Papers Relating to the Foreign Relations of the United States, Transmitted to Congress with the Annual Message of the President, December 5, 1870
No. 63.
Mr. E. B. Washburne to Mr. Fish.
Sir: Referring to my dispatch No. 238, bearing date the 29th instant, [ultimo,] I now have the honor to inclose you herewith the reply of the Duke de Gramont to my letter to him dated the 25th ultimo, together with my rejoinder thereto.
The Duke de Gramont to Mr. E. B. Washburne.
Sir: I desired to answer sooner the letter which you did me honor to addres me the 25th ultimo, concerning the subjects of the North German Confederation recalled to their country. The necessity of consulting with my colleague, the minister of the interior, whose province it is to organize the numerous details that relate in time of war to the residence of foreigners in France, and especially to that of the subjects of the enemy’s nation, has been the only cause of this delay.
[Page 95]I am to-day able to make known to you the measures taken to assure the execution of the resolutions of the government, of which I notified you the 23d of July; but first permit me to examine briefly the observations so courteously presented in your letter cited above, on the line of conduct that the government of the Emperor has seen fit to adopt under existing circumstances, in relation to a certain class of German subjects resident in our territory at the time of the declaration of war.
It is not my intention to sift to the bottom the rights of belligerents toward the enemy’s subjects. The principle itself, in virtue of which the government of the Emperor has acted, is not to the point. You have been pleased to recognize this; but, though admitting that in strict point of view our right is not contestable, it would seem to result from your remarks that the application that we had made of it partakes of those extreme consequences of the right of war which modern ideas and the progress of civilization disavow.
We attach too much importance to the preservation of the sympathy of the great republic which you represent, not to try to correct your first impression in demonstrating that nothing in the measures adopted by the government of the Emperor is of a nature to make us incur the responsibility of a disregard of the laws of war, as they are recognized in our days.
In ancient law, as well as in ancient custom, the subjects of the enemy residing in the territory were considered as prisoners upon whom could be visited all the consequences of war.
According to the modern theory the modification of this state of things consists not in conceding to the subjects of the enemy an absolute right to leave the territory of the belligerent, but to impose upon the latter the duty of not maltreating them if it permits them to remain within its territory, and if they conduct themselves peacefully, or in case the government does not wish to keep them, to accord them a reasonable delay for leaving the country. You refer on this point to the fact that in 1798, that is to say, at a moment when hostilities appeared imminent between France and the United States, it was ordered that the subjects of the enemy who desired to leave the United States were at liberty to do so.
This objection has nothing in itself decisive, because what one law has done under certain circumstances, another law can modify, if there is occasion.
As to the passage from the celebrated juris-consult, quoted in your letter, I will first observe that Kent, according to the summary of his views, belongs very much more to the class of partisans of the rigorous doctrine; it is sufficient to remind for that in opposition to the greater part of modern writers, who maintain that war constitutes a relation between the respective states alone. Kent differs from this principle, in holding that war is also a relation between individuals, and that war once declared, the subjects of one government immediately become enemies of all the subjects of the others. It can also be said that in the passage reproduced, Kent confines himself to mentioning the opinion of Vattel without giving his own, and in calling attention in the following paragraphs to the fact that the jurisprudence of the Supreme Court of the United States has definitively pronounced itself formally in favor of the most rigorous doctrine. (Vol. I, sec. 59.)
The most accredited German authors limit themselves to demand, as an extreme favor of the belligerents, to accord to the unsuspected and peaceful subjects of the enemy authorization to continue to reside on the territory. It is thus that Hefter, professor of the University of Berlin, after having expressed this idea, that the subjects of the enemy should obtain a suitable delay for leaving the territory, adds: “Circumstances, nevertheless, may render necessary their provisional sequestration in order to prevent their making communications and carrying news or arms to the enemy.” (Le Droit International, pp. 226, 240.)
Has the government of the Emperor done anything but apply this doctrine in the most moderate manner? Has it gone beyond what the laws of legitimate defense allow? I do not think so; and I am persuaded, sir, that you will share my opinion if you will be pleased to examine in regard to whom and in what cases the measures in question have been taken. First, it has been decided in principle that all Prussian subjects whatever residing in our territory will be permitted to remain there, and there enjoy the protection that our laws grant to all foreigners who respect and submit to them.
We had no intention of adopting any other measures as regards the subjects of the enemy, when an incident, the gravity of which could not be mistaken, and to which we could not be blind without wanting in our first duties toward the country of which the defense is confided to us, occurred to awaken the attention of the minister of war.
