question of former subjects of the Empire, under the conditions stated in the note of the foreign office of December 31 last. "While the undersigned submits the foregoing to the chargé d'affaires, in order that it may, if desired, be brought to the knowledge of the Government of the United States, he at the same time avails," etc. Count Hatzfeldt, Imp. sec. for for. aff., to Mr. Coleman, chargé d'aff. ad int. at Berlin, May 16, 1885, For. Rel. 1885, 417. Cited in For. Rel. 1897, 228. Aug. 22, 1884, Mr. Everett, American chargé, laid before Count Hatzfeldt the case of David Lemberger, who had been ordered by the authorities of Wurtemberg, where he was residing, to appear for military duty. Mr. Everett stated that Lemberger was born in the United States in 1862, and that his father was admitted to American citizenship in 1860. Count Hatzfeldt replied, April 26, 1885, that Lemberger had been stricken from the military rolls, it having been ascertained that he could not be considered a German subject. June 3, 1885, however, Mr. Pendleton, then American minister at Berlin, wrote to Count Hatzfeldt that the Wurtemberg authorities had ordered Lemberger within a certain time to accept German allegiance or else to depart. Count Hatzfeldt replied, July 11, 1885, that the measure could not be withdrawn, since Lemberger "belonged to the class of persons who employ their foreign allegiance simply for the purpose of evading military service in Germany," and to whom the principles set forth in the note of May 16, supra, applied. On receiving this correspondence, Mr. Bayard, Aug. 1, 1885, wrote to Mr. Pendleton, saying: "It is noticed that Count Hatzfeldt bases his decision to expel Lemberger on the note from the foreign office to the legation of the 16th instant, which discusses the status of the sons of former subjects of the Empire who have returned to Germany after naturalization, and therefore, to meet his arguments, it will be necessary to show that Lemberger's father did not return to Germany after naturalization. This fact does not appear in any of the correspondence forwarded with your dispatch, but may possibly be susceptible of proof from your correspondence with Lemberger himself or the consul at Stuttgart." Aug. 31, 1885, Mr. Pendleton informed Mr. Bayard that the fact that the father had returned to and resided in Wurtemberg was known to the legation when Count Hatzfeldt's note of July 11 was received, and had precluded the reply which occurred to the Secretary of State, and would have been very pertinent had the fact been otherwise." At the same time Mr. Pendleton communicated to Mr. Bayard a translation of a letter from Lemberger, sr., as follows: "I came with my family in 1870 to Wurtemberg, and returned to America without them in 1874, where I staid for about fifteen months, returning here again, where I have since lived, in 1875. My son has not yet obtained German allegiance. I have been looking about me to see where it could be obtained most cheaply. I was at Münster, Oberamt, and Cannstadt, where my son has been promised citizenship when the matter shall have been decided by the Imperial office. My son is still here with his parents." The case was not further pressed. (For. Rel. 1885, 423-425, 426. 427, 429, 436.) "The undersigned has had the honor to receive the note dated December 24th last, foreign office, No. 143, relating to the expulsion of several American citizens from Prussia, of the envoy extraordinary and minister plenipotentiary of the United States of America, Mr. Pendleton, and to give to the statements contained in the same an attentive appreciation. To his regret the undersigned is not able to adopt in all points the views expressed by the envoy, and has only found it possible to request the appropriate Royal Prussian authority to grant to Meinert Boysen (Simon Meinert Boysen), who seemed worthy of special consideration, permission to sojourn in Prussia until the beginning of next summer. "In the note of the undersigned of the 21st of December last, it was already pointed out that the refusal of the permission in question was based on the consideration of the particular circumstances under which the nine persons concerned left their native land and have now returned to it. The Prussian authorities are convinced that all of those persons emigrated solely for the purpose of withdrawing themselves from the performance of military duty. If such persons were permitted, after they have acquired American citizenship, and while appealing to this change of nationality, to sojourn again, according to their pleasure, unhindered, for a shorter or longer period, in their native land, furtherance would thereby be given to similar endeavors, and respect for those laws would be endangered upon which is based the general liability to military service, one of the most essential and important foundations of our state life. Solely on this account, and not as a sort of punishment for evasion of military duty, has the expulsion of those persons been decreed, after a period of sojourn amply sufficient under the circumstances had been accorded them. "The envoy has advanced the question whether the right of the Prussian government to expel American citizens has not been restricted by the treaty regulating nationality of the year 1868, and earlier by the treaty of commerce and navigation, of May 1, 1828, between Prussia and the United States. So far as the last-named treaty is concerned, considering it first, Article I. of the same provides that the citizens of either state shall be at liberty to sojourn in the territory of the other state, in order to attend to their affairs there, and that they shall enjoy for that purpose the same protection as the citizens of the country wherein they reside, on condition of their submitting to the laws and ordinances there prevailing. "Heretofore the foreign office has pointed out, in the note of Count Hatzfeldt of May 16 last, that, in conformity with the view heretofore generally entertained in intercourse between the Empire and Prussia and other states, and contested from no quarter, provisions of this character by no means conflict with the right of every inde pendent state to expel foreigners from its territory when such course is considered requisite upon grounds of the welfare of the state or of the public order. "Nor do the treaties regulating nationality of the year 1868 conflict with the exercise of this right. “Under Figure III., No. 1, of the final protocol of the BavarianAmerican treaty, which agrees in all essential points with the treaty between the North German Confederation and the United States, this is distinctly recognized, and thereby the North German-American treaty, concluded at an earlier date, has, in a certain manner, received an authentic interpretation. Germans naturalized in America, who have resided five years in the United States, are, it is true, in accordance therewith to be regarded as Americans, and are also to be treated as such in case of their return to Germany, in so far as they have not, in accordance with Article IV. of the treaties, renounced the naturalization acquired in the United States. They may, however, nevertheless, when the accompanying circumstances require, be expelled like any other foreigner. On principle this right will be considered [exercised] only when maturely considered grounds of