had incurred the disapprobation of the President, and that any repetition will be visited with more severe and effective censure.”

In carrying into effect these views, I took occasion to express to you, as I had on other occasions, the opinion that the subjects involved belonged to the courts rather than the Departments, and that with all the facts and circumstances before them, the judicial tribunals would arrive at more correct conclusions than we could with only limited and ex-parte information. As requested, however, I designated Acting Rear Admiral Bailey to adjudicate or pass upon the question of damages and informed Commander Collins that he had incurred the displeasure of the President. That officer, feeling that he was reproved for an honest and vigilant discharge of a difficult and responsible duty, and sensitive on a point touching his professional reputation, has procured and forwarded to the Department the final order of the Court at Key West, in the case of the Mont Blanc, a copy of which I have the honor to transmit herewith. From this final order of Judge Marvin it will be seen that, although by consent of all the parties in interest, the vessel and cargo were restored to the claimants, yet it was decided by the Court “that there was probable cause for the capture and detention of the vessel and that each party pay its own costs.”

The judgment of the Court, having the parties before it and all the facts in the premises, is an exculpation of Commander Collins, who nevertheless stands reproved and censured for doing that which the Court declares he had probable cause for doing, and would therefore allow no costs, much less damages.

I have felt it my duty to call your attention to this fact, not only to vindicate the opinion which I have so frequently expressed, that all matters of prize should be left to the Courts for adjudication, without prejudice or pre-judgment from the Departments, but in justice to a meritorious officer who has been censured for what he believed a faithful discharge of his duty, and who is acquitted by the legal tribunal for his act in seizing the Mont Blanc.

I apprehend Her Majesty's representative will scarcely insist on damages because, in his correspondence with the government, an incautious admission may have been made, while the court, the proper tribunal, has investigated the case and come to a different conclusion.

I think, moreover, it is an act of simple justice to Commander Collins that the censure upon him should be removed and that his record should remain unstained by the capture of the Mont Blanc.

Very respectfully,

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. 417-8

Diary of Gideon Welles: Saturday, August 24, 1863

Our advices from Charleston show progress, though slow. The monitors perform well their part. Few casualties have occurred. We hear of a sad one to-day however, in the death of George Rodgers,¹ one of the noblest spirits in the service. It is sad that among so many he, who has perhaps no superior in the best qualities of the man, the sailor, and the officer, should have been the victim. The President called on me in some anxiety this morning, and was relieved when he learned it was not John Rodgers of Atlantic fame. But without disparagement to bold John, no braver, purer spirit than gallant, generous, Christian George could have been sacrificed, and I so said to the President.

Am annoyed and vexed by a letter from Seward in relation to the Mont Blanc. As usual, he has been meddlesome and has inconsiderately, I ought to say heedlessly and unwittingly, done a silly thing. Finding himself in difficulty, he tries to shift his errors on to the Navy Department. He assumes to talk wise without knowledge and to exercise authority without power.

The history of this case exemplifies the management of Mr. Seward. Collins in the captured the Mont Blanc on her way to Port Royal. The capture took place near Sand Key, a shoal or spit of land over which the English claim jurisdiction. I question their right to assume that these shoals, or Cays, belong to England, and that her jurisdiction extends a marine league from each, most of them being uninhabited, barren spots lying off our coast and used to annoy and injure us. I suggested the propriety of denying, or refusing to recognize, the British claim or title to the uninhabited spots; that the opportunity should not pass unimproved to bring the subject to an issue. But Mr. Seward flinched before Lord Lyons, and alarmed the President by representing that I raised new issues, and without investigating the merits of the case of the Mont Blanc, which was in the courts, he hastened to concede to the English not only jurisdiction, but an apology and damages. It was one of those cases alluded to by Sir Vernon Harcourt, when he admonished his government that “the fear was not that Americans would yield too little, but that England would take too much.” Seward yielded everything, — so much as to embarrass Lord Lyons, who anticipated no such humiliation and concession on our part, and therefore asked time. The subject hung along without being disposed of. Seward, being occasionally pushed by Lord Lyons, would come to me. I therefore wrote him on the 31st of July a letter which drew from him a singular communication of the 4th inst., to which I have prepared a reply that will be likely to remain unanswered.

