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ness of the emigration. So, also, the return to his native country of the emigrant as a naturalized citizen of the other country, after a five years' sojourn therein, is expressly permitted and provided for by the treaty. The emigration is permitted, the return is permitted, the sojourn is permitted. How, then, can the recognition of these three permitted events be a furtherance of a reprehensible desire to evade military service? The very act of emigrating involves the avoidance of military duty. There can be no emigration before the extreme limit of age at which the subject may be called on, which does not involve such a voidance.
“ The performance by the emigrant of acts which are separately · permitted and sanctioned by the German Government, to wit, emigration, return, and sojourn, can not, when they are combined, give him a quality which, in the absence of any offensive conduct, is dangerous to the state, and thus justify an exception to the rule of two years' residence. No German-born naturalized citizen of the United States can sojourn for any length of time in Germany if the facts of emigration and return are to be considered as proof that the emigration was merely from a desire to avoid the performance of military duty, and such desire renders the person dangerous to the state, and therefore justifies expulsion. If all a man's acts are lawful, his motives, his desires can not be the subject of animadversion; they become important only when the acts themselves are unlawful.
"The undersigned is quite aware that Count Bismarck, in his note of January 6, 1886, says that these expulsions are not by way of punishment, but lest a · 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 very true that Count Bismarck says repeatedly, and with great consideration, that this right of expulsion will be exercised with moderation, and only on occasions of imperative necessity. For this assurance the undersigned is duly appreciative, but he can not avoid saying that this is a question of right under treaty stipulations, and not of grace and favor, however kindly and constantly exercised."
Mr. Pendleton, min. to Germany, to Count Bismarck, April 10, 1886, For.
Rel. 1887, 376.
Bayard's instruction of March 12, 1886.
“ The envoy of the United States of America at Berlin has addressed the foreign office in behalf of several former Prussian subjects, who, when they had attained the age when they were required to perform military duty, or shortly before attaining that age, emigrated to
the United States, and after having become naturalized there, returned to their native country, and were expelled from Prussia by the competent authorities before the expiration of two years from the date of their return. It has, in the majority of cases, been impossible to grant Mr. Pendleton's applications for the revocation of these orders of expulsion. The aforesaid envoy addressed two notes, dated, respectively, April 10 and 16, 1886, to the foreign office, in which he requested that the last two cases that have arisen (those of Knudsen and Burmeister) might be reconsidered. He stated, moreover, that he had been instructed to protest against the action of the Prussian authorities in these cases, inasmuch as his Government regarded it as a violation of the rights guaranteed by treaty to American citizens in Germany.
“ The contents of those two notes and of the instructions of the State Department, a copy of which was sent by Mr. Pendleton as an inclosure to his note of April 10, 1886, have been carefully examined, and the undersigned, Imperial German envoy extraordinary and minister plenipotentiary, has been instructed to communicate, in reply to these communications, the following observations to the Hon. Thomas F. Bayard, Secretary of State of the United States.
“ The Government of His Majesty the Emperor observes that the United States Government does not dispute the right, which is recognized in international law, of every state to expel from its territory foreigners whose stay in the country is, in the opinion of the Government, prejudicial to public welfare and order.
“ The Imperial Government is unable to reach the conviction that the treaty of friendship and navigation concluded in 1828 between Prussia and the United States, or the treaties relative to naturalization concluded in 1868, involve any restriction of this right as regards the parties to said treaties.
As to the first-named treaty, the Imperial Government thinks it can but refer to its previous declarations. With regard to the naturalization treaty concluded between the North German Union and the United States in the year 1868, the only stipulation contained in it that is now to be considered is that embraced in article 4, paragraph 3. According to this a renunciation of the intent to return to the United States (and likewise a renunciation of naturalization as an American citizen) may be considered to exist when the naturalized person remains more than two years in the territory of the other party. So long as there has been no such renunciation, German-Americans who have returned to the country of their former nationality under the presumptions of the treaty are to be considered, according to article 1, as citizens of the United States, and to be treated as such. This, however, is equivalent, for the period of two years only, to a renunciation of the right to treat them as native citizens, and to compel
them as native citizens to perform their civil duties, especially the general duty of service. They are consequently liable to expulsion, as are all other foreigners sojourning in Germany.
It is, in the opinion of the Imperial Government, too broad an assumption, if the United States Government desires to infer from the said stipulation that Germany has renounced in general its right to expel foreigners who, like these Americans, have been in Germany less than two years. Even if it be supposed that everything is legal, the mere stay of a foreigner in the territory may, under certain circumstances, become detrimental to the public interest. In such cases the Imperial Government must reserve to the authorities of the States of the federation the right to expel at any time even an American who is protected by the treaty, and that, too, before the expiration of the aforesaid term of two years.
“Mr. Pendleton's statement, in his note of April 10, 1886, that both parties have hitherto been agreed concerning an interpretation of the treaty that recognizes the right of undisturbed sojourn for two years, is based upon a misapprehension. The Imperial Government has, on the contrary, always maintained the opposite view, as above stated, and has expressly maintained this position on several occasions; for instance, in the note of July 18, 1878, of the foreign office to the American legation at Berlin relative to the case of Bäumer.
