Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Second Session of the Fortieth Congress
Mr. Bancroft to Mr. Seward.
Sir : I enclose herewith a long communication, of October 25, from Prince Hohenlohe, containing the decision of the Bavarian government with regard to Mr. Bardroff, whose case was, under your instructions, brought by my predecessor and by myself to its attention. You will judge whether the American views of the rights of emigrants have already been sufficiently stated, and whether any further effort is to be made to reverse the decision or to protest against it, or to reply to Prince Hohenlohe. Meantime I venture to offer two or three remarks.[Page 596]
Bavaria, as one of a family of states, cannot make international law, but ought to weigh the principles of the Roman law and the modern law of France, Belgium, Switzerland, &c. Next, a treaty of Bavaria is a law of Bavaria, and with the first article of the treaty between Bavaria and the United States of January 21st, 1845, before him, it seems to me Prince Hohenlohe has no right to say that emigration (Auswanderung) is unknown to the laws of Bavaria.
Further : the sixth article of the same treaty recognizes, not that Bavaria has the right to prevent emigration, but only that the question of right should remain unaffected by the treaty, leaving to America liberty to deny the right before and after.
The position is perfectly sound that an emigrant, up to the moment of naturalization, is free to change his purpose, and I regard it just as you, from your note to the Bavarian consul at Milwaukee, seem to have done, as liberal on the part of the Bavarian government that it recognizes naturalization as a bar to all future claims of the original country on the emigrant. The question with Bavaria is, therefore, limited to the state of the emigrant between the time of his emigration and the perfecting of his naturalization ; and, as in Prussia and in Austria, citizenship may be acquired immediately, the Bavarian rule would work very unequally as between a Bavarian emigrating to Prussia or Austria and a Bavarian emigrating to the United States.
Awaiting your instructions, I remain, sir, yours, sincerely,
Hon. William H. eward, Secretary of State, Washington, D. C.
Prince Hohenlohe to Mr. Bancroft.
Right Honorable Mr. Minister: I have had the honor to receive the letter of reply which your honor addressed to me on the 3d instant in the matter of Wilhelm Bardrofí. The receipt of it gives me the greater satisfaction because it affords me the agreeable opportunity to discuss in the contents of this letter the agitated question of principle with a statesman whose well known depth of penetration generally and present political position in particular will, I do not doubt, aid in correcting at once opinions which can have been based only upon false premises.
It is with this view I should like to be permitted, in the first place, to ask your honor to waive, the precedents of ancient Rome regarding this question and those of the cabinets of the Tuileries and St. James, and to confine yourself in the matter under consideration exclusively to the aspect presented by the respective legislation of Bavaria and the United States.
I have had already the honor to show, in my letter of the 25th ultimo, that a citizen cannot lose his quality as such, that is to say cannot be regarded as emigrated until he has passed completely into the allegiance or citizenship of another country, and that any length of absence from his native country cannot of itself deprive him of his allegiance here. When, therefore, your honor, in your esteemed note of the 3d instant, remarks that “emigrant” and “naturalized citizen” cannot be regarded as synonymous terms, you will allow me, Mr. Minister, to remind you that the legislation concerning citizenship does not recognize the word “emigrant” in the definition given of it by your honor, since a purely literaI emigration is entirely foreign to that legislation ; and that for this reason, a notice, however unequivocal, on the part of the person concerned, of the animus non amplius revertendi, cannot deprive him of his right to return at any time to Bavaria.
On this last point, I deem it my duty to give your honor, in the annexed copy, information of the instruction which on the 2d of September, 1863, was issued to the consul of this government at Milwaukee, and to which the reply of Mr. Secretary of State W. H. Seward, already communicated to you, refers. Even otherwise, there cannot be the least doubt that during a longer or shorter absence from his native country a person cannot be considered as freed from his obligation to fulfil the duties imposed upon him by the legislation of the country of his nativity.
To enter into a comparison or criticism of the respective laws of the two countries would appear an idle task ; from the fact that the subject in point is to be discussed between the governments of states both of which subscribe to the constitutional principle, it would rather seem sufficient not to lose sight of the circumstance that, according to the law, every citizen [Page 597]is bound to carry arms for his native country ; and that the time at which the Bavarian has to perform that duty is the beginning of the year during which he accomplishes his twenty-first year.
