Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, with the Annual Message of the President, December 6, 1875, Volume I

No. 241.
Mr. Davis to Mr. Fish.

Legation of the United States,
Berlin, March 15, 1875. (Received April 2.)

No. 83.]

Sir: Referring to your No. 35, I am at last able to send the promised summary of the military laws of the empire.

From this it appears that every German is liable to serve in the army: first, for three years, from the commencement of his twentieth year, in active service; second, for four years more, as a reserve, being still on the army rolls and regarded as in active service, and liable at any moment to be recalled into the same; and, third, for a further term of five years, as a member of the landwehr. To this may be also added his duties as member of the landsturm, referred to in Mr. Coleman’s abstract.

A German emigrating before his liability to do military duty commences is nevertheless required by the law to report himself for military service on the prescribed day after he attains the requisite age, and without previous notice. If he does not so report himself, he renders himself liable to be proceeded against for failure so to do. Provisions are made for the service of process against him in his absence, and, where the preliminary steps are properly taken, the proceedings may be carried to final judgment, and he may be condemned in his absence to a fine or imprisonment. If he has left property here, the fine may be collected out of it. You will perhaps remember that such a fine was actually collected in Eobert Weidel’s case, while he was absent in America, but before he was naturalized.

* * * * * * * *

I have, &c.,

J. C. B. DAVIS.

[Inclosure 1 in No. 83.—Translation.]

SUMMARY OF THE MILITARY LAWS OF GERMANY.

The constitution of the empire of April 16, 1875, contains the following provisions with regard to military duty:

• Article 57. Every German owes military duty, without the right of substitution.
• Art. 59. “Every German owing military duty in general from his completed 20th to the beginning of his 28th year, belongs to the standing army; the first three years to the flag, the last four years to the reserve, and the following five years to the landwehr.”

With regard to emigration, the reserves are governed by the same provisions which obtain with regard to the emigration of the landwehr.

With regard to the duty of presenting oneself for duty, the military law of the empire prescribes as follows:

§ 10.“All those subject to military duty, who do not of their own free will enter the army, are, on and after the first of January of the calendar year in which they have completed their 20th year, subject to perform military service. They are obliged to present themselves for this purpose to the ‘ersatz-authorities’ until the question of their military service is decided in accordance with the provisions of this law; not oftener, however, than twice yearly.

§ 12.“Every person owing military service is obliged to present himself in the levy district in which he has his permanent residence; or failing that, a place of sojourn. Whoever within the limits of the confederation has neither a place of permanent residence nor a place of domicile, must present himself in the levy district of his birthplace; and if the birthplace be in a foreign country, in the levy district of this country in which his parents or the heads of his family had their last residence. In the levy district in which those owing military duty are to present themselves they will be also enrolled for military service, account being taken of the contingent of recruits to be raised therein.”

In the imperial penal code of May 15, 1871, the following provisions for the punishment of evasions of military duty are contained:

Art. 140. “Whoever seeks to evade entering the service of the standing army, or of the navy, either by leaving without permission the territory of the confederation, or, having attained the age for military service, by remaining without its territory, shall be punished by a fine of from fifty to one thousand thaler, or by imprisonment of from one month to a year.”

The property of the accused may be attached so far as in the opinion of the judge is necessary to secure the payment of the highest fine which may be imposed upon the accused, together with the costs.

Art. 142. Whoever intentionally, by self-mutilation or otherwise, makes himself unfit for military service, or allows himself to be made unfit by another, shall be punished by imprisonment of not less than a year, and may be adjudged to have forfeited his rights as a citizen. The same punishment shall be awarded to those who render another, at his request, unfit for the performance of military duty.

Art. 143. Whoever, with the view of evading military service, either in whole or in part, uses means calculated to deceive, shall be punished with imprisonment, and may be adjudged to have forfeited his rights as a citizen. The same penal provision applies to participants.

Art. 360, subdivision 3. “With fine not exceeding fifty thaler, or with imprisonment, shall be punished—3. Whoever, being on leave, and belonging either to the land or sea wehr, emigrates without permission.”

With regard to emigration, the confederation law of June 1, 1871, constituted an imperial law by article 81 of the imperial constitution 1, 24, contains the following provisions:

§ 13. Citizenship is henceforth only to be lost—

1. On motion.

* * * * * * *

§ 14. Release from citizenship is given by a release-document, to be made out by the higher tribunal of the native state.

§ 15. Such release will be granted to every citizen who proves that he has been admitted to citizenship in another state of the confederation.

In the absence of this proof it cannot be granted—

1. To persons liable to military duty, between the age of the completed seventeenth and the completed twenty-fifth year, who have not first produced a certificate from the circuit levy commission that they are not seeking a release merely for the purpose of withdrawing themselves from service in the standing army or in the navy.