Hardly had war been declared when we saw Prussian subjects, whose age called them to serve in the enemy’s army, gather openly at the railway station, and there, obedient to a word of command, as if there had been a sort of recruitment practiced, prepare to cross the frontier.
It was then that the government of the Emperor had to ask itself whether the favors that are consistent with a state of war could go so far as to allow our enemies freely [Page 96] to augment their military forces at the moment when the struggle was about to commence, and if there was no means of distinguishing between inoffensive persons and those whom we were liable to meet a few days later in the ranks of the combatants.
This distinction has been made as it should be, and we have beside the consciousness of having acted within the limit of our legitimate rights in that which concerns those even to whom the prohibition of exit applies. Nothing is changed from our previous resolution under the head of the security which is accorded to them if their conduct does not furnish motives, based upon complaints, and without our having so far the idea of using against them the odious treatment inflicted upon the French recently expelled from Baden territory.
To recapitulate, the following measures have been adopted regarding German subjects:
1st. The authorization to leave France will only be accorded individually to those over forty years of age.
2d. To those above that age there will be delivered by the minister of the interior a safe-conduct, which will be retained on the frontier by the agent in charge of the surveillance.
3d. The safe-conduct being retained on the frontier, will not be submitted to the visa, of foreign affairs. It is independent of the passports which the legation or the consulates of the United States may think proper to deliver to those interested, and those passports will not be subjected to the visa of the ministry of the interior nor of that of foreign affairs.
4th. In case a German subject should wish to enter or return to France, the request should be addressed direct to the ministry of foreign affairs, or by the intermediary of the diplomatic agents.
Accept the assurance of the high consideration with which I have the honor of being, sir, your very humble and very obedient servant,
Mr. E. B. Washburne to the Duke de Gramont.
Sir: I have the honor to acknowledge the receipt of your communication of the 3d instant, in which you inform me of the decision of his Majesty’s government respecting the granting permission to the subjects of the North German Confederation to quit France.
As your excellency apprises me of the decision as a definite one, it does not become me to discuss it any longer as an open question; but inasmuch as certain observations of your excellency in regard to the action of the American Government under similar circumstances, and to the opinion of one of its leading publicists upon the points involved in discussion, seem to invite, if not to require, some further notice on my part, I beg leave very briefly to say a few words in reply to those observations. I do so chiefly because I feel confident that my Government will take deep interest in the decision of the question now raised in this discussion, and because I am sure that it will be very desirous that its true position in regard to it should not be misunderstood.
Your excellency remarks, in reference to the statute of the United States of the 6th of July, 1798, which I had the honor to cite in order to show its settled practice and policy on this head, that the argument to be derived from it has “nothing decisive in it, because what one statute has ordained under certain circumstances, another statute can modify, if there is occasion so to do.” In reply to this suggestion permit me to call your excellency’s attention to the fact that the law in question has now stood on the statute-book of the United States for more than seventy years; that it has remained untouched and unchanged in the particular in question during the only foreign wars which the United States have had during that time, viz., with Great Britain in 1812, and with Mexico in 1847; and that if the United States were justly committed to that policy in 1798, when it had only a population of 3,000,000, mostly indigenous to the soil, it is now infinitely more pledged to it, when out of its population of 35,000,000 to 40,000,000 so large a population of her citizens are of recent emigration, and when American citizens are to be found outside of her limits in vast multitudes, at any moment that a foreign war might arise. Could your excellency believe that under such circumstances my government would give its assent to a principle, or think for a moment of repealing a law, the effect of which, if imitated by foreign nations, would be that every one of its numerous citizens in foreign parts would be liable to be detained in any hostile country with whom the United States might happen to engage in hostilities, because all such citizens are held liable at home, as is the case, to be called on to do military duty? No! I pray your excellency to consider the statute provision referred to, tested as it has been by a long series of years, and reiterated in sentiment as it has been over and over again in numerous subsequent treaties of the [Page 97] United States with other powers, as rather a fundamental, organic element of American policy, than as a passing temporary ordinance which could readily yield to the slightest pressure of a change of circumstances. In this sense I beg to put it upon the same platform as the neutrality statutes of the United States, which have remained essentially the same, notwithstanding numerous grave crises, ever since their first enactment in 1793.
