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In 1887 the American legation in Paris presented to the foreign office the case of J. C. Carlin, a naturalized American citizen of French origin, who, prior to his naturalization, deserted from a French merchant vessel in the United States, and who desired to return to France for the purpose of visiting his family. The French foreign office, in its reply, besides referring to the charge of desertion, stated that Carlin belonged to the class of 1876, and, as he did not respond to the call for the army, he was declared, February 15, 1878, to be in a state of insubmission. He was therefore, said the foreign office, subject to two penalties, (1) imprisonment from one to three months for the desertion (art. 66, decree and law of March 24, 1852); (2) imprisonment from one month to one year for insubmission (art. 61, law of July 27, 1872). These two offences being successive could not fall under the law of limitation, and, as there was nothing in Carlin's prior conduct to justify a favor, permission for his return was refused.
Mr. Vignaud, chargé at Paris, to Mr. Bayard, Sec. of State, Sept. 5, 1887,
For. Rel. 1887, 351.
Naturalization can not retroactively affect a penalty imposed before the naturalization took place.
Mr. Adee, Act. Sec. of State, to Mr. Kunze, Aug. 3, 1897, 220 MS. Dom.
Referring to the case of Efraim Rubin, a naturalized citizen of the United States of Austrian birth, who was arrested in his native country for nonperformance of military service, but afterwards released, and who claimed $9,000 as damages on account of his arrest and imprisonment, and $3,000 in addition by way of solatium, the Department of State said: “It is not the practice of the Department to present claims arising out of the military arrest and detention of naturalized American citizens who return to the country of their birth."
Mr. Adee, Acting Sec. of State, to Mr. Harris, min. to Austria-Hungary,
Sept. 20, 1899, For. Rel. 1899, 75. See, to the same effect, Mr. Hill,
349. The same rule is laid down in Mr. Hill, Assist. Sec. of State, to Mr. Kar
lovec, Nov. 21, 1898, 232 MS. Dom. Let. 614. For a contrary view, in certain earlier instances, see Mr. Fish, Sec. of
State, to Mr. Davis, min. to Germany, Nov. 21, 1876, MS. Inst. Germany, XVI. 264; Mr. Evarts, Sec. of State, to Mr. White, min. to Germany, June 26, 1879, id. 477; and Mr. F. W. Seward, Acting Sec. of State, to Mr. White, min. to Germany, August 27, 1879, MS. Inst. Germany, id. 505.
2. GERMAN TREATIES.
(1) MILITARY CASES.
“ The information given below is believed to be correct, yet is not to be considered as official, as it relates to the laws and regulations of a foreign country.
“A German subject is liable to military service from the time he has completed the 17th year of his age until his 45th year, active service lasting from the beginning of his 20th year to the end of his 36th year.
“A German who emigrates before he is 17 years old, or before he has been actually called upon to appear before the military authorities, may, after a residence in the United States of five years and after due naturalization, return to Germany on a visit, but his right to remain in his former home is denied by Germany, and he may be expelled after a brief sojourn on the ground that he left Germany merely to evade military service. It is not safe for a person who has once been expelled to return to Germany without having obtained permission to do so in advance. A person who has completed his military service and has reached his 31st year and become an American citizen may safely return to Germany.
“ The treaties between the United States and the German States provide that German subjects who have become citizens of the United States shall be recognized as such upon their return to Germany if they resided in the United States five years.
“ But a naturalized American of German birth is liable to trial and punishment upon return to Germany for an offense against German law committed before emigration, saving always the limitations of the laws of Germany. If he emigrated after he was enrolled as a recruit in the standing army; if he emigrated while in service or while on leave of absence for a limited time; if, having an unlimited leave or being in the reserve, he emigrated after receiving a call into service or after a public proclamation requiring his appearance, or after war broke out, he is liable to trial and punishment on return.
“Alsace-Lorraine having become a part of Germany since our naturalization treaties with the other German States were negotiated, American citizens, natives of that province, under existing circumstances, may be subjected to inconvenience and possible detention by the German authorities if they return without having sought and obtained permission to do so from the imperial governor at Strassburg.
" The authorities of Würtemberg require that the evidence of the American citizenship of a former subject of Würtemberg which is furnished by a passport shall be supplemented by a duly authenti
cated certificate showing five years' residence in the United States, in order that fulfillment of the treaty condition of five years' residence may appear separately as a fact of record.
"A former German subject against whom there is an outstanding sentence, or who fears molestation upon return for an offense against German law, may petition the sovereign of his native State for relief, but this Government can not act as intermediary in presenting the petition."
Circular notice, Department of State, Washington, Jan. 23, 1901, For.
Rel. 1901, 160.
but with desertion, remains liable to punishment under Art. II of the
Natives of Würtemberg, who, after being naturalized in the United States, return to their native country, should carry not only American passports, but also their certificates of naturalization. The certificate should be authenticated by the German consul nearest the person's home, and if, as is often the case, it does not state that he has lived five years uninterruptedly or continuously in the United States, he should take with him a written statement that he has so resided, signed and sworn to by two friends before a notary, and the signature of the notary should be acknowledged by the German consul. Besides, if the person in question was not naturalized in his full and exact baptismal na ne, he should take with him another statement, sworn to and acknowledged in the same manner, to the effect that “Henry who was naturalized on 18—, before the court of at is identical with Heinrich C.