Therefore the law states, in the first place, that a Bavarian in the given case must defend the integrity of his country with his own hands, and that he should not do it by means of a foreign hireling ; further, that, at least for the time, the above-mentioned age shall be held fittest in Bavaria to prepare for that purpose ; and finally that the country expects every person who enters upon that age to perform the duty in question without fail.
Although it involves the performance of one of the most sacred duties of a Bavarian subject, nevertheless this circumstance even had not the power to move the law of the kingdom to chain the subject (Staatsangehœrige) at all events, to his native country until the time should arrive when he would have to perform the duty in question ; for though any Bavarian subject who can show that he has performed the military duty of his country and prove his eventual reception into another allegiance, may emigrate without hindrance, the law of Bavaria evidences no less liberality with regard to such subjects as have not yet reached the age at which their conscription obligation accrues, in that, as I have just had the honor to say, it will just as little obstruct the emigration of these subjects, that is, their change into another allegiance, if that change can be effected before the setting in of the before-mentioned age.
Your honor will perceive from the above that the question in point is simply the period of acquisition of the changed nationality on the part of the hitherto Bavarian subject. For instance, in Prussia and Austria a foreigner may acquire citizenship immediately, and therefore nothing can prevent the emigration to those states of such Bavarian subjects as have not yet reached the age at which their conscription obligation accrues, provided they have previously obtained the consent of the legal guardians to the purpose in question. Where, however, the emigration of a Bavarian subject for the United States of North America, for France, &c, is concerned, it becomes an important consideration that, in the two countries mentioned, persons immigrating of their own accord can, under the most favorable circumstances, become naturalized only after a residence in the country of five and ten years respectively, and that not until they have become of age. But it is in the very beginning of the year in the course of which the Bavarian subject becomes of age—that is, reaches the 21st year— that the state of Bavaria, as already stated above, counts with certainty on its able-bodied men; so that, according to the provisions of the law, a person who may not yet have reached the age when his military service is due, viz., when he has to answer the call for actual military service, is obliged, if he desires to emigrate, to furnish a substitute, if he has reached the age when his conscription obligation accrues and he has been declared fit for service.
In transmitting to you, your honor, herewith in addition two further copies of notes which my predecessor addressed on the 10th of October of last year, on the subject of the military duty of Adolph Lutz, of Obermoschel, and I, on the 10th instant, in regard to the military duty of Johann Lorenz, of Odernheim, to the United States consul at this place, Mr. H. Toomy, I flatter myself that this information will only add to remove the last doubts which you, Mr. Minister, might possibly still entertain concerning the above.
Finally, in respect to the statement of your honor in the note of the 3d instant, according to which a counter statement to the views of American statesmen would easily tend to destroy the right of emigration itself, I permit myself to add the following remarks from my point of view for your judicious consideration :
Whilst there is, as I have already had the honor to state above, at the present moment, under the proper limitations, no obstacle in the way of emigration to all countries from Bavaria, that emigration cannot generally be said to be considerable.
On the other hand, among the countries to which this emigration is mainly directed, the Union occupies the first position, so that the emigration for the United States, as compared to that of other countries, bears a proportion of at least twelve to one ; that according to this the greatest amount of property is also carried to America will require no further proof, whilst it is certain that the wealth moved out of this kingdom in this manner for the United States is not equalled by far by that brought to Bavaria from the United States.
It cannot be unknown to your honor that article VI of the extradition convention of 1845, between the government of Bavaria and of the Union, says as follows :
“But this convention shall not derogate in any manner from the force of the laws already published or hereafter to be published by his Majesty the King of Bavaria, to prevent the emigration of his subjects.”
Now, have the above stated circumstances caused the government of Bavaria to take advantage of the rights conceded to it by treaty by the government of the Union, and to obstruct the emigration for the United States ?
By no means! On the contrary, the government of the King cannot deny itself the satisfaction of saying, that for its part it has diligently embraced every opportunity to strengthen and promote the friendly relations which so happily exist between the two states, as it has afforded to it a more especial gratification that the construction of the law enabled it to issue the above-mentioned instruction to the King’s consul at Milwaukee.
Concerning, finally, the especial matter of Wilhelm Bardroff, I do not doubt that the premised statement will have convinced your honor that this individual has positively infringed the laws of his former country, and has avoided an actually ripened obligation.[Page 598]
I had already the honor to remark, in my note of the 25th ultimo, that Bardroff was sentenced in 1864 to the legal punishment and consequences of refractoriness.
As a special consequence, would appear the sequestration of all the property of the said Bardroff.
