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who were expelled from Prussia not long after their return on a visit to that country. The note in question, however, while referring to (ertain cases specifically, contains a general discussion of the rights of sojourn of naturalized citizens of the United States of German origin in their native country, in the form of a reply to the views expressed in two notes of Mr. Pendleton, envoy extraordinary and minister plenipotentiary of the United States, to the Imperial foreign office, bearing date, respectively, the 10th and 10th of April last.
“ The views of this Department have already been so fully stated in previous communications to the Imperial Government, and especially in the note of Mr. Pendleton and its inclosures of the 10th of April last, that their further statement or amplification would seem unnecessary, if it were not for the apparent misapprehension, betrayed in the note of Mr. von Alvensleben, of the Imperial Government as to the views of this Department on the subject of the right of expulsion. The esteemed note of Mr. von Alvensleben correctly 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 prejudicial to public welfare and order; but at the same time it apparently assumes that the exercise of that right is denied by this Government to Germany in respect to naturalized citizens of the United States of German origin during a period of two years immediately ensuing their return to their native country.
" But for this apparent misapprehension of the views of this Department the undersigned would have read with not a little surprise the declaration contained in Mr. von Alvensleben's note, that the denunciation of the treaty of 1868 would become necessary if the interpretation set forth in Mr. Pendleton's notes should be accepted
“ It has not been the purpose of this Department to deny to Germany the right at any time to expel foreigners whose presence may be found to be dangerous to the public safety, but while thus freely admitting the right of expulsion this Department holds that its arbitrary exercise can not be regarded as consistent with existing relations.
“ It is not understood ever to have been claimed by this Government, and it is not claimed by it now, that the clause in the treaty of 1868 in respect to a two years' residence of naturalized citizens in the country of origin was under all circumstances to be held to be a guaranty of such residence, and that the intention not to return to the country of adoption could not be formed or held to exist at any time before the expiration of that period. It is clearly stated in the fourth article of that treaty that the thing which is to operate as a renunciation of adoptive allegiance is a renewal of residence in the country of origin without an intent to return to the country of adoption. Such
intention not to return, it is provided, may be in ferred from a two years' residence. But this is merely a rule of evidence, establishing a prima facie presumption, and the intention not to return may be held to exist independently of the consideration whether that presumption has been created in the manner defined by the clause of the treaty in question.
“Any other interpretation of the treaty would lead to the manifestly untenable conclusion, for which the undersigned is unable to find any warrant, that the country of origin can not accept, at any time during the two years immediately succeeding his return thereto, the express declarations and unequivocal acts of a citizen or subject who has been naturalized abroad, as any evidence of his intention with respect to the duration of his stay.
"The position, however, of this Department is that there must be such declarations or such acts, in addition to the mere fact of return to the country of origin, in order to create or justify the conclusion that naturalization has been renounced; and that this question, which arises under a mutual convention and is of equal concern to both parties, is one for mutual consideration and discussion and concurrent decision.
“ In respect to the question of expulsion, it is maintained that, although it is not a question arising under the treaty, it is due to comity, as well as to the existence of the treaty, that reasonable grounds for expulsion should exist and be made known. The undersigned is unable to perceive the force of the observations contained in Mr. von Alvensleben's note, that the necessity and appropriateness of the course of the Imperial Government can be appreciated only from the standpoint of the internal policy of the Empire, if, as seems to be the case, it is intended to infer that the course of the Imperial Government in regard to expelling foreigners can not be made a ground for inquiry or complaint by the Government of such foreigners.
“The undersigned is unable to assent to this proposition; especially in view of the fact that, as the note of Mr. Von Alvensleben is understood, it admits that the Imperial Government regards as a sufficient cause for expulsion the fact that exemption from military service has been acquired by emigration and naturalization in the United States. The basis of the treaty of 1868 is understood to have been the mutual acknowledgment by the contracting parties of the right of self-expatriation, upon compliance with the conditions therein agreed upon and defined. Expatriation thus accomplished was to be mutually and equally acknowledged by both contracting parties, who covenanted to treat the naturalized citizens of each other on the same footing as native-born citizens. There was no limitation as to the age at which persons might emigrate from either
country and be naturalized in the other. It is, however, clear that to apply the fact that exemption from military service has resulted from emigration and naturalization abroad as a sufficient ground for expulsion, would be to destroy as to persons of a certain age the right of orderly return to and law-abiding sojourn in the country of origin, which is stipulated in the treaty of 1868 and may, within its plain meaning, be continued for more than two years; and in addition to creating a discrimination not contemplated by the treaty, would subject its construction wholly to the changing views and regulations of one of the contracting parties.
There is no disposition on the part of this Government to question the right of the Imperial Government to expel any foreigner who violates the laws or the policy of the Empire, or whose misconduct may cause his presence to be productive of disorder.
“ In this respect all citizens of the United States, whether native or naturalized, are held to the same accountability and stand on the same footing. But to concede that the fact of being a naturalized citizen of the United States, with the rights and'exemptions incident to such citizenship, may, irrespective of offense by word or deed or general course of misconduct, be held of itself as to a certain class of citizens of the United States a sole and sufficient ground for expulsion, would be equivalent to a deprivation of all right of sojourn and peaceable residence in the German Empire except under the most precarious and arbitrary limitations."
