Washburne to the Duke de Gramont, August 9, 1870

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 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 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.