§ EARL RUSSELLMy Lords, you will expect me, no doubt, to answer the questions which were put to me on Friday night; but what I have to say will, I think, convince your Lordships it is not desirable that at this time I should state the opinion which I have received from the Law Officers of the Crown. On referring to the papers already presented to Parliament—to the Parliamentary Papers, "North America, No 5"—your Lordships will see that a good deal of correspondence passed subsequently to the 8th of August. The letter written on the 8th of August is, in fact, continued by that correspondence. I wrote afterwards to Mr. Stuart, on the 27th August, to the following effect:— 764
I have at present only to observe that the orders for the future guidance of the United States officers, as stated in Mr. Seward's letter to the Secretary of the Navy of the 8th inst., appear to be satisfactory, and ought to suffice.And on the 10th of October I made a further communication to the same gentleman. It is not necessary to trouble your Lordships with the whole of the last mentioned despatch. Part of it has already been presented to Parliament; but the despatch, after the passages published in the printed papers, goes on to say—Her Majesty's Government are glad to find from your despatch of the 12th of August last that the orders originally given to American cruisers in regard to interference with neutral vessels have been rescinded. If these orders had been sanctioned and continued in force by the Government of the United States, they would have called for prompt and firm remonstrance on the part of Her Majesty's Government, and it will be proper that you should intimate to Mr. Seward, while expressing the satisfaction of Her Majesty's Government at their revocation, that Her Majesty's Government are glad to be thereby spared from the necessity of stating their decided objections to their tenour. You will say that to order vessels, though apparently and primâ facie carrying on a lawful trade, to be systematically seized on the high seas, without any preliminary search, or without the discovery during such search of any strong evidence of suspicion against such vessels, would be to subject the mercantile marine of neutrals to a system of oppression and annoyance which no neutral Government could be expected to tolerate. The unjust seizure under urgent circumstances of a neutral vessel may be considered as one of the occasional burdens which a state of war may impose upon a neutral, and it may be partially compensated by the condemnation of the captor in costs or in costs and damages; but the indiscriminate and general seizure of merchant vessels, without previous search, converts an occasional exception into an intolerable rule. The question which has arisen in this case as to the seizure of Her Majesty's mails on board the Adela, while it forms a new and very important clement in this case, deserving very grave consideration, raises a point of some delicacy and difficulty. Her Majesty's Government cannot doubt that the Government of the United States are prepared to concede that all-mail bags, clearly certified to be such, shall be exempt from seizure or visitation, and that some arrangement shall be made for immediately forwarding such bags to their destination in the event of the ship which carries them being detained. If this is done, the necessity for discussing the claim, as a matter of strict right, that Her Majesty's mails on board a private vessel should be exempted from visitation or detention, might be avoided; and it is therefore desirable that you should ascertain from Mr. Seward whether the Government of the United States admits the principle that Her Majesty's mail-bags shall neither be searched nor detained.On the 4th November, Mr. Stuart wrote to say that he had read it to Mr. Seward, who was ready to admit the principle therein laid down with regard to the seizure of 765 mail-bags. That there might be no misunderstanding on the subject, arising out of unofficial communications, it was agreed that special instructions should be issued. Accordingly, on the 31st of October, Mr. Seward addressed the following letter to Mr. Welles:—Department of State, Washington,October 31, 1862.Sir,—It is thought expedient that instructions be given to the blockading and naval officers, that in case of capture of merchant vessels suspected or found to be vessels of the insurgents or contraband, the public mails of any friendly or neutral Power, duly certified and authenticated as such, shall not be searched or opened, but be put, as speedily as may be convenient, on their way to their designated destinations. This instruction, however, will not be deemed to protect simulated mail-bags, verified by forged certificates or counterfeited seals.