_______________

1 Commander George Washington Rodgers, who was killed in the attack on Fort Wagner, August 17, 1863.

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 415-7

Diary of Gideon Welles: Friday, August 21, 1863

Made an early call on the President with Joseph P. Allyn, one of the Judges for the Territory of Arizona, on the subject of Governor for that Territory. At the Cabinet-meeting, subsequently, the President concluded to appoint Goodwin Governor and Turner Chief Justice.

Had a free conversation with the President on his proposed instructions to our naval officers. Told him they would in my opinion be injudicious. That we were conceding too much, and I thought unwisely, to the demands of the British Minister. He said he thought it for our interest to strengthen the present ministry, and would therefore strain a point in that direction. I expressed a hope he would not impair his Administration and the national vigor and character by yielding what England had no right to claim, or ask, and what we could not, without humiliation, yield. I finally suggested that Lord Lyons should state what were the instructions of his government, — that he should distinctly present what England claimed and what was the rule in the two cases. We are entitled to know on what principle she acts, — whether her claim is reciprocal, and if she concedes to others what she requires of us. The President chimed in with this suggestion, requested me to suspend further action, and reserve and bring up the matter when Seward and Lord Lyons returned.

This conclusion will disturb Seward, who makes no stand, — yields everything, — and may perhaps clear up the difficulty, or its worst points. I do not shut my eyes to the fact that the letter of the President and the proposed instructions have their origin in the State Department. Lord Lyons has pressed a point, and the easiest way for Mr. Seward to dispose of it is to yield what is asked, without examination or making himself acquainted with the principles involved and the consequences which are to result from his concession. To a mortifying extent Lord Lyons shapes and directs, through the Secretary of State, an erroneous policy to this government. This is humiliating but true.

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 409-10

Diary of Gideon Welles: Wednesday, August 12, 1863

The President addressed me a letter, directing additional instructions and of a more explicit character to our naval officers in relation to their conduct at neutral ports. In doing this, the President takes occasion to compliment the administration of the Navy in terms most commendatory and gratifying.

The proposed instructions are in language almost identical with certain letters which have passed between Mr. Seward and Lord Lyons, which the former submitted to me and requested me to adopt. My answer was not what the Secretary and Minister had agreed between themselves should be my policy and action. The President has therefore been privately interviewed and persuaded to write me, — an unusual course with him and which he was evidently reluctant to do. He earnestly desires to keep on terms of peace with England and, as he says to me in his letter, to sustain the present Ministry, which the Secretary of State assures him is a difficult matter, requiring all his dexterity and ability, — hence constant derogatory concessions.

In all of this Mr. Seward's subservient policy, or want of a policy, is perceptible. He has no convictions, no fixed principles, no rule of action, but is governed and moved by impulse, fancied expediency, and temporary circumstances. We injure neither ourselves nor Great Britain by an honest and firm maintenance of our rights, but Mr. Seward is in constant trepidation lest the Navy Department or some naval officer shall embroil us in a war, or make trouble with England. Lord Lyons is cool and sagacious, and is well aware of our premier's infirmities, who in his fears yields everything almost before it is asked. Hence the remark of Historicus (Sir Vernon Harcourt) that “the fear of England is not that the Americans will yield too little but that we shall take too much.” That able writer has the sagacity to see, and the frankness to say, that the time will come when England will have a war on her hands and Americans will be neutrals.

The President has a brief reply to Governor Seymour's rejoinder, which is very well. Stanton said to me he wished the President would stop letter-writing, for which he has a liking and particularly when he feels he has facts and right [on his side]. I might not disagree with Stanton as regards some correspondence, but I think the President has been more successful with Seymour than some others. His own letters and writings are generally unpretending and abound in good sense.