“ Mr. Pendleton's reference in support of that statement to the executive orders issued in July, 1868, by the Prussian minister of the interior and the minister of justice also appears to lack sufficient ground. According to those orders it is true there is to be no prosecution of persons showing that they have become naturalized in America, on account of the punishable act committed by them in emigrating. The reference to article 2 of the treaty shows, however, and the context leaves no doubt on this point, that a judicial prosecution only is not admissible. Expulsion, however, resorted to in pursuance of a decision of the police authorities of the state, does not come within the purview of such prosecution, for expulsion is not a punishment in a judicial sense, but an administrative measure adopted by the state out of regard to its own safety and domestic policy.
It is true that the Imperial Government formerly contented itself with merely reserving in principle to the German authorities the right to expel naturalized Americans before the expiration of the period of two years, while this right was not actually exercised. This was done as long as circumstances permitted, in order to avoid differences of opinion with a friendly government. As, however, a disposition has become more and more manifest, especially among the population of certain portions of the country, to evade the performance of military duty by emigrating to the United States, and by appealing to the treaties of the year 1868, and to enjoy, in spite thereof, by returning home, the rights and privileges of native citizens, a stricter course has recently been deemed necessary, and this has led to the expulsions in question.
“ The perfect right of the Imperial Government to adopt these measures can, after the foregoing statements, hardly appear doubtful.
“ The positive necessity and appropriateness of such a course can, on the other hand, naturally be appreciated only from the standpoint of the internal policy of the Empire. In this connection, it is enly possible once more to refer to the fact that the Imperial Government deems it irreconcilable with the defense of the interests intrusted to its care for persons who have evaded the performance of inilitary duty by emigration to exercise, on returning after a short absence, all the rights of native citizens, after having eluded the fulfillment of the duties incumbent upon such citizens.
“Although this course is not in actual violation of any law of the state, still the Imperial Government has good reasons to desire that the example set by these persons of a systematic evasion of the performance of military duty should not be followed. It has, consequently, not felt called upon to disapprove the measures of the Prussian authorities now under discussion, or to take any steps designed to bring about a revocation of the orders issued for the expulsion of Knudsen and Burmeister.
The political interest of the Empire in repressing abuses of the treaty, resorted to with the view of evading military duty, is so vital that, after past experience, the denunciation of the treaties of 1868 would become necessary to German interests, if the interpretation of the treaties, as set forth in Mr. Pendleton's note, should be accepted as final. The Imperial Government has, thus far, not abandoned the hope of being able, by a judicious exercise of the right of expulsion, to avert the evil consequences which, from the German standpoint, are naturally connected with the continued existence of the treaties.
“ The Department of State takes the view that, if the principles recently asserted are to be enforced, any German who has emigrated to the United States will, in case of his speedy return, have cause to fear immediate expulsion, and thinks that this state of affairs would be equivalent to a de facto restoration of the condition of things which existed before the treaties were concluded. Neither of these assumptions, however, seems well founded. In the case of persons who have emigrated to the United States in good faith, that is to say, who can show that they have done so from motives not connected with the general military service, there will be no occasion for expulsion. Yet even persons liable to military duty, who have emigrated notoriously for the purpose of evading the performance of military duty, are better off now than they were before the conclusion of the treaties, or than they would be after their denunciation, since now, provided that they do not expressly or tacitly renounce their American naturalization, they suffer expulsion only and can not be punished or compelled to serve in the standing army or the navy."
Mr. von Alvensleben, German min., to Mr. Bayard, Sec. of State, July 8,
1886, For. Rel. 1887, 416. For comments of Mr. Pendleton, minister to Germany, see For. Rel. 1887,
379-382. April 7, 1887, For. Rel. 1887, 386, Mr. Pendleton inclosed to Mr. Bayard
a translation of an article from the Berliner Tageblatt, of April 7,
1887, reading as follows: “In the meantime a decision of the superior court of administration has
been communicated to the Prussian administrative authorities which
settles the following: “(1) The provisions of the treaty concluded with the United States of
America in relation to citizenship have undergone no change by reason of section 21 of the Imperial law of June 1, 1870, concerning the acquisition and loss of German citizenship in the Empire and State, but have rather received a clear interpretation, that the acquisition of citizenship in the United States, in conjunction with five years' uninterrupted residence there, works a loss of citizenship in Germany, and that hence such persons are subject to expulsion from the country until their reacquisition of German citizenship, and that this expulsion can not be called in question by remon
strance to the administrative authorities. “(2) The right of reacquiring citizenship in Germany, according to sec
tion 21, subdivision 3, of the Imperial law of June 1, 1870, does not extend to persons for whom the acquisition of a foreign citizenship
has worked the loss of German citizenship in the Empire and State.” Subdivision 5 of section 21 of the Imperial law of June 1, 1870, is as
follows: German subjects “who have lost their citizenship by ten years' residence
in a foreign country and subsequently return to the territory of the North German ('onfederation, acquire citizenship in that State of the confederation in which hey take up their residence by a decree of admission of the superior administrative authorities which must
be issued to them at their application.” (Id. 387.) With reference to the article from the Berliner Tageblatt, Mr. Pendleton
said: " There seems to be nothing particularly new in this résumé of the de
cision, except possibly in the notice that remonstrance against proceedings of expulsion will not be heard by the administrative authorities, and that the provisions of the fifth paragraph of Article 21, of the law of June 1, 1870, does not apply to persons who have lost their German citizenship by reason of naturalization in a foreign country.”
The undersigned, Secretary of State of the United States, had the honor to receive some time ago the note of Mr. von Alvensleben, envoy extraordinary and minister plenipotentiary of His Majesty the Emperor of Germany, of the 8th July last, relative to the cases of several naturalized citizens of the United States of German origin