—I have, &c.,WILLIAM H. SEWARD.Those were the instructions given to American naval officers, and no question arose with respect to them until the other day, I have just received the account of the preliminary proceedings in connection with that transaction. On the 4th of April, Mr. Archibald, Her Majesty's Consul at New York, was summoned to attend the Prize Commission in regard to the peterhoff, which had been captured, as the House is aware, by the United States cruisers. On arriving at the office, Mr. Archibald was shown the mail-bag taken from the vessel, which was under the seal of Her Majesty's Postmaster General. Mr. Archibald protested against that seal being broken and the bag examined, and required that it should be sent forward to its destination. The United States officers, however, insisted that the bag should be opened, and that was accordingly done. The bag was found to contain several packages addressed to Matamoras. Nothing more took place on this occasion; and Mr. Archibald reported the matter to Lord Lyons. Lord Lyons immediately applied to Mr. Seward, and stated that the proceeding in question was in violation of the letter of the 31st of October, upon which he relied for the security of mails of this description certified and authenticated by Her Majesty's Postmaster General. Mr. Seward did not pay immediate attention to this remonstrance, but said the subject would require consideration. Subsequently, Mr. Archibald was again desired to attend the prize court, and was there informed by the counsel for the United States that it had been resolved to open the packages found in the mail-bag. The Prize Commissioners requested 766 Mr. Archibald to take, if he should think proper—indeed I believe, they asked him in the first instance to open—the packages, in order to ascertain what were bonâ fide letters, which should be forwarded to their destination, and what were papers referring to the cargo, which should be handed over to the prize court. Mr. Archibald, however, declined to be a party to such a course. If the court chose to order the packages to be opened, he said he would be present as a witness of the transaction, but could not approve or give any sanction to it. Upon this declaration the proceedings seem to have been suspended, and the opening of the packages was deferred. Mr. Archibald at once reported the matter to Lord Lyons. Lord Lyons went to Mr. Seward, and pointed out that, in accordance with the Order of the 31st of October, the letters ought to be replaced in the mail-bag, and forwarded to their destination. According to the latest intelligence which I have received, a telegram had been sent to the prize court, directing that the packages were not to be opened until further orders, but the Government of the United States had not come to any definite determination on the subject. These are the facts of the case as they at present stand. Seeing how very important the question is—seeing that the opinion of the Law Officers of the Crown must, of course, be very carefully weighed by Her Majesty's Government before any steps are taken—seeing that instructions will be sent out probably by the next mail, but that in the mean time fresh information may arrive which may quite alter the complexion of the affair—under these circumstances, I have to press for the indulgence of your Lordships in forbearing, for the present, to press for the production of the opinions of the Law Officers of the Crown; but to leave the question for the present in the hands of Her Majesty's Government.
THE MARQUESS OF CLANRICARDEsaid, no one could approve more than he did the discretion which the Government had exercised in postponing for the present the publication of the opinion of the Law Officers. He was also glad that the noble Earl had called attention to the agreement of the 31st of October as to the security of the mails. On the 11th of the present month the owners of the Sea Queen, in addressing an inquiry to the Government as to the amount of protection which would be afforded to the mails, referred to the dictum of an American Judge, to the effect 767 that mail letters found on board a British ship could legally be opened in order to ascertain the character of the ship. Now, seeing that by the letter of October last that contention was waived on the part of the United States Government, it would have been courteous in the noble Earl, or in the noble Lord the Postmaster General, to have stated the understanding now in force. He wished to know what steps had been taken by Her Majesty's Government to obtain correct reports of the proceedings of the American prize courts. It was clearly of great importance that they should know whether there was any conflict of law between the prize courts and the United States Government. He understood that a number of ships had been seized, some of them as far back as fifteen months ago, and had been taken into port, but had not yet been brought before the prize court. The reason of that delay was believed by the owners to be the want of evidence against the vessels; but from whatever cause it occurred it was most unjustifiable.
§ EARL RUSSELLsaid, he was not sure that complete reports of all the proceedings of the prize courts could be obtained; but he would take care to remind the British Minister in the United States of the importance of transmitting them whenever possible.