Seward informs me in confidence that he has, through Mr. Adams, made an energetic protest to Great Britain against permitting the ironclads to leave England, distinctly informing the Ministry that it would be considered by us as a declaration of war. The result is, he says, the ironclads will not leave England. I have uniformly insisted that such would be the case if we took decided ground and the Ministry were satisfied we were in earnest.

Spain, Seward says, had been seduced with schemes to help the Rebels, and was to have taken an active part in intervention, or acknowledging the independence of the Confederates, but on learning the course of Roebuck, and after the discussion in the British Parliament, Spain had hastened to say she should not interfere in behalf of the Rebels. But Tassara, the Spanish Minister, under positive instructions, had on the 9th inst. given our government formal notice that after sixty days Spain would insist that her jurisdiction over Cuba extended six miles instead of the marine league from low-water mark. To this Seward said he replied we should not assent; that we could not submit to a menace, especially at such a time as this; that the subject of marine jurisdiction is a question of international law in which all maritime nations have an interest, and it was not for Spain or any one or two countries to set it aside.

He says Lord Lyons has been to him with a complaint that a British vessel having Rebel property on board had been seized in violation of the admitted principle that free ships made free goods. But he advised Lord L. to get all the facts and submit them, etc.

From some cause Seward sought this interview and was unusually communicative. Whether the President's letter, which originated with him, as he must be aware I fully understand, had an influence in opening his mouth and heart I know not. His confidential communication to me should have been said in full Cabinet. In the course of our conversation, Seward said “some of the facts had leaked out through the President, who was apt to be communicative.

The condition of the country and the future of the Rebel States and of slavery are rising questions on which there are floating opinions. No clear, distinct, and well-defined line of policy has as yet been indicated by the Administration. I have no doubt there is, and will be, diversity of views in the Cabinet whenever the subject is brought up. A letter from Whiting, Solicitor of the War Department, has been recently published, quite characteristic of the man. Not unlikely Stanton may have suggested, or assented to, this document, by which some are already swearing their political faith. Mr. Whiting is in high favor at the War and State Departments, and on one occasion the President endorsed him to me. I think little of him. He is ready with expedients but not profound in his opinions; is a plausible advocate rather than a correct thinker, more of a patent lawyer than a statesman. His elaborate letter does not in my estimation add one inch to his stature.

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 398-400

Diary of Gideon Welles: Thursday, May 21, 1863

Had an early call from the President, who brought a communication from Tassara to Seward, complaining of violation of neutral rights by a small pilot-boat, having a gun mounted amidships and believed to be an American vessel, which was annoying Spanish and other neutral vessels off the coast of Cuba. The President expressed doubts whether it was one of our vessels, but I told him I was inclined to believe it was, and that I had last week written Mr. Seward concerning the same craft in answer to Lord Lyons, who complained of outrage on the British schooner Dream, but I had also written Admiral Bailey on the subject. I read my letter to the President. He spoke of an unpleasant rumor concerning Grant, but on canvassing the subject we concluded it must be groundless, originating probably in the fact that he does not retain but has evacuated Jackson, after destroying the enemy's stores.

It is pretty evident that Senator John P. Hale, Chairman of the Naval Committee of the Senate, is occupying his time in the vacation in preparing for an attack on the Navy Department. He has a scheme for a tract of land with many angles, belonging to a friend, which land he has procured from Congress authority for the Secretary to purchase, but the Secretary does not want the land in that shape. It is a “job,” and the object of this special legislative permission to buy, palpable. Hale called on me, and has written me, and I am given to understand, if I do not enter into his scheme, — make this purchase, — I am to encounter continued and persistent opposition from him.

Hale has also sent me a letter of eight closely written pages, full of disinterested, patriotic, and devoted loyalty, protesting against my detailing Commodore Van Brunt to be one of a board on a requisition from the War Department for a naval officer. Van Brunt has committed no wrong, is accused of none, but Hale doesn't like him. I replied in half a page. I will not waste time on a man like Hale.