2. To military persons who belong to the standing army or navy; to officers and officials before they have been discharged from the service.

3. Persons belonging to the reserve of the standing army and to the landwehr, as well as those belonging to the reserve of the navy and to the seawehr, and not holding the position of officers after they have been called into active service.

§ 17. From other reasons than those given in sections 15 and 16, discharges may not be refused in time of peace. For time of war or danger of war, the president of the confederation is privileged to issue particular instructions.

§ 18. The discharge-paper effects from the time of its delivery the loss of citizenship.

The discharge becomes ineffectual if he who is discharged does not within six months from the time of the delivery of the discharge-paper change his domicile to a place outside the territory of the union, or acquire citizenship in some other state of the union.

§ 19. The discharge comprehends, if no exception is made, also the wife and the minor children still remaining under paternal authority.

§ 20. Germans residing abroad may be declared to have lost their citizenship, by a resolution of the controlling authority of their native states, when in case of war, or danger of war, they fail to obey, within the period named, an express summons of the president of the union applying to the whole union.

§ 21. Germans who leave the union and reside uninterruptedly for ten years abroad, thereby lose their citizenship. The period above mentioned is computed from the time of leaving the territory, or if the person so leaving is provided with a traveling or home paper, from the time of its expiration. It is interrupted by entry in the records of a union consulate. Its course begins anew with the day following the cancellation in the records.

The loss of citizenship worked hereby extends to the wife and minor children remaining under paternal authority. As regards Germans who reside uninterruptedly at least five years in a foreign state, and there acquire citizenship, the ten years period may, by a stated treaty, be reduced to five years, irrespective of the parties being provided with traveling or home papers, or not.

Germans who have lost their citizenship by a ten years’ residence abroad, and have acquired no other citizenship, can be restored to their native citizenship even without being domiciled there.

Germans who have lost their citizenship by a ten years’ residence abroad, and thereupon return to the territory of the German union, acquire citizenship in that state of the union in which they have taken up their abode, through a certificate of the higher tribunal, which must be furnished on demand.

§ 22. When a German enters a foreign state’s service without permission of his government, the controlling authority of his native place may by resolution declare him to have lost his citizenship, provided he does not obey an express summons to leave such service within the period therein limited.

§ 23. If a German serves with a foreign power with permission of his government he retains his citizen snip,

The provision of subdivision 3 of § 21 has been embodied in the law of June 1, 1870, mainly with reference to the treaty of February 22, 1868, between the United States of America and the North-German Union, which is now operative throughout the whole German empire. In the said treaty the following provisions are to be particularly considered:

Article 1. Citizens of the North-German confederation who (have become or shall) 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. And, also—

“The declaration of an intention to become a citizen of one or the other country has not for either party the effect of naturalization.”

Article 4. If a German naturalized in America renews his residence in North Germany without the intent to return to America, he shall be held to have renounced his naturalization in the United States. And, also—

The intent not to return may be held to exist when the person naturalized in the one country resides more than two years in the other country.

The course of proceeding against those who have emigrated to avoid military duty, whether they have already been pronounced able-bodied for military service or not, or whether they be “landwehrmen” or “reserveats,” is regulated by the law of January 3, 1849, and the supplementary law of May 3, 1852. Of prominence are the following provisions:

I.—From the law of May 3, 1852.

Art. 35. * ** * * Should, however, the state’s attorney, for particular reasons deemed sufficient in his discretion, move that proceedings in contumaciam be taken, the proper tribunal must institute the same and issue the summons.

Art. 46. If the proceeding is to be had before the “court division” or the police justice, the published summons must contain the following:

a. Full name, age, residence, position, or trade of the accused as far as known;

b). The character of the punishable act which constitutes the subject of the accusation;

c. A notice of the period fixed for the trial, and the summons and warning contained in§ 32 of the law of January 3, 1849.

Art. 47. This summons is to be hung out at the place of holding court at the seat of the court having jurisdiction, to be inserted three times in the official paper, and in the discretion of the court also in another domestic paper. The time for trial is to be so appointed that a period of at least one month must elapse between the final insertion in the newspapers and the trial.

Art. 48. If the trial is adjourned, the resolution declaring the same is only to be made known in a public sitting.

Art. 49. The judgment, without the reasons therefor, however, is to be made known by public posting at the place of holding court. The judgment having been thus posted for fourteen days, the service of the same upon the accused is to be regarded as properly effected.

Art. 50. In all cases in which any further service of summons cannot be effected in the manner prescribed by law with his own country upon an accused person already legally summoned to the trial in the first instances, the service is to be considered duly effected when the document to be served shall have been posted for 14 days at the place of holding court. Judgments are posted without reasons; there is, in such cases, no necessity for written justifications.

