BY the terms of the armistice with Germany and Italy which came into effect on June 25, 1940, the Pétain government laid down its arms without making any effort to exploit the still-intact resources of the great French Empire; and it broke the French alliance with Great Britain, embodied in the joint Anglo-French declaration of March 28 that neither nation would seek a separate peace.

When Marshal Pétain set up his government at Bordeaux on June 16, the British Government certainly entertained many misgivings. But it did not challenge the right of the new régime to represent the French people in international affairs. It merely recalled the British Ambassador and consuls, and tried to evacuate British nationals who would be subject to the dangers of the German occupation. A few weeks later, on July 10, the British Board of Trade, acting by virtue of the Trading with the Enemy Act, restricted trade with France. By that time the French Embassy in London had already been closed, following the naval battle of Mers-el-Kébir on July 3.

Meanwhile General Charles de Gaulle, who had been Under-Secretary of State in the Reynaud cabinet, had taken a decisive step. On June 18, the day after the announcement of Marshal Pétain's decision that France must lay down her arms, he denounced the mistaken idea of surrender and, speaking over the BBC, appealed to all Frenchmen to join him in continuing the war. As a matter of fact, many officers and soldiers had already made up their minds to fight along with the British, among them, for example, the commander of the submarine, Narval, at Malta, and all its crew.

Winston Churchill saw at once the immense political and moral value of General de Gaulle's move, and he promised British support to all Frenchmen who, either individually or collectively, decided to join de Gaulle and continue the struggle from British soil. Shortly afterwards, when it was obvious that no group of French politicians or statesmen was disposed or able to form a government of national resistance, either in France or in North Africa, the British Prime Minister wrote de Gaulle a letter in which he announced his policy towards him. "You are recognized by His Majesty's Government in the United Kingdom," he wrote, as "leader of all free Frenchmen, wherever they may be, who rally to you in support of the Allied Cause."

The process was carried further on August 7, 1940, when Mr. Churchill and General de Gaulle signed an agreement which has become the charter of the Free French forces. The British Government declared that it was resolved "when victory has been gained by the Allied arms, to secure the full restoration of the independence and greatness of France." On his part, General de Gaulle confirmed that "the French force now in process of constitution is intended to take part in operations against the common enemies (Germany, Italy or any other hostile foreign Power), including the defence of French territories and territories under French mandate, and the defence of British territories and communications, and territories under British mandate."[i]

It was agreed that the forces created and commanded by de Gaulle would keep their French characteristics, particularly as concerns discipline, language, promotion and outward appearance. French warships, as well as merchantmen, remained French property. The Free French forces would have priority in all matériel of French origin. British financial assistance for the creation and maintenance of these forces was to be regarded as loans. Nevertheless, de Gaulle recognized that basically his forces were part and parcel of the Allied armies. That is why he agreed that there should be a unitary high command and promised to accept decisions of the British War Cabinet concerning general strategy.

Volunteers who served under de Gaulle were thus recognized to be fighting "in the service of a State at war with Germany and Italy." Those Powers had tried to pretend that the de Gaullists were only guerrillas, or franc-tireurs, and therefore not subject to the ordinary rules of war when captured. This claim, aimed to intimidate the Free French, had been no more successful than it had been earlier when put forward to discourage Czech and Norwegian opposition. Now there was an added reason for Germany and Italy to observe the laws of war. They had to realize that as the British and Free French held numerous prisoners, who were being well treated, they had to accord similarly proper treatment to captured aviators of the Free French forces or subject their own men to retaliation.

