[Translation.]
Mr. Bismarck to Mr. Brancroft
Versailles, January 15, 1871.
The undersigned, chancellor of the confederation, has received the note
which the Secretary of State of the United States of America, on the
21st of November last, addressed to the envoy of the North German
Confederation, Baron Gerolt, in reply to the communication made by the
latter respecting the intercourse with their Government of the members
of the diplomatic corps remaining in Paris. The Secretary of State
claims for the representatives of all neutral powers in Paris the right
of free written intercourse with their governments, on the ground that
such intercourse is in itself one of the privileges of envoys, and that
the communication of Baron Gerolt failed to convince the Government of
the United States that the special circumstances in the case of Paris
justified an exception.
As we have, in fact, forwarded Mr. Washburne’s dispatches both ways, the
question has a theoretical significance only. The undersigned has
nevertheless made the note
[Page 373]
of
the 21st of November the subject of careful consideration, and regrets
that he has not been able to arrive at the same conclusion. The right of
unhindered written intercourse between a government and its diplomatic
representative, especially so far as concerns the government to which he
is accredited, is in itself undisputed. But this right may come in
conflict with rights which of themselves are also beyond dispute; as for
instance in the case where a State, to guard against contagious disease,
subjects travelers and papers to a quarantine. So, too, in war. The
universal and imperative right of self-protection, of which war is
itself the expression, may come in conflict with the diplomatic
privileges, which, just because privileges, are, in doubtful case,
subject not to an enlarging, but to a contracting interpretation. A
precedent where a government has transformed its permanent seat into a
strong fortress, and has in consequence been exposed, with the envoys
accredited to it, to a long siege is certainly not to be found, so far
as known, in modern history, nor can indeed it well occur, since Paris
is, of modern capitals, the only fortress; and, in earlier times, when
every city was fortified, and sieges of cities in which a government had
its seat could occur more frequently, standing embassies were not yet
established.
If the writers on public law concede to the diplomatic representatives of
neutral states, rights as against a belligerent power, they do so only
while, at the same time coupling therewith the right to regulate the
correspondence of such persons with a besieged town, according to
military exigencies. Vattel says:
“Elle (la guerre) permet d’ôter à l’ennemi toutes ses ressources,
d’empecher qu’il ne puisse envoyer ses ministres pour solliciter des
secours. Il est même des occasions où l’on peut refuser le passage aux
ministres des nations neutres qui voudraient aller chez l’ennemi. On
n’est point obligé de souffrir qu’ils lui portent peut-être des avis
salutaires, qu’ils aillent concerter avec lui les moyens de l’assister,
etc. Cela ne souffre nul doute par exemple, dans le cas d’une ville
assiégée. Aucun droit ne peut autoriser le ministre
d’une puissance neutre ni qui que ce soit à y entrer malgré l’
assiégeant, mais pour ne point offenser les souverains, il faut
leur donner de bonnes raisons du refus que l’ou
fait de laisser passer leurs ministres, et ils doivent s’en contenter
s’ils prétendent demeurer neutres.”
What is true of ministers will be all the more so of messengers and
dispatches. Other authorities go still further. Merlin, cited with
assent by Wheaton, makes the privileges of a minister, who in time of
peace passes through the territory of a third state, subject to the
consent of the latter to the transit. Without this permission, express
or by acquiescence, the minister is to be regarded as an ordinary
traveler. The military necessity of cutting off a besieged town from
outside intelligence appears a sufficient ground for subjecting to
control, in a military point of view, the correspondence of diplomatic
persons remaining in the town in its transit through territory occupied
by the besiegers, and temporarily subject to their war sovereignty. It
is not perceived that these persons are thereby treated as enemies, nor
that they are thereby prevented from continuing neutral, nor that wars
are thereby indefinitely prolonged.
On the contrary, the end of a war is all the sooner to be expected the
more strictly the isolation of the hostile capital is carried out. Its
termination would be indefinitely distant if every one of the diplomatic
persons in a besieged capital, and their number may be very
considerable, could require that so often as he had to send a
communication to his government, or expected one from it, the activity
of the besiegers should be stayed.
The undersigned requests the envoy extraordinary and minister
plenipotentiary of the United States, Mr. George Bancroft, to acquaint
his Government with this communication, and takes occasion to renew to
him the assurance of his most distinguished consideration.