That punishment is based upon sections 79-82 of the supplemental army law of the 15th August, 1828, and can the less be recalled on account of the naturalization of Bardroff in the United States, as the latter had at the time already entered upon the age when his conscription and military obligations had accrued, and could not, according to section 67 of the above-mentioned law, even in the case of an authorized emigration, free himself of his military obligation to his country, except by previously furnishing a substitute.
Regretting that I am obliged to add that, according to the opinion of the King’s ministry of the interior, the case of Bardroff is bereft of every motive, even for his pardon, I beg your honor to accept the renewed assurance of my most distinguished consideration.
Mr. G. Bancroft, the Envoy Extraordinary and Minister Plenipotentiary of the U. S. of N. A. to the Royal Court of Prussia, at Berlin.
Baron Pelkoven to Baron Von Baumbach.
Much-honored Baron: The acquisition of citizenship in the United States of North America has, among others, the condition of a previous so-called declaration of intention attached to it.
The party concerned declares thereby, under oath, that it is his deliberate intention to become a citizen of the United States, and that therefore he renounces forever his former allegiance to the potentate of his country.
According to the laws of the kingdom, however, the citizenship in Bavaria is only lost by a naturalization elsewhere ; therefore this declaration of itself does not constitute an objection to the unobstructed return of the party concerned to Bavaria, and his resumption of the uninterrupted quality of Bavarian subject.
On the contrary, the Bavarian government can see nothing more in this declaration than a fulfilment of an invariable condition of naturalization in the United States on the part of the person concerned, and regards him as continuing uninterruptedly in his allegiance to the State of Bavaria, with reference to his obligations towards it, notwithstanding the declaration ; so that, for instance, proceedings according to the law in the premises may be at once commenced against a person so returning to Bavaria who has not completely complied with the military obligation resting upon him.
It will therefore follow from this that the Bavarian government does not deem itself authorized to call in question the power of the government of the Union to offer to an individual who has declared before the competent authority under oath that it is his deliberate intention to become a citizen of the United States, and that he therefore renounces, with that intention forever, his former allegiance to the potentate of his country, the alternative to prove the honesty of that intention, by the proper act, or to depart from the United States.
According to the report of your honor of the 28th June instant, the United States Congress has actually passed a law on the 3d of March instant, in which it is, among others, provided that every immigrant who should have declared his intention should be subject to the draft, and therefore the present matter seems to differ entirely from that in regard to which I announced to your honor my decision on the 4th of September of last year.
Under these circumstances I am induced to authorize you hereby henceforth to issue certificates of protection against draft in the military service only to such of the applicants who, by presentation of Bavarian passports, evidence to your honor that they were Bavarian subjects at the time of their arrival in the United States, in whose regard you should have previously, to the best of your judgment and according to your duty, ascertained from the necessary authentic information that they not only have not yet been naturalized in the United States, but also have not yet made the declaration of intention, unless the party concerned should be able to prove that at the time of the declaration he had not yet passed his eighteenth year ; because it would seem from explanations hitherto obtained by the King’s government in the premises that the deposition of this declaration by a, party previous to the accomplishment of his eighteenth year is inadmissible in law, and therefore invalid, on account of the oath required to be made on that occasion.
Be pleased, your honor, to receive in this connection the renewed assurance of my entire respect.
In absence of the King’s secretary of state, the King’s state counsel,
The King’s Consul at Milwaukee, the Baron von Baumbach.
Prince Hohenlohe to Mr. Toomy.
Sir : The minister of justice having just informed me of a royal order with regard to the matter of Lorenz, I lose not a moment, sir, to make the following communication to you upon that subject.
Jean Lorenz, of Odernheim, left the country in the month of November, 1859, to go to America, without, however, previously asking or obtaining permission to expatriate himself.
A subject of Bavaria is, according the constitution of the kingdom, not considered as having expatriated himself by having emigrated, until such time as he has completely passed into the allegiance of another country, the simple absence from his country and his sojourn abroad, whatever the duration, not taking from him his native nationality.
According to the letters of naturalization exhibited by Jean Lorenz, he was made a citizen of the United States on the 6th of October, 1865; it was not, therefore, until that period that the individual in question ceased to be a subject of Bavaria.
Born the 12th of January, 1844, it became the duty of Lorenz, in conformity with the provisions of section 5 of the recruiting law from the 1st of January, 1865, to comply with the requirements of the said law, as far as it relates to the military conscription.