Recruits did not wait for the agreement of August 7 before rallying to de Gaulle. The original nucleus consisted of several thousand veterans of the Flanders and Norwegian campaigns who had been evacuated from Dunkerque or Narvik and were already in Britain. Many of them had been wounded, but their spirits were high. Their ranks were augmented by heroic young men who succeeded in slipping out of France. Others came later from all parts of the world. Some 30 French warships in English ports immediately rallied to the new cause -- or, rather, the old cause. These were placed under the command of Admiral Muselier. The number of sailors rapidly increased. Bretons escaped across the Channel in their fishing smacks, and uniformed sailors came from French warships immobilized in distant ports. French merchant ships -- some 60 of them, totaling over 400 thousand tons -- followed suit. By the summer of 1941 the military strength of Free France consisted of about 50,000 white soldiers, sailors and airmen, plus 25,000 native troops. The navy totalled about 100 light vessels -- for the most part escort vessels and minesweepers -- plus a few submarines. And there were over a thousand airmen serving with the British.

These diverse forces could not have been welded together unless they had been activated by a common ideal -- to save French honor, to defend the French Empire, to free France, and to give back their liberties to the French people. Frenchmen living abroad coöperated in the task. In a few weeks more than 40 national committees were formed in many different countries, often on the initiative of Frenchmen who had fought in the first World War. And certain French intellectuals whose thought and pen were still free helped form the psychological basis of the Free French movement.

Recognition of de Gaulle as the leader of the Free French forces is not the same as recognition of a Free French government. Nevertheless, it has had certain legal and political consequences. Thus when the Pétain government capitulated, French citizens resident in the United Kingdom lost their privileged status as allies, and became aliens. But adherents of de Gaulle could, following a preliminary examination, avoid the more severe regulations applied to aliens, e.g., the necessity of remaining at home after nightfall, not changing their domicile without authorization, etc. Further, the Allied Forces Act (August 22, 1940) gave the commanders of Free French units on British soil administrative and judicial powers over members of those units, much as was done in the case of Dominion troops and the Polish, Czech and other foreign armies.

II

In June 1940 the French Empire consisted of five million square miles, scattered over four continents. Its population of 70 million persons, white and black alike, were loyal to France and anxious to continue fighting. But most of the colonial governors and military leaders thought otherwise and accepted the armistice. General Catroux, Governor of Indo-China, and General le Gentil-homme were among the exceptions.

The feelings of the people in general were revealed by their action wherever they were allowed to express their preference. The resident commissioner in the New Hebrides, M. Sautot, announced on July 20, 1940, that the population had adhered unanimously to General de Gaulle. A plebiscite in Tahiti on September 2 resulted in a landslide for the General. The same thing happened on September 9 in the French enclaves in India. And on September 20 the people of New Caledonia in a bloodless revolution expelled the new governor sent by Vichy. But it was in Africa that Free France gained its most extensive territories. Governor Eboué of the Chad -- a most strategically placed colony -- set the precedent on August 26. The mandated area of the Cameroons followed suit the next day. On August 28, General de Larminat, who had just arrived from Syria, entered Brazzaville and rallied all of French Equatorial Africa, including Gabon, to the cause.

To be sure, the territories which thus joined the Free French movement are not the most populous colonies of the Empire, neither are they the closest to France. They do not include any of the French possessions in the New World -- the presence of a French squadron in the West Indies made revolt there almost impossible. Moreover, General de Gaulle wishes to avoid international complications in the Western Hemisphere. The attempt to win Dakar a year ago ended in failure.

Nevertheless, the empire of the Free French covers an area of 1.25 million square miles and includes a population of ten millions. Naturally, it has created a need for some kind of central government. General de Gaulle has created such a body, called the Council of Defense of the French Empire.

III

The Vichy government is both illegal and illegitimate. The fact is important both from a legal and moral point of view.

The Pétain government cannot claim that its advent to power at Bordeaux on June 16, 1940, accorded with national tradition or had the support of public opinion since no means for expressing that opinion existed.

Immediately after it had capitulated to the Germans the new government consolidated its power by a coup d'état. In a book which purports to be an apologia for Laval, but in reality is a damning indictment of him, Jean Montigny has shown how the President of the Republic and the Presidents of the two Chambers were prevented from going to Africa to form a government which would continue resistance.[ii] Montigny also emphasizes how parliamentarians from the invaded departments, who were not able to be at Bordeaux and therefore could not be influenced by Laval, showed increasing opposition to his designs.

