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The German position was reaffirmed in the case of Jonas Lippmann,
whose property was attached for a military fine, but the property
was afterwards released on other grounds. (For. Rel. 1897, 232–237.) The German Government, while maintaining that a native of Alsace did
not come within the treaty of 1868, stated that, in view of the interposition of the United States in his behalf, the authorities of Alsace-Lorraine would release him from his allegiance if he would so request and pay a fine imposed on him in the imperial courts at Strasburg in 1895 for evasion of military service. This done, he would be permitted to return to Alsace on a visit. (For. Rel. 1903,
442-444.) That the German Government still maintains its position with regard to
Alsace-Lorraine, and requires the release from nationality in such cases to be made the subject of a petition, see the case of Emil Vibert, For. Rel. 1904, 317 et seq., citing For. Rel. 1897, 230-231, and Mr. Olney to Jackson, March 3,
896, or. Rel. 1896, 187, supra.
(4) PRACTICE OF EXPULSION.
“ The undersigned, envoy, etc., of the United States of America,
begs to recall the attention of Dr. Busch, under secreCorrespondence of
tary of state, in charge of the imperial foreign office,
etc., to the note which the undersigned had the honor to receive from the foreign office under date of December 31, 1884.
" The undersigned, in making acknowledgment of its reception, reserved in its contents for the appreciation of his Government.
“ While the subject of the note involved the rights of Americanborn sons whose German-born fathers had during their minority returned with them to Germany to reside permanently, a declaration is added respecting the nationality of the father, which seems to have been made without a sufficient consideration of the language of the treaty of 1868.
“ That declaration is understood as follows:
“As regards the fathers of such sons, no doubt can exist that they are to be regarded as having renounced their naturalization by a longer sojourn than one of two years, pursuant to the treaties regulating nationality of 1868, concluded with the United States.'
“ The Government of the undersigned cannot find the reasons which would justify its concurrence in this view.
“ In its judgment the treaty cannot of itself convert an American citizen into a German, nor a German into an American, against his will. Even the renunciation of one citizenship does not of itself create another.
“ It does not profess to make provision for a resumption of a citizenship previously lost or renounced. Its object was rather to recognize the obligation of a new citizenship which had been lawfully acquired in the other country.
“ The fourth article of the treaty of 1868, in its first clause, it is true, recognizes the renunciation of the newly acquired citzenship by a total abandonment of the intention to return to the country where his new citizenship was acquired. But it does not affirm the restoration of the original allegiance. On the other hand, there are many naturalized Americans who reside for more than two years in Germany with the constant intent to return to the United States. They often carry on a business in both countries, beneficially increasing the commercial relations between the two.
“ These persons, however long residing in the original country, with the intent of later returning to the adopted country, have always been regarded by the United States as being still citizens of the country which they adopted. And such an interpretation, it is supposed, had received the acquiescence of the German Government, in view of the optional language of the third clause of the fourth article, which employs a different expression from that of the first clause. Such a practical construction has been one of the most beneficial results of the treaty. For it has served to cultivate the relation of commerce and friendship between the two countries.
“The Government of the United States receives with satisfaction the opinion declared by the German Imperial Government which recognizes that the American children of parents naturalized in the United States have an unconditional and durable American citizenship.
“On the other hand, it learns with regret that the Imperial Government regards itself as justified by international principles in refusing the sojourn in Germany of these native-born American citizens, although they are, as such, obedient to the laws and ordinances there prevailing. In these cases it is only a question of native citizens of the United States. There can be no distinction as to them based on national birth of the parents. Such children are not within the provisions of the treaty of 1868. This refusal of the right of peaceful cojourn, therefore, seems to the American Government to be in contravention of the spirit and even the letter of other treaties.
“ Thus, by the first article of the treaty of 1828 with Prussia, it is provided that the inhabitants of the respective states ó shall be at liberty to sojourn and reside in all parts whatsoerer of said territories, in order to attend to their affairs; and they shall enjoy to that effect the same security and protection as natives of the country wherein they reside, on condition of submitting to the laws and ordinances there prevailing.'
“ It can hardly be expected that the United States Government can acquiesce in a rule which, by administrative order, in either country, creates a class of residents who, while equally under the protection of treaties, may be summarily expelled from the country where they are residing in peaceful pursuit of their avocations and in obedience to all the laws. “ If my
Government rightly understands the scope of the principle claimed by Dr. Busch to be a principle of international law, it asserts, in effect, that any native citizen of the United States, sojourning in Germany for pleasure, for business, for study, or for whatever purpose, may be expelled when the circumstances indicate that the persons in question use their American citizenship only for the purpose of withdrawing themselves from the duties, and particularly from the military duty devolving upon the domestic population, without being disposed to abandon their permanent sojourn in Germany and the advantages connected therewith.'
“ How can şuch a rule be applied to admitted aliens, aliens even by birth? They are not withdrawing themselves from any duty of military service, because as aliens they owe no such duty. There can be no offense to public order in the nonperformance of a service which neither the local law nor the law of nations imposes.