But the individual in question was no longer obliged to satisfy the requirements of the before-mentioned law, as far as its provisions relate to military service, in view of the fact that Lorenz had, at the period at which he was required to conform with the provisions of the law in that respect, (January 1, 1866,) ceased since nearly three months to be a subject of the King ; therefore his Majesty, having knowledge of the circumstances of the matter, did deign to declare, by an order of the 25th of last month, a remission of all the penalties and their consequences which Lorenz had incurred by reason of his conviction as a refractory subject of Bavaria.
My predecessor, the Baron de Pfordten, has already informed you, sir, in the note which he addressed you on the 10th of October of last year, “that according to the tenor of section 67 of the recruiting law, emigration made it necessary for a Bavarian subject to furnish a substitute for the army of the King, provided the change into the allegiance of another country had not been completely effected at the time of the commencement of the year in the course of which the individual in question would have to comply in Bavaria with the military conscription.”
Jean Lorenz was born on the 12th of January, 1844. From the 1st of January, 1865, therefore, he had reached the age at which he had to satisfy the military conscription in Bavaria.
On the 6th October of the said year, Lorenz changed into the allegiance of another country ; but not having in the interval of nine months preceding his naturalization in the United States complied with the requirements of the law in providing a substitute for the Bavarian army, the individual in question will not be permitted to receive his property until he shall be discharged of an obligation which the laws of his former country have imposed upon him, and of a compliance with which even the pardon of the sovereign according to the laws of the kingdom cannot exempt him.
In reserving to myself, sir, to consider at some future day the note which you addressed my predecessor on the 24th of August last year, I seize the opportunity to renew to you the assurance of my distinguished consideration.
Mr. Henry Toomy, Consul of the United States at Munich.
Baron Pfordttn to Mr. Toomy.
Sir: In reference to the letter which Mr. de Dacenberger addressed you on the 15th ultimo relative to the matters of Lutz and Strauss, I am enabled to have to-day the honor to make the following communication to you upon the subject.
In a note addressed on the 5th of January, 1861, to Mr. A. Ten Brook concerning the person named Antoine Weidman, my predecessor did already convey to the knowledge of the consulate of the United States at this capital, that, relative to the duties of his Majesty’s subjects with regard to military service, emigration obliged a Bavarian subject to furnish a substitute for the King’s army, provided the change into the allegiance of another country had not been completely effected at the period of the beginning of the year in the course of which the individual in question would have to comply with his military conscription in Bavaria.[Page 600]
Valentin Lutz of Obermoschel left this country in 1851, to go to America, without, however, having previously asked permission to expatriate himself. In 1855 his wife and children followed, in a no less clandestine manner, their husband and father. Returned to this palatinate within the past months, the son Adolph was the bearer of a certificate showing that this member of the family in question was naturalized in the United States on the 29th of last March. This individual, who, as has been stated above, did not obtain permission to expatriate himself, was born the 15th of July, 1844 ; he had, therefore, on the 1st of January, 1865, reached the age when he had to satisfy the military conscription in Bavaria. Now Adolph Lutz, not having at that period enjoyed yet the quality of citizen of the United States, as is shown by the above-mentioned certificate, was unquestionably obliged, if he desired to obviate the consequences of an ulterior Omission, to conform with the requirements which the law enacts in that regard. Adolph Lutz not having, however, been disposed to comply with these requirements, the authorities of the palatinate were doubtless warranted in adopting the proper measures and in submitting, in the first place, the certificate in question to the examination of the government. Whilst, consequently, the production of this document could only have eventually served to prevent the forcible incorporation of Adolph Lutz among the troops of the King, your communication of the 14th ultimo turns the situation to the advantage of the individual concerned. According to that communication, Lutz, the father, was naturalized m the United States the 20th of July, 1860, and according to that same note, as well as that which you addressed to me the 14th of July, Mr. Adolph Lutz has, by virtue of that naturalization of his father, himself become a citizen of the United States.
Having, therefore, on the 1st of January, 1865, already been clothed with a foreign nationality, Adolph Lutz was at that period no longer bound to conform with the laws of the kingdom! relative to military conscription, and the minister of the interior has consequently lost no time in causing orders to be given to the authorities of the palatinate inhibiting all proceedings in the matter in question.
Receive, sir, the renewed assurances of my distinguished consideration.
Mr. Henry Toomy, Consul of the United States, Munich.