Hastily convoked at Vichy as a National Assembly, a majority of the members of the two Chambers on July 10 voted, not a new constitution or a temporary suspension of the Constitution of 1875, but a resolution prepared by M. Laval surrendering to the "Government of the Republic, under the authority and signature of Marshal Pétain," full powers to draft a new constitution, the ratification of which would be deferred sine die. The next day the Marshal promulgated four decrees by which he constituted himself Head of the French State, armed with the same full executive and legislative powers as pertain to an absolute monarch, including the power to appoint his successor. He designated M. Laval his heir-apparent. Henceforth, the government was responsible only to the Head of the State; and Parliament, though not officially dissolved, was deprived of all power and indefinitely prorogued (contrary, incidentally, to the promise made in the Government's draft bill). The President of the Republic was expelled from office. The inscription "Liberty, Equality, and Fraternity" was effaced from public buildings. The Official Journal and government decrees no longer used the words "French Republic."

Juridically speaking, the "resolution" of the National Assembly of July 10 and the four Pétain decrees are completely illegal. The reasons are several: (1) The National Assembly met hastily and under irregular conditions which effectively denied it freedom of assembly and of discussion. (2) The National Assembly -- the only body vested by the laws of 1875 with the right to alter the Constitution -- did not exercise this right but abdicated it in favor of an authority without legal standing. It violated its own raison d'être and committed suicide. The country had nothing to say about this proceeding and was not asked to ratify it. (3) The "Government of the Republic" thus empowered to revise the Constitution had no more legal standing than the organ that delegated such power to it. And in abolishing "the republican form of government" it proceeded in violation of the formal text of the 1884 Constitution.

General de Gaulle emphatically denounced the Vichy government in his Manifesto issued at Brazzaville on October 27, 1940, and in the complementary Organic Declaration of November 16. He stated that "The body known as the 'Vichy Government' which pretends to replace the Government of the Republic, does not enjoy the full measure of liberty which is indispensable for the full exercise of its powers;" and he proclaimed that since the voice of the Free Frenchmen was "the only one that the enemy, or the organism of Vichy which is subservient to the enemy, has not been able to silence," it represented the true voice of the nation. Moreover, he said, the pseudo-government of Vichy "did not hesitate to suppress the right of self-determination of the people, a right considered in France as traditional and sacred, in conferring on the Chief of State the possibility, on his sole signature, to conclude and ratify all treaties, even peace treaties or the transfer of territories, thus impairing the integrity, the independence and the existence of France, her colonies, and the countries under her protectorate or mandate."

From the first, the new constitution had the mortal defect that it was instituted under the aegis of enemy occupation, without consulting the nation, and with the purpose of depriving the nation of its freedom of action both at home and abroad. As such, it has no authority over Frenchmen, whether they reside within France proper or in that part of the Empire which is not under enemy control. Free Frenchmen who refuse to recognize the so-called Vichy government are not rebels in the usual sense of the term; for it is not a regularly constituted government and it is not independent of the enemy. Free France, on the other hand, can and does assert title to legality and legitimacy. Thus when General de Larminat became the head of Free French Africa on August 28, he appealed to the Constitution of 1875. The general council of New Caledonia, on hearing that the motto "Liberty, Equality, and Fraternity" had been suppressed by Vichy, spontaneously voted that it be repainted and boldly engraved on all public edifices on the Island. After July 16, as noted above, Vichy dropped the term "French Republic" in its orders and decrees. One of de Gaulle's first acts was to continue the traditional formula throughout the Free Empire.

When General de Gaulle assumed power at Brazzaville on October 27, 1940, in the name of France he predicated his action on four facts which stand in striking contrast with the acts of Vichy.

(1) The central authority, responsible for the defense of the overseas colonies and pledged to liberate the homeland, is merely provisional. It will last until a government that is truly French can be constituted, i.e., a representative government, independent of enemy control.

(2) General de Gaulle and his associates took solemn oath to answer for all their acts before the representatives of the French people when and as the French people can freely choose their deputies.