Mr. Bayard, Sec. of State, to Mr. von Alvensleben, German min., March 4,
1887, For. Rel. 1887, 419.
“ This subject [of expulsion is not regulated by the treaty in question with the North German Union, Feb. 22, 1868] and is not necessarily covered by any of its provisions. I say not necessarily, because the recognition of the right of return to and residence in the country of origin, which the treaty contains, implies that a person so returning and residing will not be expelled unless some reason for such a measure exists beyond the mere fact that he has expatriated himself. But this does not take away either from the United States or from Germany in respect of any class of persons, the general right which governments possess and which this Government freely exercises of expelling aliens whose presence is regarded as detrimental to the public interests. The existence of such a right is not questioned, and its exercise is not in itself a ground of complaint.
It is the method or manner of its exercise that may afford a ground for remonstrance. This is a question to be determined upon the facts of each case. It is undoubtedly the duty of all governments in asserting the rights that belong to them to do so with a just regard for the rights and interests of the persons who are affected, and to
this end to avoid harsh and arbitrary proceedings. But this is a question quite apart from that of the existence of the right."
Mr. Blaine, Sec. of State, to Mr. Schroeder, Jan. 11, 1890, 176 MS. Dom.
February 6, 1897, the royal Prussian ministers of justice, the
interior, and war, issued circular regulations touching Correspondence of the formal treatment of petitions for pardon sent in of 1897-1901.
by persons sentenced for evasion of military service. They made no change in the principles previously observed “in regard to the action of the police toward the persons in question, in particular to the treatment of former German subjects who have returned to Germany after naturalization in the United States of America."
March 29, 1897, the embassy of the United States at Berlin requested the Imperial secretary of state for foreign affairs to use his good offices to the end that the Royal Prussian Government might bring to the attention of the minor executive officials the circulars of the royal Prussian ministers of justice and the interior of July 5 and July 6, 1868, as well as the decision of the Imperial supreme court at Leipzig of January 20, 1896 (Entsch. d. R. G. in Strafs., Bd. 28, S. 127)," in order that naturalized American citizens of German origin may not be subjected to unnecessary annoyance and molestation by local authorities, on account of their having emigrated withcut permission or before performing military service in Germany, while sojourning in Germany upon their legitimate business, or while temporarily visiting their parents or relatives at their former homes."
The German Government replied that as the circulars in question had twice previously been brought to the attention of the proper authorities, and as the decision of the Imperial court (Penal Cases, vol. 28, p. 127) coincided with the principles laid down in the decrees, and as no violation of those principles was alleged to have occurred in any recent case, there did not seem to be sufficient reason for bringing them again to the attention of the authorities. “If naturalized German-Americans," said the German Government, “ were at different times sentenced for the violation of military duty, and these cases were made the subject of discussion, this was caused by the fact that the authorities did not know that those persons were naturalized in America, and the sentence was at all times revoked wherever this fact was established.
“ The undersigned permits himself to add that these decrees do not affect the rights of the local authorities to expel, for state police considerations, former German subjects who emigrated to America at or shortly before reaching the military age, and who, after naturalization there, returned to their native land, whenever they make themselves obnoxious or their presence seems undesirable for other reasons."
Baron Marschall, Imp. min. for. aff., to Mr. Uhl, Am. amb., March 27,
1897; Mr. Uhl to Baron Marschall, March 29, 1897; Baron Marschall to Mr. Uhl, April 1, 1897: For. Rel. 1897, 209, 210.
" Three different kinds of expulsion may be recognized in the precedents afforded by the recent history of Germany.
“ First. Each of the German States still retains the sovereign right of expulsion, so that a foreigner may, in certain cases, be expelled from one State, but continue to reside thereafter unmolested in another State of the Empire, his expulsion from the former only having effect in the territory within which the authorities of that State have jurisdiction.
“ Second. In certain other cases where the reasons for expulsion are such as would make the stay of the foreigner in any one of the States of the Empire objectionable, Imperial laws have been passed whereby an expulsion by the authorities of one State becomes effective not only in that State but within the whole Empire, thus effectually banishing the individual from Germany.
“ Third. There is another kind of expulsion which, though in form identical with that last preceding, is so different in its real nature as to warrant its treatment as a separate class, namely, the expulsion by the Prussian authorities of persons, either individually or en masse, for certain grave reasons of state, as examples of which may be mentioned the expulsion of Poles from certain German States, of Frenchmen and others from Alsace-Lorraine, and of inhabitants of Schleswig-Holstein. These expulsions have usually been carried out by Prussia or through Prussian initiative, and take the second form above given, but for reasons which concern not only Prussia but the whole of Germany. When it is remembered that Prussia is the leading member of the German Confederation, that the King of Prussia is the German Emperor, that the chief functionaries of the Kingdom are also leading officials of the Empire, and that an expulsion by these Prussian authorities is given effect as an expulsion from the Empire by virtue of Imperial laws passed for reasons of the Imperial welfare, it will be seen that they are in substance indirect expulsions by the Empire, though in form mere State expulsions effective throughout the other States.
* Referring to the first class above given, namely, expulsion by a State from its own proper territory only, I take Prussia as an example, and on referring to a leading authority on Prussian State law I find the statement: Measures of expulsion can be exercised against foreigners, partly for certain punishable acts which have been made