Washburne to the Duke de Gramont, & c, July 25, 1870

Mr. E. B. Washburne to the Duke de Gramont.

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 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.