No. 148.
Mr. Fish to Mr. Bancroft.
Sir: The refusal of the German authorities at the investment of Paris to allow the United States minister there to send a messenger to London with a pouch, with dispatches from his legation, unless the contents of the pouch should be unsealed, must be regarded as an uncourteous proceeding. which cannot be acquiesced in by this Government. Blockade by both sea and land is a military measure for the reduction of an enemy’s fortress, by preventing the access of relief from without, and by compelling the troops and inhabitants to surrender for want of supplies. When, however, the blockaded fortress happens to be the capital of the country where the diplomatic representative of a neutral state resides, has the blockading force a right to cut him off from all intercourse by letter with the outer world, and even with his own government? No such right is either expressly recognized by public law, or is even alluded to in any treatise on the subject. The right of legation, however, is fully acknowledged, and, as incident to that right, the privilege of sending and receiving messages. This privilege is acknowledged in unqualified terms. There is no exception or reservation looking to the possibility of blockade of a capital by a hostile force. Although such blockades are not of frequent occurrence, their liability to happen must have presented itself to the minds of the writers on public law, and, if they had suppossed that the right of sending messengers was merged in or subordinate to the belligerent rights of the assailant, they certainly would have said so. Indeed, the rights of legation under such circumstances must be regarded as paramount to any belligerent right. They ought not to be questioned or curtailed, unless the attacking party has good reason to believe that they will be abused, or unless some military necessity, which upon proper statement must be regarded as obvious, shall require the curtailment.
The condition upon which the sending of messengers was offered was humiliating, and could not be accepted by any diplomatic agent with any self-respect. Correspondence between those officers and their governments is always more or less confidential, and it is unreasonable to suppose that its inspection by the blockading force should be permitted. Indeed, the requirement of such a condition must be regarded as tantamount [Page 196] to an imputation both upon the integrity of the minister and the neutrality of his government.
You will consequently remonstrate against the exercise of authority adverted to as being contrary to that paramount right of legation which every independent nation ought to enjoy, and in which all are equally interested.
Prussia has heretofore been a leading champion of the rights of neutrals on the ocean. She has, even during the existing war, made acknowledged sacrifices to her faith and consistency in that respect. The course of her arms on land does not seem to warrant or require any enforcement of extreme belligerent claims in that quarter as against neutrals.
An analogous privilege of legation was upon several occasions successfully asserted by this Government, during the late war between Brazil and her allies on the one side, and Paraguay on the other. Mr. Washburn, the United States minister to Paraguay, applied for a permit to take him through the hostile lines to Asuncion, his destination. The applicaiion, though at first rejected, was ultimately granted. Application was subsequently made for leave for General McMahon, his successor, to pass the same lines, and for the vessel which carried him to bring back Mr. Washburne. This, also, though at first refused, was ultimately granted, There is reason to believe that the course taken by this Government on those occasions was approved by other governments. It is probable that other governments would also sanction the claim of the United States in this case.