No. 52.
Mr. E. B. Washburne to Mr. Fish.
No. 238.]
Legation of the United
States, Paris, July 29, 1870. (Received Aug.
11.)
Referring to my dispatch of the 22d instant, numbered 231, and to the
reference therein to the question of the departure of the subjects of
[Page 81]
the North German
Confederation from French territory, I now have the honor to send you
the continuation of the correspondence on that subject. It consists
of—
First. The reply of the Duke de Gramont to my letter of the 21st instant,
marked No. 1, and
Second. My rejoinder to his excellency’s letter, dated the 25th instant,
and marked No. 2.
It is difficult for me to determine the precise nature and extent of the
functions devolving upon me in virtue of the protection of the subjects
of the North German Confederation, which I have assumed by your
direction and with the assent of the French government. I cannot find
that any particular rule has been laid down to govern under such
circumstances, and I would be thankful if you could make any suggestions
in that regard. But it must be presumed that I am to extend my good
offices in every proper manner to such of the North German subjects as
may call upon me for advice or protection, but guarding myself carefully
against any act which might be construed as inconsistent with the
neutral position I occupy. In regard, however, to the doctrines
submitted by the Duke de Gramont, in his letter to me of the 23d
instant, touching the departure of North German subjects from French
territory, I considered them as differing so widely from the
well-established principles of public law, at least as understood and
acted upon in our own country, that I could not give them even an
implied assent. Hence my letter to the Duke de Gramont of the 25th
instant, to which I have already made reference herein, and which I
trust may meet with your approbation.
No. 1.
[Translation.]
The Duke de Gramont to Mr. E. B. Washburne.
Mr. Minister: You have done me the honor to
inform me that a large number of persons belonging to the North
German Confederation have asked your good offices to enable them to
return to their country, passing through Belgian territory, and you
are good enough to ask me at the same time if the passports given or
signed by you would constitute sufficient evidence to assure
security in the journey to these persons.
As you have seen, Mr. Minister, by the notice inserted in the Journal
Officiel of the 20th of this month, the government of the Emperor
has decided that German citizens will be at liberty to continue
their residence in France, and that they will enjoy the protection
of our laws as before the war, as long as their conduct does not
give any legitimate cause of complaint. Nothing is altered in the
design of his Majesty in this regard.
In regard to that which now concerns the North Germans who desire to
leave the territory of the empire, in order to return into their own
country, the government of the Emperor is disposed to accede to the
desires of those individuals who are past the age of active military
service, reserving the right to examine each particular case as it
is presented. Regarding the national confederates who do not find
themselves in this situation, and who would like to leave France to
respond to the summons of their government which calls them lawfully
to return to bear arms against us, the government of the Emperor
will not allow their departure. In adopting this line of conduct we
have the desire to reconcile, in an equitable degree, the
considerations due to respectable private interests with the
legitimate exigencies of a state of war. You will please to observe,
sir, that the confederate Prussians, whose departure from our
territory we prevent for the moment, can with difficulty invoke in
their favor the general principles of the law of nations, or the
doctrine of the text-writers on this subject. In fact, the German
subjects, whom the decision which I have the honor to inform you of
concerns, cannot legally be considered as simply private
individuals, nor be assimilated to merchants; they are incontestibly
persons bound to military service as soldiers of the active army or
of the landwehr. Now no rule of international law obliges a
belligerent to allow to
[Page 82]
depart from his territory subjects of the enemy, who, from the day
of their return to their own country, will be enrolled in the ranks
to take part in the hostilities. I will add, in conclusion, that
except the obstacle put in the way of their departure from France,
the German citizens in question will enjoy the most complete liberty
to attend to their business, to carry on their commerce, their
industries, or their professions; in other words they will be
precisely on the same footing as those of their compatriots
mentioned in the official note of the 20th of this month.
Accept the assurances of the high consideration with which I have the
honor to be, sir, your very humble and obedient servant,
Mr. Washburne,
Minister of the United States.
No. 2.
Mr. E. B. Washburne to the Duke de Gramont.
Legation of the United
States, Paris,
July 25,
1870.
Sir: I have the honor to acknowledge the
receipt of your excellency’s communication of the 23d, in reply to
mine of the 21st, asking information in behalf of North German
confederate subjects desiring to quit French territory.