Your excellency is pleased to pay the compliment to the distinguished American publicist Kent, whose opinion I took the liberty to cite, to say, that in regard to another passage quoted by me he limits himself to repeating the opinion of another, without expressing his own. In regard to this statute, however, your excellency will observe that he speaks for himself of it, as “dictated by a humane and enlightened policy,” (vol. 1 Commentaries, p. 58;) and I understand him to extend the same comment to English and French laws of the days of Edward III and Henry VIII of England, and the ordinance of Charles V of France, which declared at that early day that “foreign merchants who should be in France at the time of declaration of war shall have nothing to fear, for they should have liberty to depart freely with their effects.”
Will your excellency also allow me to make, in regard to the passage wherein you say Chancellor Kent contents himself with citing Vattel without giving his own opinion, that the learned chancellor says (five lines earlier, page 56) in his own person that “such stipulations (as allowing foreign subjects a reasonable time after the war breaks out to recover and dispose of their effects, or to withdraw them) have now become an established formula in commercial treaties.” If this should seem to be limited to the right of the foreigner to withdraw his property only, and not his person, I beg to ask if the concession of the lesser privilege does not, a fortiori, imply that of the greater. How can one be supposed to be able to withdraw his goods and effects [without] withdrawing himself also? Vattel, in the passage immediately following, (as do most of the writers on public law which I have had an opportunity to consult,) puts the two concessions upon the same common coördinate basis. And since your excellency has done me the honor to refer to Vattel in connection with Kent, will you permit me to call your attention to the fact that the American commentator, in quoting Vattel, fails to translate into English the full force of the Swiss publicist’s dictum, which I beg leave to characterize as one of the most forcible as well as most accurate expressions of the sentiments which I am trying to express in behalf of my Government that can anywhere be found. With your excellency’s permission, I will quote the whole paragraph from the original French:
“Le souverain qui déclare la guerre ne peut retenir les sujets de l’ennemi qui se trouvent dans ses états an moment de la déclaration non plus que leurs effets; ils sont venus chez lui sur la foi publique; en leur permettant d’entrer dans ses terres et d’y séjourner il leur a promis tacitement toute liberté et toute sûreté pour le retour. Il doit donc leur marquer un temps convenable pour se retirer avec leurs effets; et s’ils restent au delà du terme prescrit, il est en droit de les traiter en ennemis, toutefois en ennemis des amis. Mais s’ils sont retenus par un empèchement insurmontable, par une maladie, if faut nécessairement, et par les mêmes raisons leur accorder un juste délai. Loin de manquer à ce devoir aujourd’hui on donne plus encore à l’humanité, et très souvent on accorde aux étrangers, sujets de l’état auquel on a déclaré la guerre, tout le temps de mettre ordre à leurs affaires.”
These sentiments lose none of their force when it is remembered that they were uttered more than a century ago.
I will only allow myself a single further observation in regard to the judicial decision of the Supreme Court of the United States, upon which your excellency bestows a passing observation. When Chancellor Kent speaks of “the ancient and sterner rule having become definitively settled by the Supreme Court of the United States,” he does not point his comment with his usual accuracy. It was only with reference to the confiscation of property, and not the detention of persons, that the American Supreme Court was deciding; and it was only in reference to the formula that the learned chancellor’s comment was pertinent, and what I pray your excellency to observe was that decision. The lower court (the eminent Judge Story) had decided that British property found on American territory during the war of 1812 was rightfully seized and confiscated by the United States Government, but the Supreme Court overruled this decision, and held that enemies’ property was not liable to detention without a special statute of the United States Congress to that effect; and I beg your excellency’s attention to the fact that the United States never have passed any such statute of confiscation, àpropos of a foreign war, down to this day; and that, therefore, at the present moment, by the decision of the highest American tribunal, if any such war shall hereafter break out, an enemy’s property will not be liable to confiscation. As for his personal security, I beg leave to say that the belligerent stranger may fall back, with perfect security, upon the law of 1798, above commented on, and, as I believe, with perfect assurance that he will not see its repeal attempted, much less accomplished, whatever may be the pressure of a foreign war.
I trust that your excellency will see that in this more extended reply to the communication [Page 98] of the 3d instant than I intended, I have in view but the single point of representing, so far as I may do, without other instructions from home, the deep interest which I am confident my Government will take in the decision which the government of France feels itself constrained by circumstances to adopt in regard to North German subjects, whose interests I am permitted by the comity of his Majesty to represent and befriend.
I take the present opportunity, &c., &c., &c.
His Excellency the Duke de Gramont, Minister of Foreign Affairs.