(3) His acts will be governed and shaped by the institutions and traditions of France, in accord with French constitutional law and "on the basis of the French legislation that antedates June 23, 1940."[iii] Free Frenchmen regard themselves as qualified to assume rights and duties under international conventions concluded by France prior to that date, particularly treaties of alliance, mandate conventions, etc.

(4) His first ordinance created a Council of Defense of the French Empire to assist him.

As concerns internal administration, the de Gaulle government has the same rights and duties in the Free French territories as Paris possessed before the armistice. Those colonies which previously had juridic personality and their own budget, and which were under the authority of a governor-general, retain their preferential status. For administrative convenience, the parts of the Free French Empire have been reclassified. General de Larminat has been named High Commissioner of Free French Africa, which includes Equatorial Africa (the union of four colonies, each having its territorial governor, and a governor-general for the union as a whole) and the French Cameroons. In the absence of General de Gaulle, the High Commissioner can take whatever measures -- including issuing decrees -- may be necessary for the defense of the territories. M. Sautot, Governor of New Caledonia, has become in addition High Commissioner in the Pacific (including Tahiti and the New Hebrides, as well as New Caledonia). General Catroux is the general representative of Free France and High Commissioner in the Near East. French enclaves in India deal directly with the central government.

Like Belgium and the Netherlands, Free France centers its administrative services in London, which is also the center of the war, even though the territories over which it exercises control are far distant -- just as the Belgian Congo and the Netherlands East Indies are. The Free French navy also operates chiefly in the waters around the British Isles. Nevertheless, Free France has its military center of gravity in Africa, in the colonies with a distinctive legal personality. Nothing can better symbolize the profound meaning of this war than the fact that Frenchmen of the mother country draw their greatest support from some of the newest regions of the Empire.

IV

What is the international status of this portion of the French community which has escaped enemy control? The problem would not exist if the German occupied zone included all of France, or if the President of the Republic and the Government had quit France in June 1940, either to establish themselves in some part of the Empire or to take up residence in Britain as the Governments of other invaded nations have done. In that case the de jure status of the French Government in exile, reinforced by a de facto position, would have been strong and clear.

Actually, the present position of the Free French seems to resemble that of the Czechs. They too, from London, continue the fight for the deliverance of their country. In both cases a pseudo-government in the homeland gives the appearance of being a regularly constituted and sovereign power. In reality, neither is free; both are controlled by Berlin. The Czech situation is simpler because Hitler formally proclaimed that the sovereign Czecho-Slovak state had disappeared. Great Britain, the United States, France and the Soviet Union refused to acknowledge the legality of this act and continued to recognize the old diplomatic representatives of the Czecho-Slovak Republic. The course of events in France was different. Nazi Germany did not claim to have annihilated the French State. The Vichy government occupied a de facto position in France which was not at first challenged seriously. And the principal foreign Powers did not dispute its claim to represent France in international relationships. According to the Res Gentium, the recognition of one government by others depends less on the domestic legitimacy of that government than on its ability to enforce its authority.

The rallying of important sections of the Empire to General de Gaulle greatly modified the original situation. His position now reminds one more of that of Mr. Venizelos during the First World War. King Constantine wished to keep Greece neutral; Venizelos insisted that Greece honor her alliance with Serbia and fight with the Allies. A patriotic uprising in Salonika, Crete and the Islands in 1916 gave him support; and he formed a Provisional Government which, after some months, received diplomatic recognition from France and Britain -- though these two Powers still retained their representatives at the court of King Constantine. The abdication of the King late in 1917 brought Venizelos to power. Actually, the moral position of Free Frenchmen is even better than that of Mr. Venizelos twenty-five years ago. The latter merely resisted his sovereign who wished to remain neutral. Free France stands in opposition to a government which is subject to enemy orders -- an enemy which is in occupation of a great part of the homeland and uses it as a base of operations against France's ally, Britain.

