Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1873, Part I, General Correspondence; and Papers Relating to Naturalization and Expatriation, Volume I

No. 132.
Mr. Fish to Mr. Bancroft.

[Extract.]

Department of State,
Washington, April 14, 1873.

No. 569.]

Sir: In my No. 568, of even date, I have instructed you concerning the particular case of Klatt, referred to in your No. 466.

The general question which you suggest “as to the status of natives of Germany who have renounced their allegiance to Germany, but have not yet resided five years in the United States, and are therefore not American citizens,” deserves a separate consideration.

It is much to be desired that there should be a revision of the treaties affecting the status of naturalized Germans (other than Austrians) in the United States. They were all negotiated by you, and you are therefore doubtless familiar with their practical defects.

When they were negotiated several independent nations existed in the territory which now constitutes the German Empire. When the empire was formed we had entered into treaties for the regulation of naturalization with the North German Union, with the Grand Duchy of Baden, with the kingdom of Bavaria, with the Grand Duchy of Hesse as to the citizens of the parts of the Grand Duchy not included in the North German Confederation, and with the kingdom of Würtemberg.

The first defect in the existing treaties is that they are not co-extensive with the limits of the empire. The provisions of none of the existing treaties extend to Alsace and Lorraine, which form an integral part of the empire, and from which there has long been a large and valuable emigration to the United States, whose status deserves recognition and protection.

The next defect in the existing treaties is that they make different and, in some respects, conflicting provisions respecting the naturalized citizens. I will point out those inconsistencies.

For the sake of convenience and brevity I confine myself to provisions respecting the acquisition of American citizenship by Germans, it being understood that the provisions of the treaties are mutual unless otherwise stated.

1. Citizens of the North German Confederation who become naturalized citizens of the United States, and shall have resided uninterruptedly within the United States five years, shall be held by the North German Confederation American citizens, and shall be treated as such; but citizens of Baden, or of Würtemberg, or of Bavaria, or of Hesse, who have become or shall become such naturalized citizens, and have so resided, are to be held to be such citizens; (neither German country, however, undertaking to hold them to be such citizens beyond its own borders.) A protocol, signed at the same time with the Bavarian treaty, makes a still wider divergence in the case of that treaty. With this power we have agreed that the words “resided uninterruptedly” do not mean “a continued bodily presence,” and therefore “a transient absence by no means interrupts the period of five years; and also that under certain circumstances a five years’ residence shall no longer be required.”

Thus on this most vital point of a naturalization treaty we find:

(a.) That there are two provinces unaffected by any treaty.

(b.) That the remaining states are affected by four treaties, each operative only within its own territorial sphere.

(c.) That of these four treaties, three expressly relate to past acts of naturalization as well as to future ones, while the fourth and most important one is entirely silent as to past acts.

(d.) And as to one treaty, we are bound to a construction of the word “uninterruptedly” which we have not a right to insist upon as to the other three treaties.

2. Crimes committed before emigration may be punished, in what was North Germany, on the return of the emigrant, saving always the limitation established by the laws of his original country. The other treaties add to this saving clause the words “or any other remission of liability to punishment.” Bavaria adds to this that the returned emigrant is not to be made punishable for the act of emigration itself, and Baden makes special provisions concerning trial and punishment for non-fulfillment of military duty.

3. If a German naturalized in America renews his residence in North Germany without 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. The same provision applies to Würtemberg as to a “Würtemberger,” to Hesse Darmstadt as to a “Hessian naturalized in America but originally a citizen of the part of the Grand Duchy not included in the North German Confederation;” to Bavaria as to a “Bavarian,” but as to the latter power it is declared that the article “shall only have this meaning, that the adopted country of the emigrant cannot prevent him from acquiring once more his former citizenship; but not that the state to which the emigrant originally belonged is bound to restore him at once to his original relation. As to Baden, it is only provided that the emigrant from the one state who is to be held as a citizen of the other state, shall not on his return to his original country be constrained to resume his former citizenship; yet, if he shall of his own accord reacquire it and renounce the citizenship obtained by naturalization, such a renunciation is allowed, and no fixed period of residence shall be required for the recognition of his recovery of citizenship in his original country.

Here, again, we find great defects, which it is very desirable to have remedied.

(a.) The provisions respecting residence in the old country and the re-acquisition of citizenship are unequal, and in the case of Bavaria uncertain.

(b.) Residence in other parts of Germany than that covered by the provisions of the particular treaty is inoperative to work a loss of the acquired citizenship, which is against the interests and the real intention of the United States and of Germany.

4. Each of these treaties contains a provision respecting existing extradition treaties. The treaties thus referred to appear to be identical in principle, except that the treaty with Baden contains no provision respecting the utterance of forged paper, while such a provision is found in all the other treaties. The extradition treaties with France, concluded in 1843 and 1845, which may be contended to be in force as to the portions of Alsace and Lorraine which were ceded to Germany, contain a different enumeration of crimes, and include rape and burglary as among the offenses for which an extradition may be claimed by one government of the other.

5. None of the treaties make a provision protecting the rights of inheritance of the emigrant, in cases like Klatt’s, where the citizenship of one country is lost and that of the other is not yet acquired.

I have already expressed the opinion, in my No. 560, that it is desirable to revise these several treaties, and to reduce the respective rights and obligations under them to the simplicity and definiteness of a single, or rather of two, instruments.

The extension of the provisions of the naturalization treaty with North Germany would, in the opinion of the President, be the simplest and best way to solve that question, adding to it such a provision as might be necessary, under German laws, to enable Germans who have declared their intention to become citizens of the United States, but have not yet become such, to inherit real and personal estate in Germany; and also agreeing that its provisions are to extend to all past naturalizations. * * * * * * * *

Should the German government be disposed to extend the naturalization treaty with North Germany in the manner above indicated, a power will be sent you to conclude a convention for that purpose.

I am, &c.,

Hamilton Fish.