“No ground is perceived by my Government which will justify a separation of such a class of residents from those intended to be protected by the language of the treaty above referred to. The suggested use of American citizenship is precisely one of the uses assigned to it by the law of nations, namely, the exemption from foreign military service. Can this fact, then, be inquired into as a motive of residence, and be construed into an offense for which a foreign resident may be withdrawn from treaty protection and refused the right of sojourn?
“ The undersigned is instructed to present these views to the just consideration of his Imperiai Majesty's Government, in the hope that they will lead to a common understanding of the rights of the citizens of each country peacefully residing in the other."
Mr. Kasson, min. to Germany, to the German foreign office, Feb. 25, 1885,
For. Rel. 1885, 107–106.
"From the note of Mr. Kasson, dated February 25 last, the undersigned understands that the Government of the United States has raised a series of objections against the justice of those decisions which have been arrived at by the Government of His Majesty the Emperor, with respect to former subjects of the Empire who have returned to Germany after naturalization and a sojourn of five years in America, as well as respecting the sons born in the United States of such subjects.
"After having considered the contents of the note referred to with an attention corresponding with the importance of the subject, the undersigned, to his regret, does not find himself in a position in which he is able to hold out a prospect of a change in the decisions in question. The expositions contained in the note of the 25th of February are directed primarily against the remark contained in the note of the foreign office of December 31 last, which reads:
** As regards the fathers of such sons, no doubt can exist that they are to be regarded as having renounced their naturalization by a longer sojourn than one or two years, pursuant to the treaties regulating nationality of 1868 concluded with the United States.'
“ In order to show the untenable nature of the position indicated by these words the envoy argues that article 4 of the treaties could, obviously, in case of the loss of the nationality acquired by naturalization, not have the effect of restoring at the same time the former nationality of the person in question. Such a really untenable assumption was, however, not expressed in the words which have been cited of the note of the foreign office.
“ The Government of His Majesty the Emperor is of the opinion rather that the persons to whom the conditions of article 4 of the treaties apply are to be reckoned neither as American citizens nor as subjects of the Empire, but as individuals without nationality.
“ Former subjects of the Empire who are in this case are, however, not dispensed from military duty in Germany. On the contrary, they are subject to this duty under the more particular provisions contained in section 11 of the imperial military law of May 2, 1874. (Imperial Laws, p. 15.) Further, the envoy attaches weight to the optional language of the third clause of article 4 of the treaties, where it is said that the renunciation of the naturalization may be held to exist when the person resides more than two years in the country.
“As far as the undersigned can perceive, the meaning of that expression is the following: In general the permanent transfer of sojourn to the land of the former nationality without the intention of returning to the country of adoption is intended to entail the consequence that the person is to be regarded as renouncing the naturalization acquired in the other country. In view, however, of the difficulty of proving in every particular case that the settlement (niederlassung) has taken place without the intention to return, and because an inward (mental) operation of this sort can only be deduced from outward circumstances which may be susceptible to varied interpretation, it has been agreed that the fact of a sojourn prolonged beyond the period of two years shall be sufficient to give to each of the treaty-concluding parties the formal right to treat the person as having renounced the nationality acquired by naturalization.
“For the rest, the foreign office, in the words cited from its note of December 31 last, did not mean to intimate that on the German side this right would be exercised in all cases without distinction. The Government of the United States may rather rest assured that the German authorities, in the application of that treaty right, will, as heretofore (already), allow all reasonable consideration to prevail.
“As regards the sons born in America of such former German subjects who sojourn with their fathers, the envoy represents that the contemplated adoption of measures of expulsion against such persons would not be in harmony with the provision of Article I. of the treaty of the year 1828, concluded between Prussia and the United States.
“ Provisions such as the one referred to are to be found in the majority of the treaties of amity and commerce now in force. But in the intercourse of the Empire with other states the view has been heretofore always and quite universally adhered to that by treaty provisions of this character the internationally recognized right of every state to remove foreigners from its territory when their further sojourn in the country appears to be undesirable, upon grounds of the welfare of the state, is not abolished.
“ This applies in a peculiar measure to the sons born in America of former German subjects when they live with their fathers permanently in Germany, participate like Germans in all arrangements for the protection and welfare of the subjects of the Empire, and only make use of their American citizenship to avoid the fulfillment of one of the most important duties of German subjects.
“ Continued toleration of such endeavors would necessarily lead to the formation within the Empire of a numerous group of population who illustrate by their example how it is possible, under the covering mantle of a foreign nationality, held by name only, to evade in a whole succession of generations the military duty imposed upon all.
“ In this connection the undersigned permits himself to point to the fact that His Majesty's Government has, only after repeated consideration, and after overcoming many scruples which suggested themselves, decided still to recognize the American nationality of the sons in question of former subjects of the Empire, even, also, when their fathers have lost the citizenship acquired in the United States. For the recognition of such a relation is in conflict with the legal view underlying the legislation of the Empire, pursuant to which minor children, standing under paternal control, share the nationality of the father. In order, however, to pave the way for an amicable solution of the existing difficulties, the Government of His Majesty has suppressed the scruples, and has not hesitated to give expression to that recognition.
“ It will, therefore, be found the less surprising if this Government, on the other hand, can not renounce the right nor withdraw from the duty of making provision against the injury to an important and just interest of the Empire that may possibly result from such accommodating action, by adopting measures of expulsion against the sons in