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 307-8

Diary of Gideon Welles: Saturday, May 16, 1863

Saw Seward this morning respecting Wilkes. After talking over the subject, he said he cared nothing about Wilkes, that if he was removed he would be made a martyr, and both he (S.) and myself would be blamed and abused by the people, who knew not the cause that influenced and governed us. He then for the first time alluded to the removal of Butler, which he said was a necessity to appease France. Nevertheless France was not satisfied, yet Butler's removal had occasioned great discontent and called down much censure. If I could stand the recall of Wilkes, he thought he could. I answered him that any abuse of me in the discharge of my duty and when I knew I was right would never influence my course. In this case I could better stand his recall than the responsibility of sending him into the Pacific, where he would have great power and be the representative of the Government; for he is erratic, impulsive, opinionated, somewhat arbitrary towards his subordinates, and is always disinclined to obey orders which he receives if they do not comport with his own notions. His special mission, in his present command, had been to capture the Alabama. In this he had totally failed, while zealous to catch blockade-runners and get prize money. Had he not been in the West Indies, we might have captured her, but he had seized the Vanderbilt, which had specific orders and destination and gone off with her prize-hunting, thereby defeating our plans. Seward wished me to detach him because he had not taken the Alabama and give that as the reason. I care to assign no reasons, — none but the true ones, and it is not politic to state them.

When I was about leaving, Seward asked as a favor that I would address him a proposition that the matter of the Mont Blanc should be left to Admiral Bailey alone. The whole pecuniary interest involved did not, he said, exceed six or eight hundred dollars, and it would greatly relieve him at a pinch, if I would do him this favor, and harm no one, for the vessel had been seized sleeping at anchor within a mile of the Cays, and was retained by the court. I asked what he had to do with it anyway. He gave me no satisfactory answer, but went into the trouble he had in keeping the Englishmen quiet and his present difficulties. All of which, I take it, means he has loosely committed himself, meddled with what was none of his business, made inconsiderate promises to Lord Lyons, and wishes me, who have had nothing to do with it, but have objected to the whole proceeding, to now propose that Admiral Bailey shall be sole referee. This will enable him to cover up his own error and leave it to be inferred that I have prompted it, as B. is a naval officer.

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 304-5

Diary of Gideon Welles: Friday, May 15, 1863

The President called on me this morning with the basis of a dispatch which Lord Lyons proposed to send home. He had submitted it to Mr. Seward, who handed it to the President, and he brought it to me. The President read it to me, and when he concluded, I remarked the whole question of the mails belonged properly to the courts and I thought unless we proposed some new treaty arrangement it would be best the subject should continue with the courts as law and usage directed. “But,” he inquired, “have the courts ever opened the mails of a neutral government?” I replied, “Always, when the captured vessels on which mails were found were considered good prize.” “Why, then,” said he, “do you not furnish me with the fact? It is what I want, but you furnish me with no report that any neutral has ever been searched.” I said I was not aware that the right had ever been questioned. The courts made no reports to me whether they opened or did not open mail. The courts are independent of the Departments, to which they are not amenable. In the mails was often the best and only evidence that could insure condemnation. [I said] that I should as soon have expected an inquiry whether evidence was taken, witnesses sworn, and the cargoes examined as whether mails were examined. “But if mails ever are examined,” said he, “the fact must be known and recorded. What vessels,” he asked, “have we captured, where we have examined the mails?” “All, doubtless, that have had mails on board,” I replied. Probably most of them were not intrusted with mails. “What,'” asked he, '”was the first vessel taken?” “I do not recollect the name, a small blockade-runner, I think; I presume she had no mail. If she had, I have no doubt the court searched it and examined all letters and papers.” He was extremely anxious to ascertain if I recollected, or knew that any captured mail had been searched. I told him I remembered no specific mention, doubted if the courts ever reported to the Navy Department. Foreign governments, knowing of the blockade, would not be likely to make up mails for the ports blockaded. The Peterhoff had a mail ostensibly for Matamoras, which was her destination, but with a cargo and mails which we knew were intended for the Rebels, though the proof might be difficult since the mail had been given up. I sent for Watkins, who has charge of prize matters, to know if there was any record or mention of mails in any of the papers sent the Navy Department, but he could not call to mind anything conclusive. Some mention was made of mails or dispatches in the mail on board the Bermuda, which we captured, but it was incidental. Perhaps the facts might be got from the district attorneys, though he thought, as I did, that but few regular mails were given to blockade-runners. The President said he would frame a letter to the district attorneys, and in the afternoon he brought in a form to be sent to the attorneys in Philadelphia, New York, and Boston.