the public welfare compel. "The envoy may rest assured that the Royal Prussian government has been actuated solely by considerations of this character in the action it has taken with respect to the persons in question." Count H. v. Bismarck, Imp. sec. for for. aff., to Mr. Pendleton, min. to "The doctrine now laid down by the foreign office seems to embody two propositions. The German Government appears to claim, first, that any American, whether he be native or naturalized, may be expelled from Germany whenever, in the opinion of the authorities, the welfare of the state demands it; and, second, that a good and sufficient ground for such expulsion is to be found in the purpose on the part of an emigrant to avoid military duty by emigration, the sufficient proof of which purpose for the German Government is the fact. that the emigrant demanded an official permit to leave his native land. “I will now examine these two points in turn. "The claim made by the German Government of a general right of expulsion raises the question of what rights of sojourn naturalized Americans have under the treaty of 1868. Article I. of that treaty reads as follows: "Citizens of the North German Confederation, who have become naturalized citizens of the United States of America, and shall have resided uninterruptedly within the United States five years, shall be held by the North German Confederation to be American citizens, and shall be treated as such. "This appears to be the only sentence in the treaty relating to the status of naturalized American citizens pending the two-years' stay which is referred to in the fourth article of the treaty, and we must, therefore, turn to our treaty with Prussia of 1828, which is still operative, for a definition of the status and treatment of American citizens. Article I. of that treaty says: "There shall be between the territories of the high contracting parties a reciprocal liberty of commerce and navigation. "The inhabitants of their respective States shall mutually have liberty to I enter the ports, places, and rivers of the territories of each party wherever foreign commerce is permitted. They shall be at liberty to sojourn and reside in all parts whatsoever 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 their submitting to the laws and ordinances there prevailing. "There would seem to be no question that under the concurrent effect of these two treaties, Americans, both native and naturalized, should have a free and equal right of peaceable sojourn in Germany if they submit to the laws. "I notice the statement of Count Bismarck in his note to you of the 6th of last January, inclosed in your No. 154, of January 18, 1886, and in reply to your note to him of December 24, 1885, that the provisions of the treaty of 1828 do not conflict with the right of every independent state to expel foreigners from its territory when such course is considered requisite upon grounds of the welfare of the state, or of the public order, and that the treaties of 1868 regulating nationality do not conflict with this, and that returning emigrants, even when recognized as naturalized Americans, may, when the accompanying circumstances require, be expelled like any other foreigner, but that on principle this right will be invoked only when maturely considered grounds of the public welfare compel. This opinion, which would seem to put our relations with Germany as regards naturalized Americans on exactly the same footing as they were before the Bancroft treaty of 1868, and to open the door to the same endless and unsatisfactory discussions as then took place, does not, therefore, meet with the assent of this Government.. "The only question which it seems to this Government can be raised as to the right of Americans under our two treaties to remain in Germany would be of how long a period of time is covered by that right in the case of naturalized Americans; and, to decide this, reference to the fourth clause of the treaty of 1868 is necessary. "Now, it would seem to be impossible to apply the prima facie test of an intent to renounce American citizenship as provided for in the last clause of that article, namely, a residence in Germany of over two years, if the returning emigrant is liable to be expelled, as is now proposed, before the expiration of the two years, and no right is reserved in the treaty to the German Government to decide what period less than two years is sufficient, as Count Bismarck intimates, to attend to their affairs. This intent to renounce American nationality may, it is true, be expressed in some other way than a stay of over two years, and this not infrequently is the case, as is shown by dispatches from your legation reporting cases of deliberate and voluntary resumption of German allegiance on the part of naturalized Americans returning to their native land; but this Government contends that in the absence of any such voluntary and express manifestation of intent to renounce American citizenship, our citizens can, under the treaty of 1868, claim recognition of their status and all rights of sojourn pertaining thereto during the first two years following their arrival in Germany. "That the intention of the German Government at the time of the signing of the treaty coincided with the views of this Government, as above expressed, appears clearly from the words of the decrees from the ministries of justice and the interior issued on the 6th of July, 1868, to all royal courts of appeal, supreme courts, state attorneysgeneral; to all the governments of the monarchy; to the chief president at Hanover, and to the presidency of police in Berlin, for their guidance and distribution. These provide "That the punishment incurred by punishable emigration is not to be brought into execution on occasion of a return of the emigrant to his original country if the returning emigrant has obtained naturalization in the other country, in conformity to the first article of the said treaty. Also: "In conformity to article 2 of this treaty, the punishable action committed by the unauthorized emigration of a citizen of the United States of America should not be made the ground of a penal prosecution upon the return of such person to his former country after absence of not less than five years, etc. "The Royal Government is therefore instructed in such cases to abstain from recommending trial and punishment, and in general from every kind of prosecution whenever the person in question is able to produce proof that he has become a naturalized citizen of the United States of America in conformity with the first clause of Article I. "Yet, notwithstanding these edicts, the proceedings and sentences against returning Americans appear to emanate from the local authorities in disregard of their instructions to report officially the remission by way of grace of the declared punishments and costs,' the possibility of condemnation and execution of the penalties not being apparently in any case contemplated by these decrees. These orders are entirely pertinent to the present discussion, although they may be admitted to have more especial reference to military fines for nonperformance of military duty, with a term of imprisonment in default of payment, the greater number of which are eventually repaid after the cases have been brought to the notice of the foreign H. Doc, 551-vol 3-25 |