Gramont to E. B. Washburne stands for Elihu Benjamin Washburne., August 3, 1870

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.

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 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,