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. 247.
Mr. Fish
to Mr. Davis.
Washington, July 13, 1875.
Sir: Referring to your dispatches in reference to the case of Arthur Steinkauler, and to instruction No. 95 from the Department, I now inclose you a copy of a communication addressed to the Attorney General, under date of June 9, requesting his opinion upon certain specific points, and of the opinion of that officer, bearing date the 26th of June, for your information.
The opinion goes somewhat further than the precise questions submitted, and refers to the matter of the duty of this Government to intervene, which would only arise after the questions submitted had been passed upon.
You are instructed to take no steps to intervene with the authorities of Germany to protect young Stein kauler from military duty, so long as the facts of his case remain unchanged and he shall be a minor residing with his father, a German subject, and in the absence of any assurance on his behalf of an intention to return to the United States, or to make an election of nationality.
I am, &c.,
Mr. Fish to Mr. Pierrepont.
Washington, June 9, 1875.
Sir: I have the honor to submit the following facts for your consideration and opinion:
One A. Steinkauler, a Prussian subject by birth, emigrated to the United States in 1848, and became naturalized in this country in 1854. In 1855, a son was born to him at Saint Louis, Mo. Mr. Steinkauler returned in 1859 with this infant son, and the remainder of his family, to Germany, and became domiciled at Wiesbaden, in Nassau, where they have all continuously resided from that time. In 1836, Nassau became incorporated into the North German Confederation. In 1888, the treaty of naturalization with North Germany was concluded, article 4 of which provides as follows: “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.* * * 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.”
Mr. Steinkauler, having continuously resided at Wiesbaden since 1859, admits that, under the operation of article 4 of this treaty, he may be held to have abandoned his naturalization in this country.
His son, born in Saint Louis, has now reached the age of twenty years, and has lately been called upon to report for military duty by the authorities of Germany. Mr. Steinkauler thereupon invoked the intervention of the legation of the United States at Berlin, on the ground that he is a native-born American citizen.
To an inquiry by Mr. Davis, our minister at Berlin, whether the son would give an assurance of intention to return to this country, within some reasonable period to be fixed by himself, and to reside here, and assume his duties as a citizen, the father, on his behalf, declined to give any such assurance.
I have the honor to request your opinion upon this state of facts, whether this son of Mr. Steinkauler, who is still a minor, is to be deemed a citizen of the United States, entitled to the intervention of this Government on his behalf with the government of Germany, or whether, by reason of his minority, his citizenship follows that of his [Page 564] father, who has now admittedly acquired the character of a German subject, or whether in any way, by reason of continued residence or absence of intent to return to the United States or otherwise, he has become expatriated or lost his character of a citizen of the United States.
I have the honor to be, sir, your obedient servant,
The Hon. Edwards Pierrepont,
Attorney-General.
Mr. Pierrepont to Mr. Fish.
Washington, June 26, 1875.
Sir: The facts upon which the Secretary of State asks the opinion of the Attorneys General are these:
Mr. A. Steinkauler, a Prussian subject by birth, emigrated to the United States in 1848, became naturalized in 1854, and in the following year had a son born in Saint Louis, Mo.
Four years after the birth of his son, Steinkauler returned to Germany, taking his family, including this infant child, and became domiciled at Wiesbaden, where they have all continuously resided. Nassau, in which Wiesbaden is situated, became incorporated into the North German Confederation in 1886. This son has now reached the age of twenty years, and the German government has called upon him to report for military duty. Mr. Steinkauler thereupon invokes the intervention of the legation of the United States at Berlin, on the ground that his son is a native-born American citizen.
“To an inquiry by Mr. Davis, our minister at Berlin, whether the son would give an assurance of intention to return to this country, within some reasonable period to be fixed by himself, and to reside here and assume his duties as a citizen, the father, on his behalf, declined to give any such assurance.”
The question is, whether upon the facts stated, it is the duty of the Government of the United States to interfere in this matter?
opinion of the attorney-general.
The status of young Steinkauler, and his right to protection from the Government of the United States, depends primarily upon his nationality. Nationality is either natural or acquired.
The one results from birth, the other from the operation of the laws of kingdoms or states.
Nationality by birth in some countries depends upon the place of birth, in others upon the nationality of the parents. There is no uniform rule of international law upon the subject, nor is there any treaty between the United States and North Germany, or any statute or rule of common law either in North Germany or the United States, (so far as I can find,) which solves the question submitted. In North Germany, as in the United States, the minority of the child continues until the age of twenty-one years; and minor children of naturalized parents domiciled and living with such parents in North Germany, though such minor children were born in the United States, are made German subjects with the rights of German citizens, much the same as minor children of naturalized parents (though the children are foreign-born) are rendered citizens of the United States by the naturalization of the parents of such minors.
