William L. Dayton to M. Drouyn de l’Huys, November 6, 1863

Mr. Dayton to Mr. Drouyn de l’Huys.

Monsieur: A copy of the communication made by the French and British governments to that of the United States at the commencement of the Crimean war on the subject of neutral rights and obligations, and for which the clerks of your office have, I understand, searched in vain, I find printed in the British parliamentary papers of 1856, among those entitled “Papers relative to recruiting in the United States,” (page 236.) It is likewise quoted in a note to the sixth edition of Wheaton’s Law of Nations, printed in 1856, (page 435.) A copy of that communication, for the satisfaction of your excellency, is hereunto attached. Mr. Wheaton, after quoting the more important parts of this despatch, adds that “the Comte de Sartiges addressed the Secretary of State on the 28th April, 1854, to the same effect on the part of the French government.” Mr. Marcy, the United States Secretary of State, in his answer, which was the same to both governments, on the day of the date of the last note, remarks that “the laws of this country impose severe restrictions not only upon its own citizens, but upon all persons who may be residents within any of the territories of the United States, against equipping privateers, receiving commissions, or enlisting men therein for the purpose of taking part in any foreign war;” and he might have added that the same statute equally prohibits enlisting men for this purpose, whether as soldiers, marines, or seamen, on board of any vessel-of-war, letter of marque, or privateer. I do not stop to remind your excellency how fully the United States met the wishes of France and England during the existence of the Crimean war, although its conduct was such that I believe no complaint was made by either party which was not subsequently withdrawn as groundless. The despatch above referred to, after apprising us that the governments of England and France had resolved not to issue letters of marque during that war, proceeds to express the hope that “the government of the United States will, in the spirit of just reciprocity, give orders that no privateer under Russian colors shall be equipped, or victualled, or admitted with its prizes into the ports of the United States; and also that the citizens of the United States shall rigorously abstain from taking part in armaments of this nature, or in any other measure opposed to the duties of a strict neutrality.” I now beg to submit to your excellency whether the reception of the Florida in the port of Brest, the repairs permitted, the supplies furnished, and the permission to renew her crew to the extent of the seventy-five men, whose time it is said has expired, are not violations of the spirit of that rule of action commended for acceptance in this despatch to the government of the United States.

The recent arrival at Cherbourg of the Georgia, another rebel steamer of like character as the Florida, and the request of her captain, as I am informed, to be admitted into one of your dry docks to clean and examine her bottom, presents this question anew, and in a yet stronger light. It is no longer an application of necessity, but convenience. I do not forget that your excellency has informed me that France, having recognized the confederates as belligerents, must treat their vessels as ships-of-war.

It is true the Georgia, like the Florida, the Alabama, and other scourges of peaceful commerce, was born of that unhappy decree which gave the rebels, who did not own a ship-of-war or command a single port, the right of an ocean belligerent. Thus encouraged by foreign powers, they began to build and fit out in neutral ports a class of vessels constructed mainly for speed, and whose acknowledged mission is not to fight, but to rob, to burn, and to fly. Although the smoke of burning ships has everywhere marked the track of the Georgia and Florida upon the ocean, they have never sought a foe, or fired a gun against an armed enemy. To dignify such vessels with the name of ships-of-war seems to me, with deference, a misnomer. Whatever flag may float from their mast-head, or whatever power may claim to own them, their conduct stamps them as piratical. If vessels-of-war even, they would by this conduct have justly forfeited all courtesies in the ports of neutral nations. Manned by foreign seamen, armed by foreign guns, entering no home port, and waiting no judicial condemnation of prizes, they have already devastated and destroyed our commerce to an extent, as compared with their number, beyond anything known in the records of privateering.

The origin and history of the Florida are familiar to your excellency; that of the Georgia, which has just arrived, may be less known. This last-named steamer was built at a port in Scotland, and armed by British guns while anchored near the French coast, in French waters. The crew was first shipped for this vessel under the name of the Japan, bound for Singapore, Hong Kong, or other ports in the China seas. She sailed from Greenock, Scotland, under British colors, for the French port of Ushant, where she was joined by the Alar, another small British steamer. To these vessels, your excellency will recollect, I called your attention at the time. They came to anchor in a small bay on the French coast, and within, as is alleged, a stone’s throw of the shore. The guns and ammunition were there shifted from the Alar to the Japan; the men were then called aft and informed that the voyage to Singapore was abandoned, and that the vessel would no more be called the Japan, but the Virginia, a confederate war steamer; and that the captain was going to burn and destroy all North American vessels. New shipping articles were then produced, and, after reading them, the crew were called upon to sign, and a majority of them did so. The confederate flag, so called, was then raised, and the Japan, under the name of the Virginia, since changed to the Georgia, commenced her career. I have papers and affidavits in my possession proving the facts herein stated, which, if important in the views of your excelleecy, I shall be happy to submit. This vessel was, therefore, in fact, armed, and its crew enlisted within the jurisdiction of France. It is true that this government has recognized the south as belligerents, but it has at no time, so far as I know, recognized as lawful the conduct of these marauders, who constitute themselves sole judges of what is and what is not lawful prize, and, as a rule of action, destroy it without judicial condemnation. To accept the excuse that they have no port into which they can enter, by reason of our blockade, is to make their acknowledged weakness a source of strength. No such exception can, I think, fairly exempt them from the ordinary rules of maritime law.

The spirit of the despatch before mentioned, in which the “allied governments” adopt for themselves, and commend to us, the rule that no privateer shall be equipped, or victualled, or admitted with its prizes into our ports, seems to me to conflict much with the treatment extended to vessels like the Florida and Georgia. If they, while yet reeking with the smoke of their burned victims, (as was the case of the Florida, which burned the Anglo-Saxon while on her way into Brest,) shall be received and assisted because they carry one form of paper instead of another, (a commission instead of a letter of marque,) although both are issued by the same authority, it seems to me that the spirit is sacrificed to the letter—the substance to the form.

If the convention of Paris of 1856, abolishing privateering among those states becoming parties to it, goes no further than this, it amounts to little— binding to nothing except to the form of the commission, while the responsibility of the government for the conduct of the ship remains the same, whether it sail as a vessel-of-war proper, or as a letter of marque.

But I can scarcely believe that the “allied governments,” after their appeal to us at the commencement of the Crimean war, would have thought our duty as neutrals fairly discharged if, under like circumstances, we had permitted our ports to be used by vessels so built, armed, manned, and conducted, as places of refuge, or for renewing their crews and for general repairs. Yet that case would not have been so strong as the present, for Russia is a government acknowledged by all, and responsible in its nationality for wrongs, while the confederates have no such responsibility whatever.

In closing this communication, it gives me great pleasure to acknowledge the promptitude and care with which the French government has heretofore acted upon all questions connected with the building, equipping, or fitting out of ships in their ports in aid of the south. It has even manifested a willingness to maintain, in good faith, the neutrality of its ports and harbors.

Accept, sir, the assurances of high consideration with which I have the honor to be your excellency’s very obedient servant,