II.—From the law of January 3, 1849.

§ 32. * * * * The accused is to be warned that in case of his non-appearance the trial and decision are to be had in contumaciam. The minor details of the legal provisions are contained in the law concerning proceedings against emigrants owing military duty, and against furloughed landwehrmen who have emigrated without permission of March 10, 1856.

I.—Of the proceedings against emigrated persons owing military duty.

§ 2. The authorities vested with the control of persons owing military duty are bound to make careful inquiries, particularly of the respective local authorities, of the relatives and of the guardians concerning the place of domicile of such persons owing military duty as do not appear at the revisions ordered by them, or who are announced as absent.

§ 3. Are these inquiries fruitless, or do they result in showing that such person has left the royal dominions without permission, the land-police authorities must, on the basis of the proceedings handed them, make out a declaration as follows:

1. That such person has not appeared at such revisions so ordered;

2. That the place of his domicile within the country cannot be discovered; and,

3. That notwithstanding the inquiries made, no circumstances have appeared which exclude the assumption that such person has quitted the royal dominions without permission, and has thereby sought to withdraw himself from service in the standing army.

§ 4. The declaration of the land-police tribunal is to be transmitted to the states attorney of the court of the last place of residence, or of the last place of customary domicile. On the basis of this declaration the states attorney shall immediately move the seizure of the property according to section 110 of the penal code, and to cause criminal proceedings to be instituted by a public summons.

§ 5. These proceedings can be simultaneously directed against several persons, and the trial of them proceed jointly.

§ 6. As regards the summoning of the accused and the serving of summons upon them the following applies: The provisions of articles 46 to 50, inclusive, of the law of May 3, 1852, concerning additions to the law of January 3, 1849, and in the circuit of the court of appeals at Cologne the provisions of articles 10 to 13, inclusive, of the law of May 11, 1855, concerning the altering of several provisions relating to judicial procedure.

A copy of the summons, however, is to be sent the accused by mail if his place of domicile is known. A certificate that such course has been pursued is not needed.

§ 7. During the period of verbal conduct, and in the further proceedings, the accused who has not appeared may be represented.

As representatives are admissible:

1. Persons authorized to conduct a defense.

2. Guardians, relatives in the ascending and descending line. Wives and brothers and sisters of the accused without being provided with, special authority for such purpose.

§ 8. Sentence follows upon the ground of the declaration issued by the land-police tribunal, unless it be shown that the accused has not left the royal dominions without leave, or that circumstances exist which forbid the assumption that he has thereby sought to evade entering the service of the standing army.

§ 9. If an adjournment of the oral proceedings be necessary, in order to take proof held admissible on this point, the case is to be separated from others with which it is being jointly conducted, and to be decided separately. This course is also pursued when such separation is deemed advisable for other reasons.

II.—Of the proceedings against landwehrmen on leave who emigrate without permission.

§ 10. The institution of proceedings against landwehrmen on leave who emigrate without permission is founded upon the declaration of the landwehr tribunal:

1. That a ‘domestic place of sojourn of such landwehrman has not been discovered.

2. That permission to emigrate has not been granted him.

3. That notwithstanding the investigation made, no circumstances have appeared which exclude the assumption that he has emigrated.

§ 11. Sentence follows upon the basis of this declaration, if circumstances adverse to such declaration are not shown.§ 4, 5, 6 and 7, and 9 also find application here.

There are wanting legal provisions as to what is to be held in the case of a person sentenced for unallowed emigration who afterward returns to Germany as an American citizen.

Punishment can only be remitted by way of grace, and the court having jurisdiction must, upon the request of the condemned, report officially to the minister of justice concerning the remission of the punishment and costs by way of grace. This can, however, only be done when the person so returning has acquired citizenship in the United States in accordance with article 1 of the treaty of February, 1868.

If a German not yet naturalized in the United States of America returns to Germany, or if a German so naturalized re-acquires naturalization in Germany, and he is still within the age of military duty, (has not yet completed his thirty-first year,) he is not legally protected against being still drawn into military service.

The § 11 of the imperial military law of May 2, 1874, prescribes as follows on this point:

§ 11. Persons who have left the imperial dominions, and have lost their imperial citizenship, but have not acquired citizenship in another state, or have lost the same again, are, if they take up a permanent residence in Germany, under obligation to present themselves, and are liable to be still enrolled, but yet cannot, in time of peace, be held to service beyond their completed thirty-first year.

The same holds good as to sons of persons who have emigrated and returned to the German Empire, provided such sons have not acquired foreign citizenship.

The aforegoing provisions also apply to emigrants who, while they have acquired foreign citizenship, yet return to their German allegiance before their completed thirty-first year.