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office by your legation.
Certainly peremptory expulsion at three weeks' notice may be fairly included under the termin general from every kind of prosecution, for expulsion is evidently a worse punishment than the ordinary fine, after the emigrant has incurred all the expense of a return to his native land, under the supposed protection of a treaty to remain there undisturbed for at least two years.
“ This brings me to the second point made by the German Government for its refusal to rescind the orders of the local authorities, namely, that the application or request of these young men of sixteen years for permission to emigrate before attaining the age of military liability appears to justify the assumption that in seeking the discharge from Prussian allegiance, which the application apparently involved, they were actuated solely by the purpose of withdrawing themselves from the performance of the general military duty in Prussia.
“ The minister of the interior on the 6th July, 1868, in his circular says:
* In concluding the treaty of the 22d February of this year between the North German Confederation and the United States of America it was the prevailing intention that in conformity to art. 2 of this treaty the punishable action committed by the unauthorized emigration of a citizen of the Confederation to the United States of America should not be made the ground for a penal prosecution upon the return of such person to his former country after absence of not less than five years, and that the punishment for such action, even though already declared, should not be consummated if the person has acquired in America the right to citizenship in conformity to Article I. of said treaty.
“ The circular of the minister of justice is to the same effect, and in almost the same words. It seems to be a self-condemned proposition, whose refutation is contained in its statement that, if the punishment for unauthorized emigration was in every case to be remitted, authorized emigration was to be a punishable offense, and yet this is what the German Government asserts.
“ Nor is it apparently quite logical to state (see Count Bismarck's note of December 21, 1885, transmitted in your No. 142) that the "discharge from Prussian nationality could not lawfully be refused in time of peace to persons who have not yet reached the age of military liability (that is, the completion of the seventeenth year), and yet to say: The assumption seems therefore to be well founded that the persons in question (all under seventeen) sought discharge from their native allegiance, and emigrated to the United States only for the purpose of withdrawing themselves from all performance of military duty in Germany, and the same purpose must be assumed in the cases of H. P. Jessen, H. F. N. Rohlffs, and C. H. E. Rohlffs' (though these three were over seventeen years of age, and therefore might
have been refused permission), “because these three persons emigrated , to the United States after attaining the military age, without permission, and without having responded to the duty of presenting themselves for military service.'
“This Government has always in its consideration of these cases proceeded upon the supposition, which has thus far not been contradicted by the foreign office, that the military liability, the aroidance of which was culpable and punishable, did not begin until the age of military service, which is given in the German constitution as the completion of the twentieth year, and when a recruit is sworn into the service under the flag and assigned to a regiment. A disregard of this liability is understood to be desertion, and as such never defended by this Government.
“ But whatever may be the age of military liability, the circular a of the minister of justice, issued in pursuance of the treaty, says, “The punishment incurred by punishable emigration is not to be brought into execution on the return of an emigrant who has obtained naturalization in the other country, and this decision is given in execution of the treaty in which no distinction is made between those who emigrate before or after the age of military liability, excepting only those persons referred to in article 2, understood to be deserters.
“ It seems unreasonable on the part of the German Government to grant a request to emigrate which carries with it necessarily a release from military duty whether the applicant asks for such release or not, and then years after this permission has been availed of to violate and invalidate its own permit, and impute motives to the emigrant which could have had no effect when applying for the permit, inasmuch as the authorities are obliged by law to grant it. But there surely ought to be a just and reasonable distinction drawn between the acts and intent of a mere lad of sixteen emigrating, and usually in obedience to his parents, and those of a young man of twenty who may have received his summons to appear, and hastens to escape from the country in order to evade its laws. Out of the thirteen persons expelled from Schleswig-Holstein since the 1st December, 1885, eleven were under eighteen years of age, and nine, who were under seventeen, had permits to emigrate.
“ The complaint by the German authorities has appeared heretofore to be not so much of the fact of emigration, whether with or without permission, as of the return to Germany after naturalization and by acts and words inciting the embryo recruits in their native villages to discontent and emigration.
“ But even as regards this species of offeuse, which is more legitimate in its basis than the one alleged in the Schleswig-Holstein cases,
a Printed Foreign Relations, 1868, Part II., p. 55.
great allowance should be made for the difference in popular habits and customs between America and Germany. In this country the emigrant travels freely and frequently. The sedate German becomes more active and migratory, and his proverbial and innate love for his fatherland naturally tempts him on acquiring his new nationality to return as often as possible to the home of his childhood from which he has been long absent. It was in contemplation of and to meet this feeling and this necessity, which it would be unwise and contrary to the instincts of humanity to ignore, that the treaty was made. The returning emigrants do not enter Germany as Germans seeking to evade military service, but as American citizens carrying the proofs of their naturalization as required by the treaty, and generally with a passport recognizing them as American citizens, and claiming for them protection as such. How much more favorably then should their cases be considered, when they hold a discharge by German authority from their original military obligations and a permit to emigrate to foreign lands.