On January 5, 1941, the British Government gave recognition to the Council of Defense of the French Empire, established at Brazzaville on October 27, and declared its readiness to deal with the Council in all matters touching those overseas possessions of France which had put themselves under General de Gaulle's orders. This recognition of General de Gaulle and the Council of Defense as territorial authorities prepared the way for the British Government to negotiate with them in respect to both the political and economic interests of the colonies. In fact, an economic agreement relating to the Cameroons was signed on January 21, 1941, and one relating to French Equatorial Africa on May 20. These agreements fully respect the political and administrative independence, as well as the unity, of the French Empire in its relations with the British Government. Meanwhile, Britain retains all of its consulates in those parts of the French Empire now a part of Free France. And General de Gaulle and the members of the Council of Defense enjoy the same diplomatic immunities on British soil as those possessed by the exiled governments resident in London.

The recognition accorded on January 5, 1941, was still short of recognition of a Free French government. Thus far de Gaulle has not desired more, wishing to avoid giving Vichy any excuse for moving further from passive submission to the enemy to active collaboration with him. But even the limited recognition given the Council of Defense as a territorial entity shows that the British Government realizes that it fulfills the essential conditions on which, according to the Law of Nations, de facto recognition depends, e.g., an authority that is real and effective and adherence to the treaties and rules customary among nations.

Recognition has tacitly been accorded by other governments. The accredited representative of Free France was received in the capital city of the Belgian Congo with all the attributes regularly accorded to consuls. The United States has established a new consulate in New Caledonia, the first appointee being a senior ranking man in the American consular service. To him were delivered the first letters patent drafted by the Council of Defense for a foreign consul.

V

The Vichy government usurped power without consulting the French people or making an attempt to gain their approval. Even so, functioning within the terms of the Armistice, it could have fostered a policy of national union, of quiet but effective reconstruction, and so prepared the country to resume, at some later time, its place in the ranks of the Allies. It could have outgrown its bastard origin and have become the true, the de jure, government of France. It was in this trusting mood that many Frenchmen rallied around Marshal Pétain. Unfortunately his course of action has disillusioned them and has confirmed the pessimistic forebodings of Free Frenchmen.

Against that régime -- isolated from the nation and maintaining itself only with enemy bayonets -- stands the growing force of Free France. Can the Free French government ever become the de jure government of France? According to international law, a legal government forced to quit its own national domain because of enemy action can still be recognized by other governments if they regard it as being representative of the national will. The same principle should apply to a government in exile which gathers together the national forces of resistance in order to preserve at least parts of the national domain and in order to continue the struggle to liberate their fellow citizens from the enemy yoke.

The right of a people to be masters of their destiny, to choose their own form of government and to determine their relations with other Powers, is a privilege recognized by all civilized countries. It is merely the legal embodiment of an idea expressed by Fustel de Coulanges and Renan. "It is the determination of a people to live and suffer together which characterizes a nation." Any force which represents the will to save the national patrimony and liberate the national territory is a legitimate force. In the comity of nations, it should have a position of equality. Free France, and Free France alone, represents the will of the French people. It should be treated as if it were France.

[i] Cf. "Exchange of letters between the Prime Minister and General de Gaulle" (Cmd. 6220. London, 1940, 2d.).

[ii] "Toute la vérité sur un mois dramatique de notre histoire," Clermont-Ferrand (Editions Mont-Louis), 1940.

[iii] An example of General de Gaulle's position in this connection was furnished by a statement which he made on November 22, 1940, to the American Jewish Congress regarding discriminatory actions taken by Vichy against French citizens of Jewish blood. He said: "Be assured that since we have repudiated everything that has falsely been done in the name of France after June 23, the cruel decrees directed against French Jews can and will have no validity in Free France. These measures are no less a blow against the honor of France than they are an injustice against her Jewish citizens. . . . When we have achieved victory not only will the wrongs done in France itself be righted, but France will once again resume her traditional place as a protagonist of freedom and justice for all men, irrespective of race or religion, in a New Europe."

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  • RENÉ CASSIN, French jurist, several times delegate to the League of Nations Assembly, member of General de Gaulle's Council of Defense of the Empire
  • More By René Cassin