Read Chase the principal points in the Peterhoff case. He approved of my views, concurred in them fully, and said there was no getting around them.

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 302-4

Diary of Gideon Welles: Tuesday, May 12, 1863

We have information that Stonewall Jackson, one of the best generals in the Rebel, and, in some respects, perhaps in either, service, is dead. One cannot but lament the death of such a man, in such a cause too. He was fanatically earnest, and a Christian but bigoted soldier.

A Mr. Prentiss has presented a long document to the President for the relief of certain parties who owned the John Gilpin, a vessel loaded with cotton, and captured and condemned as good prize. There has been a good deal of outside engineering in this case. Chase thought if the parties were loyal it was a hard case. I said all such losses were hard, and asked whether it was hardest for the wealthy, loyal owners, who undertook to run the blockade with their cotton, or the brave and loyal sailors who made the capture and were by law entitled to the avails, to be deprived. I requested him to say which of these parties should be the losers. He did not answer. I added this was another of those cases that belonged to the courts exclusively, with which the Executive ought not to interfere. All finally acquiesced in this view.

This case has once before been pressed upon the President. Senator Foot of Vermont appeared with Mr. Prentiss, and the President then sent for me to ascertain its merits. I believe I fully satisfied him at that time, but his sympathies have again been appealed to by one side.

Mr. Seward came to my house last evening and read a confidential dispatch from Earl Russell to Lord Lyons, relative to threatened difficulties with England and the unpleasant condition of affairs between the two countries. He asked if anything could be done with Wilkes, whom he has hitherto favored, but against whom the Englishmen, without any sufficient cause, are highly incensed. I told him he might be transferred to the Pacific, which is as honorable but a less active command; that he had favored Wilkes, who was not one of the most comfortable officers for the Navy Department. I was free to say, however, I had seen nothing in his conduct thus far, in his present command, towards the English deserving of censure, and that the irritation and prejudice against him were unworthy, yet under the peculiar condition of things, it would perhaps be well to make this concession. I read to him an extract from a confidential letter of J. M. Forbes, now in England, a most earnest and sincere Union man, urging that W. should be withdrawn, and quoting the private remarks of Mr. Cobden to that effect. I had read the same extract to the President last Friday evening, Mr. Sumner being present. He (Sumner) remarked it was singular, but that he had called on the President to read to him a letter which he had just received from the Duke of Argyle, in which he advised that very change. This letter Sumner has since read to me. It is replete with good sense and good feeling.

I have to-day taken preliminary steps to transfer Wilkes and to give Bell command in the West Indies. It will not surprise me if this, besides angering Wilkes, gives public discontent. His strange course in taking Slidell and Mason from the Trent was popular, and is remembered with gratitude by the people, who are not aware his work was but half done, and that, by not bringing in the Trent as prize, he put himself and the country in the wrong. Seward at first approved the course of Wilkes in capturing Slidell and Mason, and added to my embarrassment in so disposing of the question as not to create discontent by rebuking Wilkes for what the country approved. But when, under British menace, Seward changed his position, he took my position, and the country gave him great credit for what was really my act and the undoubted law of the case. My letter congratulating Wilkes on the capture of the Rebel enemies was particularly guarded and warned him and naval officers against a similar offense. The letter was acceptable to all parties, — the Administration, the country, and even Wilkes was contented.

It is best under the circumstances that Wilkes should be withdrawn from the West Indies, where he was sent by Seward's special request, unless, as he says, we are ready for a war with England. I sometimes think that is not the worst alternative, she behaves so badly.