“ This Government considers that it has a right to ask that these passports and naturalization certificates shall be respected by the German authorities, and that the right to unmolested sojourn of returning naturalized German-Americans whose papers are evidence that they have complied with the United States laws and the provisions of the treaty of 1868 in regard to change of nationality, shall be acknowledged and respected, and that if a continuous residence in Germany of two years may be held to imply a renunciation of American allegiance no such implication shall arise in any shorter period, excepting in cases where the intent to reassume German nationality shall have been expressed explicitly by the returning emigrant. Consequently, during the said stipulated period of two years the naturalized American is entitled to protection from molestation or expulsion as long as he submits himself to the laws of Germany. The recent course of Germany in expelling a number of naturalized American citizens, whose quiet and inoffensive character was officially testified to, is considered contrary to treaty provisions, and as affecting the rights of a large class of our citizens who are not included in the special exceptions stipulated for in article 3 of the treaty of 1868 regarding criminals and fugitives from justice.
“You are therefore instructed to present these views to the German Government, requesting at the same time that it will reconsider its decision in the recent cases of expulsion (and which I must believe to have been inadvertently made) in the light of the above recitals. The general doctrine of the right of a nation to expel obnoxious foreigners, whose presence is dangerous to its peace and welfare, from its shores, is well known to this Government, and by none more readily acknowledged, but this right was not lost sight of in framing the treaty of 1868, and while the right is admitted, yet its particular application as regards naturalized Americans is considered in and limited by that treaty.
“ You may read this instruction to the minister of foreign affairs and furnish him with a copy of the same for his information."
Mr. Bayard, Sec. of State, to Mr. Pendleton, min. to Germany, March 12,
1886, For. Rel. 1887, 309. See, as to the case of Ilans Peter Jessen, above mentioned, Mr. Bayard,
Sec. of State, to Mr. Pendleton, min. to Germany, No. 91, Jan. 299,
1886, MS. Inst. Germany, XVII. 589. The foregoing instruction of Marih 12, 1886, related to numerous cases of
expulsion in 1885–7, from the island of Föhr, Schleswig-Holstein,
Rel. 1886, 310, 311-31.5, 323.
born in the United States of German parents could not be made to
"A series of well-considered cases, extending from the time of the mission of my honored predecessor, Mr. George Bancroft, the negotiator of the above-named treaty, to wit, from 1875 down to and including the period when my immediate predecessor, Mr. John A. Kasson, had charge of this legation in 1885, has interpreted the third clause of the fourth article of the treaty to mean that a naturalized citizen of the United States, having resided there five years, returning to Germany shall have a right of uninterrupted sojourn in the last-named country for the period of two years, provided he obeys the laws thereof. The gentlemen in charge of the imperial foreign office yielded an assent to this interpretation as often as it was asserted by the envoys of the United States. The undersigned would willingly point out the several cases to which he refers, but he is satisfied that these records of the diplomatic correspondence are very familiar to Count Bismarck. He permits himself, however, to mention the cases of Solomon Moritz Stern in 1876, of Ellis Block in 1878, of Edmond Klein in 1879, of Arft A. Rörden in 1880, of Lazard Rosenwald in 1880, of Jurgen I. Grau in 1882–83, and the correspondence connected therewith, among many others of a similar tenor. The argument on which this conclusion was reached need not now be discussed. It was entirely conclusive to the officials of the two Governments, and the result they reached seems to be no longer an open question.
“As a reason for not applying this well-settled interpretation of the treaty to the case of Knudsen, (Count Bismarck says in the abovementioned esteemed note that, on the general grounds developed by him in former communications, the measure of expulsion must now be executed after a sojourn of more than three months in the house of his parents has been permitted to Knudsen. The undersigned understands these former communications to be the notes of Count Bismarck of December 21, 1885, and of January 6, 1886. The note of December 21, 1885, says (the undersigned quotes only that he may not possibly unintentionally misrepresent :)
* * The assumption seems therefore well founded that the persons in question sought discharge from their native allegiance and emigrated to the United States only for the purpose of withdrawing themselves from the performance of military duty in Germany. This same purpose must be assumed in the cases of: (7) Hans Peter Jessen (note of the 9th ultimo, foreign office, No. 116); (8) Heinrich Friedrich Nikolaus Rohlff's (note of the 13th ultimo, foreign office, No. 124), and (9) Constantine Heinrich Edward Rohlffs, (note of the 13th ultimo, foreign office, 123).
These three persons emigrated to the United States, after attaining the military age, without permission, and without having responded to the duty of presenting themselves for military service.
Should a further sojourn, and one for an indefinite period, such as they desire, be permitted them, a furtherance would thereby be afforded to the purpose of those persons, manifestly aiming at evasion of the performance of military duty, which does not appear to be in accord with the interests of the state and the public order."
"And the note of January 6, 1886, after quoting the substance of the former note, adds:
“ “ 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.'
“ It is not asserted that Knudsen has violated any law or committed
any breach of the peace or order of the community, or that he has by word or deed, by persuasion or example, sought to mislead or to excite discontent among the people with whom he associated. This would seem, therefore, to be a case in which would apply with special force the instruction given by the royal Prussian minister of the interior to the authorities of the Royal Government, 'to abstain from recommending trial and punishment, and in general from every kind of prosecution.'
“ The intention with which he emigrated, the mental process by which he was brought to a decision, in no wise impaired the lawful