In 1868 the naturalization treaty between North Germany and the United States was concluded. Article 4 reads as follows:
“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.* * * 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.”
Section 1999 of the Revised Statutes of the United States reads as follows:
“Whereas the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness; and whereas, in the recognition of this principle, this Government has freely received emigrants from all nations, and invested them with the rights of citizenship; and whereas it is claimed that such American citizens, with their descendants, are subjects of foreign states, owing allegiance to the governments thereof; and whereas it is necessary to the maintenance of public peace that this claim of foreign allegiance [Page 565] should he promptly and finally disavowed: Therefore, any declaration, instruction, opinion, order, or decision of any officer of the United States which denies, restricts, impairs, or questions the right of expatriation is declared inconsistent with the fundamental principles of the Republic.”
Under the treaty, and in harmony with the American doctrine, it is clear that Steinkauler the father abandoned his naturalization in America and became a German subject, (his son being yet a minor,) and that by virtue of German laws the son acquired German nationality. It is equally clear that the son, by birth, has American nationality, and hence he has two nationalities, one natural, the other acquired.
Difficulties like the one we are now considering, and which arise from double nationality, have recently been disposed of in England by Statute 33d Victoria, A. D. 1870, chapter 14, section 10, sub. 3.
“3. Where the father, being a British subject, or the mother, being a British subject and a widow, becomes an alien in pursuance of this act, every child of such father or mother who, during infancy, has become resident in the country where the father or mother is naturalized, and has, according to the laws of such country, become naturalized therein, shall be deemed to be a subject of the state of which the father or mother has become a subject, and not a British subject.”
We have no such statute, and we must therefore seek some other mode of solving this somewhat difficult question. Young Steinkauler is a native-born American citizen. There is no law of the United States under which his father or any other person can deprive him of his birthright.
He can return to America at the age of twenty-one, and in due time, if the people elect, he can become President of the United States; but the father, in accordance with the treaty and the laws, has renounced his American citizenship and his American allegiance, and has acquired for himself and his son German citizenship and the rights which it carries, and he must take the burdens as well as the advantages. The son, being domiciled with the father, and subject to him under the law during his minority, and receiving the German protection where he has an acquired nationality, and declining to give any assurance of intention of ever returning to the United States and claiming his American nationality by residence here, I am of opinion that he cannot rightfully invoke the aid of the Government of the United States to relieve him from military duty in Germany during his minority. But I am of opinion that when he reaches the age of twenty-one years he can then elect whether he will return and take the nationality of his birth, with its duties and privileges, or retain the nationality acquired by the act of his father. This seems to me to be “right reason,” and I think it is law. Since reaching the above conclusions, I am gratified to find a measure of support in the great authority of the present Lord Chief-Justice of England. In his work on “Nationality “he says, at page 212: “As regards the children, those born after the naturalization should, of course, follow the nationality of the, father. Of those born before, a distinction should be made between those who accompany the father to the new country and those who do not. The latter should retain their nationality of origin. As regards the former, a distinction is again to be made between those who have attained their majority and those who have not. Those who are still minors, and who, as such, are still subject to the authority of the father, and form part of his family, must be taken, at all events for the time, to follow his nationality; and as it may fairly be presumed that they will, in the future, remain in the new country, and desire to become its citizens, they should be deemed to be such in the absence of any declaration to the contrary. But, inasmuch as by their birth they have acquired a right to the nationality of the country of birth, it ought not to be in the power of the parent to deprive them of it if, on arriving at full age, they desire to retain it, and a reasonable time should be allowed them to reject the nationality acquired by the father, and to claim that of the former country without being subjected to the necessity of becoming naturalized in it.”
While the Government of the United States, with jealous care, will protect its humblest citizen, wherever found, yet, in the opinion of the Attorney General, it is not our duty to aid a young man of twenty years to escape from military service in a government whose protection he has enjoyed since four years old, and where he has an acquired nationality which he does not propose to give up, and when interrogated by the envoy of the American Government, declines even to suggest that he ever intends to return to the United States and reclaim the nationality and assume the duties of an American citizen.
Protection from a government involves the reciprocal duty of allegiance and service from the citizen, when needed. In the case presented I see no occasion for interference on the part of the American Government.
Which is respectfully submitted.
Attorney-General,
The Hon. Hamilton Fish,
Secretary of State,