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 297-9

Diary of Gideon Welles: Monday, May 11, 1863

The President sent a note to my house early this morning, requesting me to call at the Executive Mansion on my way to the Department. When there he took from a drawer two dispatches written by the Secretary of State to Lord Lyons, in relation to prize captures. As they had reference to naval matters, he wished my views in regard to them and the subject-matter generally. I told him these dispatches were not particularly objectionable, but that Mr. Seward in these matters seemed not to have a correct apprehension of the duties and rights of the Executive and other Departments of the Government. There were, however, in this correspondence allusions to violations of international law and of instructions which were within his province, and which it might be well to correct; but as a general thing it would be better that the Secretary of State and the Executive should not, unless necessary, interfere in these matters, but leave them where they properly and legally belonged, with the judiciary. [I said] that Lord Lyons would present these demands or claims as long as the Executive would give them consideration, — acquiesced, responded, and assumed to grant relief, — but that it was wholly improper, and would, besides being irregular, cause him and also the State and Navy Departments great labor which does not belong to either. The President said he could see I was right, but that in this instance, perhaps, it would be best, if I did not seriously object, that these dispatches should go on; but he wished me to see them.

When I got to the Department, I found a letter from Mr. Seward, inclosing one from Lord Lyons stating that complaint had been made to his Government that passengers on the Peterhoff had been imprisoned and detained, and were entitled to damages. As the opportunity was a good one, I improved it to communicate to him in writing, what I have repeatedly done in conversation, that in the present state of the proceedings there should be no interference on his part, that these are matters for adjudication by the courts rather than for diplomacy or Executive action, and until the judicial power is exhausted, it is not advisable for the Departments to interfere, etc. The letter was not finished in season to be copied to-day, but I will get it to him to-morrow, I hope in season for him to read before getting off his dispatches.

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 296-7

Diary of Gideon Welles: Thursday, April 30, 1863

To-day has been designated for a National Fast. I listened to a patriotic Christian discourse from my pastor, Mr. Pyne.

Had a long, studied, complaining letter from Admiral Du Pont, of some twenty pages, in explanation and refutation of a letter in the Baltimore American, which criticizes and censures his conduct at Charleston. The dispatch is no credit to Du Pont, who could be better employed. He is evidently thinking much more of Du Pont than of the service or the country. I fear he can be no longer useful in his present command, and am mortified and vexed that I did not earlier detect his vanity and weakness. They have lost us the opportunity to take Charleston, which a man of more daring energy and who had not a distinguished name to nurse and take care of would have improved. All Du Pont's letters since the 8th show that he had no heart, no confidence, no zeal in his work; that he went into the fight with a predetermined conviction it would not be a success. He is prejudiced against the monitor class of vessels, and would attribute his failure to them, but it is evident he has no taste for rough, close fighting.

Senator Sumner called on me this P.M. in relation to the coast defense of Massachusetts. I received a letter from Governor Andrew this A.M. on the same subject. The President had also been to see me in regard to it.

After disposing of that question, Sumner related an interesting conversation which he had last evening with Lord Lyons at Tassara's, the Spanish Minister. I was an hour or two at Tassara's party, in the early part of the evening, and observed S. and Lord L. in earnest conversation. Sumner says their whole talk was on the subject of the mails on captured vessels. He opened the subject by regretting that in the peculiar condition of our affairs, Lord Lyons should have made a demand that could not be yielded without national dishonor; said that the question was one of judicature rather than diplomacy. Lord Lyons disavowed ever having made a demand; said he was cautious and careful in all his transactions with Mr. Seward, that he made it a point to reduce all matters with Seward of a public nature to writing, that he had done so in regard to the mail of the Peterhoff, and studiously avoided any demand. He authorized Sumner, who is Chairman of Foreign Relations, to see all his letters in relation to the mails, etc., etc.

To-day Sumner saw the President and repeated to him this conversation, Lord Lyons having authorized him to do so. The President, he says, seemed astounded, and after some general conversation on the subject, said in his emphatic way, “I shall have to cut this knot.”