Your excellency’s communication seems to assume the probability that
more or less of these applicants are desirous of quitting France to
answer to the summons of their own governmont to bear arms against
France, under the provisions of the laws of the North German
confederation. Without undertaking to contest the exactness of this
assumption, or without undertaking to inform your excellency whether
any or what portion of these applicants are to be found outside of
the present limits of liability to bear arms in the ranks of the
confederation in case of their return to North Germany, matters upon
which I have not particularly informed myself, you will allow me to
remark, in loyal fulfillment of the function that has been confided
to me in this regard, that I was not prepared to learn that the
exception now proposed to be made by the government of his Majesty
to the disadvantage of a portion, perhaps the largest portion, of
the applicants would be insisted on, viz., that a liability to
perform military service in the home army constitutes a sufficient
reason for the refusal of the ordinary privilege of quitting foreign
belligerent territory, on the outbreak of a war between that foreign
government and the home nation. If the exception stated by your
excellency is to constitute a settled principle of international
comity, for I at once concede that there is no question of absolute right, but only of comity or social
civilization, involved in the decision in the case of these
applicants, then I beg leave to suggest that the exception becomes
the rule, and that the privilege of returning to one’s own country
at the outbreak of a war becomes a mere nullity; since, of what male
subject, of whatever age or of whatever condition of life, may it
not be affirmed that at some time or under some circumstances he may
be compelled to join the ranks of his country’s armies in her
defense; say in some sudden or extreme emergency? And is a
distinction to be made between those countries which limit the
conscription of their soldiers to a very restricted section of their
population, and those governments which, like Prussia, the United
States, and perhaps Switzerland, being much the larger proportion of
their citizens under the reach of the law of military service? Will
your excellency allow me respectfully to suggest that in the limited
examination which I have been able to give to this subject, I find
the line of exception now suggested to his Majesty’s government to
the general concession usually made in favor of foreign subjects
wishing to quit belligerent territory an entirely new one. Even in
feudal times, when the liability to do military duty to the
sovereign Lord or king was held in much greater strictness than at
the present day, I do not find that the point was insisted upon of
the returning liege being liable to become a hostile soldier.
Certainly, under my own Government, from which perhaps I borrow my
prepossessions; the idea of any such distinction seems to have been
long since discarded. For as early as 1798, and when hostilities
between the United States and France seemed imminent, probably I may
say in reference to the departure of French subjects from United
States territory, my own Government, by formal statute, declared
that subjects of the hostile nation, who might wish to quit the
United States on the outbreak of future hostilities, should be
allowed “such reasonable time as may be consistent with the public
safety, and according to the dictates of humanity and national
hospitality,” and “for the recovery, disposal, and removal of their
goods and effects, and for their departure.” [Laws of the United
States, vol. 1, page 577.] Thus your excellency will observe that
the privilege is granted in the most unrestricted terms, without
allusion to a liability to render military aid to an enemy. I need
not add that the same principle is incorporated
[Page 83]
into various subsisting treaties of the
United States, and that the highest American authority on public
law, Chancellor Kent, considers the principle to have become an
established formula of modem public law. This learned publicist, I
may perhaps be permitted to add, quotes various continental
publicists, including Emerigon and Vattel, as upholding and
ratifying the same doctrine. [Kent’s
Commentaries, vol. 1, pages 56–59.]
I trust that these suggestions of a liberal construction of the
rights of departing belligerents will not be deemed inappropriate or
untimely on my part, since your excellency does not apprise me that
any public notice of the qualified restraints foreshadowed in your
communication have yet been definitely made public, and since from
that liberal concession in favor of belligerent residents who do not
choose to depart, which his Majesty’s government has published, and
to which your excellency has alluded, I deduce an anxious desire on
the part of that government to conform as much as possible to the
mildest interpretation of the hardships of the laws of war.
It only remains for me to say that if his Majesty’s government has
definitely decided the question of the privilege of departing
subjects of the North German Confederation, in the limited sense
which your excellency’s communication seems to imply, it would
relieve me of trouble in the way of answering personal applications,
if the French government should deem it proper to make a public
announcement of its determination upon that point, or to advise me
by a personal communication. I should also be glad to be informed if
my own intervention or agency can be of any avail in enabling his
Majesty’s officials to judge of the fitness of granting the
departure of those particular applicants who may happen to be
without the limits of the age of military service in the North
German Confederation army, and as to which you intimate that the
French government reserves to itself the right of judging each case
as it shall arise. I take the present occasion, &c., &c.,
&c.
His Excellency the Duke de Gramont,
&c., &c.
