No. 149.
Mr. Fish to Baron Gerolt.
Department of State, Washington, November 21, 1870.
Sir: The undersigned, Secretary of State of
the United States, duly received the note of the 4th instant, with
the accompanying documents, addressed to him by Baron Gerolt, envoy
extraordinary and minister plenipotentiary of the North German Union
relative to intercourse between the diplomatic representatives in
Paris of the governments of neutral states and their respective
governments. In that communication it is assumed that Paris being in
a state of seige by the German forces, the latter have a belligerent
right, under the public law, to cut off all intercourse between the
diplomatic representatives of foreign powers there and their
governments at home, or if such intercourse should be allowed at
all, that the besieging force may prescribe the conditions upon
which it shall be permitted. The right seems farther to be claimed
upon the alleged impropriety of diplomatic agents continuing to
reside in a beleaguered city which contains persons in authority
whose title thereto has not been recognized by the assailant.
The undersigned, after a careful consideration of the subject, and
with every disposition to acknowledge the just and necessary
belligerent rights of the blockading force, cannot acquiesce in the
pretension set up on behalf of that force. It is true, that when
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such a force invests a
fortified place with a view to its reduction, one of the means
usually relied upon for that purpose is the interruption of ordinary
communication by messengers or by letters. This is acknowledged to
be not only a belligerent right, but also one incident to the actual
sovereignty over the enemy’s territory occupied by the assailant
adjacent to the blockaded place. Paris, however, is the capital of
France. There the diplomatic representatives of neutral states had
their official residence prior to the investment. If they think
proper to stay there while it lasts, they must expect to put up with
the inconveniences necessarily incident to their choice. Among
these, however, the stopping of communication with their governments
cannot be recognized. The right of embassy to a belligerent state is
one which it is both the duty and the interest of its enemies to
acknowledge, and to permit the exercise of, in every usual or proper
way. If this right should be denied or unduly curtailed, wars might
be indefinitely prolonged, and general peace would be
impracticable.
The privilege of embassy necessarily carries with it that of
employing messengers between the embassy and its government. This is
a privilege universally recognized by publicists. There is no
exception or reservation made for the case of an embassy having its
abode in a blockaded place. Indeed, the denial of the right of
correspondence between a diplomatic agent in such a place and his
government seems tantamount to insisting that he cannot elect to be
a neutral, but must be regarded as an adversary if he continues to
stay there, especially when the legitimacy of the authority of those
directing the resistance is denied by the other assailant.
The opposite course, which it has suited the convenience of some
neutral government to adopt, is obviously liable to be construed,
partly, at least, the occasion of withholding the privilege of
correspondence. Should this be a correct view of the case, no
independent state claiming to be a free agent in all things could in
self-respect acquiesce in a proceeding actuated by such a motive.
The undersigned does not charge the government of the North German
Union with being so actuated, but deems himself warranted in thus
referring to the point as it is adverted to by the representative of
that government both at Berlin and before Paris.
The undersigned is consequently directed to claim that the right of
correspondence between the representatives of neutral powers at
Paris and their governments is a right sanctioned by public law
which cannot justly be withheld without assigning other reasons
therefor than those which have hitherto been advanced. The burden of
a proof of the sufficiency of those reasons, in furtherance of the
belligerent rights of the assailant, must be borne by him.
While, however, the undersigned is directed to claim the right as due
to all neutrals, he will not omit to acknowledge the partial
exception made in favor of the minister of the United States for the
reasons assigned.
The undersigned avails himself of this occasion to renew to Baron
Gerolt the assurance of his very high consideration.