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 288-9

Diary of Gideon Welles: Tuesday, April 21, 1863

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 on Charleston, — 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 preventing England and France from 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 the Trent, a mail packet, of the necessity of keeping on the best terms we could with England. 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 of England, 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. The Trent case he did not consider analogous in several respects. I had said in reply to Seward that the Trent was 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 from England.

The two letters of Seward and myself which brought about this interview, of the 18th and 20th instant respectively, are as follows: —

• Gideon Welles to William H. Seward, April 18, 1863
• William H. Seward to Gideon Welles, April 20, 1863

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 277-80

William H. Seward to Gideon Welles, April 20, 1863

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 the U. 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.

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 282-3

Gideon Welles to William H. Seward, April 18, 1863

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

Gideon Welles to William H. Seward, April 13, 1863

Navy Department,

13 April, 1863.

Sir,

I have the honor to acknowledge the receipt of your communication of the 11th inst., enclosing a note of Lord Lyons and correspondence relative to the mail of the Peterhoff.

His Lordship complains that the Peterhoff's mails were dealt with, “both at Key West and at New York in a manner which is not in accordance with the views of the Government of the United States, as stated in your letter to the Secretary of the Navy, of the 31st Oct. last.”

Acting Rear Admiral Bailey, an extract from whose letter is enclosed, in the correspondence transmitted on the 14th ulto., gave Her Majesty's Consul at Key West an authenticated copy of the law of the United States, and of the instructions based thereon, on the subject of papers which strictly belong to the captured vessels and the mails.

By special direction of the President, unusual courtesy and concession were made to neutrals in the instructions of the 18th August last to Naval Officers, who themselves were restricted and prohibited from examining or breaking the seals of the mail bags, parcels, &c. which they might find on board of captured vessels, under any pretext, but were authorized at their discretion to deliver them to the Consul, commanding naval officer, or the legation of the foreign government to be opened, upon the understanding that whatever is contraband, or important as evidence concerning the character of a captured vessel, will be remitted to the prize court, &c.

On the 31st of October last, I had the honor to receive from you a note suggesting the expediency of instructing naval officers that, in case of capture of merchant vessels suspected or found to be vessels of insurgents, or contraband, the public mails of every friendly or neutral power, duly certified or authenticated as such, shall not be searched or opened, but be put as speedily as may be convenient on the way to their designated destination. As I did not concur in the propriety or “expediency” of issuing instructions so manifestly in conflict with all usage and practice, and the law itself, and so detrimental to the legal rights of captors, who would thereby be frequently deprived of the best, if not the only, evidence that would insure condemnation of the captured vessel, no action was taken on the suggestions of the letter of the 31st October, as Lord Lyons seems erroneously to have supposed.

In the only brief conversation that I ever remember to have had with you, I expressed my opinion that we had in the instructions of the 18th of August gone to the utmost justifiable limit on this subject. The idea that our Naval officers should be compelled to forward the mails found on board the vessels of the insurgents — that foreign officials would have the sanction of this government in confiding their mails to blockade runners and vessels contraband, and that without judicial or other investigation, the officers of our service should hasten such mails, without examination, to their destination, was so repugnant to my own convictions that I came to the conclusion it was only a passing suggestion, and the subject was therefore dropped. Until the receipt of your note of Saturday, I was not aware that Lord Lyons was cognizant such a note had been written.

Acting Rear Admiral Bailey has acted strictly in accordance with the law and his instructions in the matter of the Peterhoff’s mail. The dispatch of Lord Lyons is herewith returned.