G. [or whatever the name may be], son of and
who was born at
Mr. Johnson, consul at Stuttgart, to Mr. Uhl, Sept. 18, 1895, For. Rel. 1895,
1896, For. Rel. 1895, I. 520–523.
In Germany it is the practice of the local authorities to keep records of the birth and whereabouts of all residents, and it is the duty of every German, upon changing his residence, to inform the authorities, of both his old and his new home, of the fact. From time to time notices are issued for all males of a certain age to report for examination as to fitness for military service. If, after a certain time, anyone has not reported, a judgment of fine or imprisonment, or both, is taken against him and is executed whenever possible. It is this that gives rise to the frequent so-called “ military cases.” If the person against whom such a judgment is sought to be executed satisfies the local authorities that he has acquired another nationality or has lost his German nationality, his name is stricken from the list of persons liable to military service, or the judgment is canceled, as the case
By section 1 of the law of the North German Union of June 1, 1870, which was extended, April 22, 1871, to the German Empire, German nationality is acquired through the acquisition of citizenship of any of the federated States and is lost with the loss of such citizenship. By this law the German nationality is lost by ten years' residence abroad, and this loss may be attested by a certificate issued by the authorities of the State of which the individual was a citizen.
For. Rel. 1896, 213–215.
For annual reports on "military cases" in Germany, see the volumes of Foreign Relations of the United States, under the title Germany."
Robert Weidel, a native of one of the States composing the North German Union, emigrated to the United States in 1868, and in 1873 became a citizen. In 1871 a fine of 50 thalers was imposed on him in Germany, and was paid by his father. In 1874, on his return to Germany, he was arrested. Representations were made by the American legation, and he was released; but repayment of the fine was refused, on the ground that when he emigrated he had already become liable to military service, and that by his emigration he violated the penal law, in consequence of which he was fined before he became an American citizen. On this statement, Mr. Fish held: “If such fine could be lawfully imposed in his absence (and the voluntary payment thereof by his father seems to recognize it), it is difficult to see how his having become a citizen of the United States two and a half years thereafter could give him the right to reclaim the amount
In granting the high privilege of its citizenship, the United States does not assume the defense of obligations incurred by the party to whom it accords its citizenship prior to his acquisition of that right, nor does it assume to become his attorney for the prosecution of claims originating prior to the citizenship of the claimant."
Mr. Fish, Sec. of State, to Mr. Davis, min. to Germany, Nov. 24, 1874, MS.
Inst. Prussia, XV. 570. In the course of the instruction, Mr. Fish said: “ It would be captious to say that this act, viz, his leaving his native
country in violation of its laws, was not prior to his emigration. It was a statutory offence, and as concerns him, and his native country, it was committed before he reached the territory of the United States, or could claim any protection from this Government. It would be alike against the comity and friendship due to another and a friendly state, and to the spirit of the treaty, and to the interests of the United States, that this government should assume the defence of those thus violating the enactments of their native land, or should
encourage, by its protection, the recurrence of any violations of the
laws which a friendly power prescribes to its citizens. " It would seem clear, therefore, that the act alleged against Weidel is
one for which, under the treaty, a German naturalized in this country remains liable to trial and punishment on his return to his native
land. * But in this case it is not necessary now to decide this general or ab
stract question. The fine had been imposed on Weidel, and was actually paid in February, 1871, two and a half years before he be. came a citizen of the United States."
Henry Mumbour, a native of Prussia, entered the army in 1864 and served three years, and was then placed on the reserve rolls. April 1, 1869, in time of peace, he obtained leave of absence for a year and came to the United States. He remained beyond the expiration of his leave; and in the summer of 1870, when the FrancoGerman war began, and the reserves were called out, was summoned by proclamation to present himself for duty, on pain of being declared a deserter. Knowledge of the proclamation reached him at Pittsburg. He did not respond, but appears then or afterwards to have determined to become a naturalized citizen, which he did at Cleveland, Ohio, in June, 1874. In the following September he returned to Germany, where he was arrested and condemned to a year's imprisonment for desertion. On his trial he admitted that he intended to remain in Germany indefinitely, and had no intention of living permanently in the United States, and the circumstances indicated that his object in becoming naturalized in the United States was to gain protection against prosecution for failing to obey the summons of 1870 when he should return to Germany. The German Government took the ground not only that his admission or declaration of a want of intent to return to America operated as a renunciation of his naturalization, but also, though less clearly, that he was not entitled to the benefit of the provisions of the treaty of 1868 against prosecution for offences occurring after emigration. In reporting the case to the Department of State, Mr. Davis, who was minister to Germany, expressed the opinion that, during the three years in which the German may be in active service, his departure might properly be held to render him liable to punishment for desertion, and that a similar rule might apply where the reserves were actually called out; but that in time of peace, when the reserves were not on duty, the members were free to emigrate to the United States. Mr. Fish, after an examination of the correspondence leading up to the treaty, of the debates in the diet, and of the circulars of the ministers of justice and of the interior of July 5 and 6, 1868, expressed the conclusion that a person“ having served the required three years and being placed on the reserve rolls, having emigrated in time of peace, when no exist