I am, respectfully,

Your Obd't 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. 270-2

Diary of Gideon Welles: Monday, April 13, 1863

Wrote Seward a letter on the subject of captured mails, growing out of the prize Peterhoff. On the 18th of August last I prepared a set of instructions embracing the mails, on which Seward had unwittingly got committed. The President requested that this should be done in conformity with certain arrangements which Seward had made with the foreign ministers. I objected that the instructions which Mr. Seward had prepared in consultation with the foreigners were unjust to ourselves and contrary to usage and to law, but to get clear of the difficulty they were so far modified as to not directly violate the statutes, though there remained something invidious towards naval officers which I did not like. The budget of concessions was, indeed, wholly against ourselves, and the covenants were made without any accurate knowledge on the part of the Secretary of State when they were given of what he was yielding. But the whole, in the shape in which the instructions were finally put, passed off very well. Ultimately, however, the circular containing among other matters these instructions by some instrumentality got into the papers, and the concessions were, even after they were cut down, so great that the Englishmen complimented the Secretary of State for his liberal views. The incense was so pleasant that Mr. Seward on the 30th of October wrote me a supercilious letter stating it was expedient our naval officers should forward the mails captured on blockade-runners, etc., to their destination as speedily as possible, without their being searched or opened. The tone and manner of the letter were supercilious and offensive, the concession disreputable and unwarrantable, the surrender of our indisputable rights disgraceful, and the whole thing unstatesmanlike and illegal, unjust to the Navy and the country, and discourteous to the Secretary of the Navy and the President, who had not been consulted. I said to Mr. Seward at the time, last November, that the circular of the 18th of August had gone far enough, and was yielding more than was authorized, except by legislation or treaty. He said his object was to keep the peace, to soothe and calm the English and French for a few weeks.

Lord Lyons now writes very adroitly that the seizure of the Peterhoff mails was in violation of the order of our Government as “communicated to the Secretary of the Navy on the 31st of October.” He makes no claim for surrender by right, or usage, or the law of nations, but it was by the order of our Government to the Secretary of the Navy. No such order was ever given by the Government. None could be given but by law of Congress. The Secretary of the Navy does not receive orders from the Secretary of State, and though I doubt not Mr. Seward in an excitable and inflated moment promised and penned his absurd note, which he called an order when conversing with them, — gave it to them as such, — yet I never deemed it of sufficient consequence to even answer or notice further than in a conversation to tell him it was illegal.

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 269-70

Diary of Gideon Welles: Saturday, April 11, 1863

The President returned from Headquarters of the Army and sent for me this A.M. Seward, Chase, Stanton, and Halleck were present, and Fox came in also. He gave particulars so far as he had collected them, not differing essentially from ours.

An army dispatch received this P.M. from Fortress Monroe says the Flambeau has arrived in Hampton Roads from Charleston; that our vessels experienced a repulse; some of the monitors were injured. The information is as confused and indefinite as the Rebel statements. Telegraphed to Admiral Lee to send the Flambeau to Washington. Let us have the dispatches.

Seward is in great trouble about the mail of the Peterhoff, a captured blockade-runner. Wants the mail given up. Says the instructions which he prepared insured the inviolability and security of the mails. I told him he had no authority to prepare such instructions, that the law was paramount, and that anything which he proposed in opposition to and disregarding the law was not observed.

He called at my house this evening with a letter from Lord Lyons inclosing dispatches from Archibald, English Consul at New York. Wanted me to send, and order the mail to be immediately given up and sent forward. I declined. Told him the mail was properly and legally in the custody of the court and beyond Executive control; assured him there would be no serious damage from delay if the mail was finally surrendered, but I was inclined to believe the sensitiveness of both Lord Lyons and Archibald had its origin in the fact that the mail contained matter which would condemn the vessel. “But,” said Seward, “mails are sacred; they are an institution.” I replied that would do for peace but not for war; that he was clothed with no authority to concede the surrender of the mail; that by both statute and international law they must go to the court; that if his arrangement, of which I knew nothing, meant anything, the most that could be conceded or negotiated would be to mails on regular recognized neutral packets and not to blockade-runners and irregular vessels with contraband like the Peterhoff. He dwelt on an arrangement entered into between himself and the British Legation, and the difficulty which would follow a breach on our part. I inquired if he had any authority to make an arrangement that was in conflict with the express provisions of the statutes, — whether it was a treaty arrangement confirmed by the Senate. Told him the law and the courts must govern in this matter. The Secretary of State and the Executive were powerless. We could not interfere.

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 266-7