The principal correspondence has been with Prussia.
This correspondence is commenced in the United States Senate Documents, 1859–’60, (first session, Thirty-sixth Congress,) vol. ii, containing the papers laid before the Senate in compliance with a resolution of that House of the 2d of February, requesting information respecting the compulsory enlistment of American citizens in the army of Prussia.
The first paper of importance is a letter from Mr. Wheaton (the well-known jurist, who was at that time United States minister at Berlin) to Johann Knocke, a naturalized American, born in Prussia, who claimed exemption from military service on his return to that country.
“Berlin, July 24, 1840.
“Sir: I have received your application, stating that you are a native-born subject of His Majesty the King of Prussia; that you emigrated to the United States in the year 1834, being then twenty-one years old, where you became naturalized as a citizen; that you have since returned to your native country, where you have been required to perform military duty, and desiring my official interference for your relief.
“In reply I have to state that it is not in my power to interfere in the manner you desire. Had you remained in the United States, or visited any other foreign country, (except Prussia,) on your lawful business, you would have been protected by the American authorities, at home and abroad, in the enjoyment of all your rights and privileges as a naturalized citizen of the United States. But, having returned to the country of your birth, your native domicile and natural character revert, (so long as you remain in the Prussian dominions,) and you are bound in all respects to obey the laws exactly as if you had never emigrated.1
“I am, &c.,
“Mr. Johann P. Knocke.”
The correspondence now passes to the year 1851, when Mr. Barnard was United States minister at Berlin.
The first case is that of H. V. de Sandt, a Prussian by birth, who, after declaring his intention to become a United States citizen, had returned to Prussia, and whom the authorities at Cleves had ordered to leave that country.[Page 1294]
In reply to a representation from Mr. Barnard, M. le Coq explained on behalf of the Prussian Government that Sandt had left with the idea of evading military service; that the proofs of his naturalization in the United States were incomplete, and that the order of the Cleves authorities would not be revoked.1
Upon this Mr. Barnard wrote to Sandt, (June 16, 1851.)2
“When you ceased to be a citizen of Prussia by your permit of emigration, and became a resident in the United States, the laws and Government of that country became your protection so long as that residence continued. When, however, you quitted your residence there before perfecting your naturalization and again took up your abode in Prussia for your own purposes, your position was a peculiar one, and required from you a peculiar and very discreet line of conduct. It was impossible for the American legation here to claim you as an American citizen.”
Several other cases occurred in 1851–’52, which it seems unnecessary to give a detailed account of.3
Mr. Brandt arrested at Coblenz on the ground of being an emigration agent. Mr. Dale, an American, imprisoned at Aix-la-Chapelle for having an informal passport:4
Mr. Behne summoned to military service.5
Dr. Gutowski, a Pole, of Posen, naturalized in the United States, who had returned to Prussia.6
Mr. Barnard informed Dr. Gutowski (August 3, 1852) that “having voluntarily returned to the country of your birth, where you have purchased a farm and taken up your residence, the Prussian government has a right to regard you as its subject, and so treat you in all respects.”
Mr. B. Meyer, a native of Padeborn, fined 50 dollars on returning to Prussia, for having evaded military service by emigrating without a license.
It appears from a dispatch from Mr. Barnard to Mr. Webster7 that the Prussian government was always at this time on the lookout for the German democratic propaganda and its agents, and that naturalized German citizens gave rise to suspicion by the ostentatious manner in which they flaunted their Americanism in the face of the authorities, Mr. Born, one of the most respectable of these persons, having demanded 20,000 rix-dollars for a detention of six or eight hours.
On the 29th of October, 1852, Mr. Bernard called the attention of Baron Mantueffel to the case of John Joseph Kracke, who had been forced into the army for three years’ service.8
On the 14th of January, 1853, Mr. Everett furnished Mr. Barnard with instructions, of which the following is an extract:9
“The doctrine of inalienable allegiance is, no doubt, attended with great practical difficulties. It has been affirmed by the Supreme Court of the United States, and by more than one of the State courts; but the naturalization laws of the United States certainly assume that a person can, by his own acts, divest himself of the allegiance under which he was born and contract a new allegiance to a foreign power. But, until this new allegiance is contracted, he must be considered as bound by his allegiance to the government under which he was born, and subject to its laws; and this undoubted principle seems to have its direct application in the present cases. * * If, then, a Prussian subject, born and living under this state of the law, (of military service,) chooses to emigrate to a foreign country without obtaining the ‘certificate’ which alone can discharge him from the obligation of military service, he does so at his own risk. * * * For these reasons, and without entering into any discussion of the question of perpetual allegiance, the President is of opinion that if a subject of Prussia, lying under a legal obligation in that country to perform a certain amount of military duty, leaves his native land, and without performing that duty or obtaining the prescribed ‘certificate of emigration,’ comes to the United States and is naturalized, and afterwards, for any purposes whatever, goes back to Prussia, it is not competent for the United States to protect him from the operation of the Prussian law.”
The doctrine thus laid down by Mr. Everett was communicated by Mr. Barnard to Baron Manteuffel on the 15th of February, 1853:10
“The Government of the United States considers that the laws of Prussia, which require a certain amount of military service of its subjects, and which prescribe the conditions in reference to this military service on which emigration is permitted, are a matter of domestic policy, in which no foreign government has a right to interfere. It considers also that, if a Prussian subject, born and living under this state of the law, emigrates to a foreign country without a compliance with those conditions, which alone can discharge him from the obligation of military service, he does so at his own personal risk. Going abroad under the burden of a duty still due to his native sovereign, his unauthorized emigration is in the nature of an escape from that duty and [Page 1295] from the laws which prescribe and enforce it, and he remains liable, in spite of any contract he may enter into in the mean time of new allegiance to a foreign power, to have these laws executed against him whenever he returns within the territorial limits and jurisdiction of his native country.”
Baron Manteuffel, in his reply1 of the 28th of February, says: “As, however, the Government of the United States considers that it is not for its interest to make the admission of an emigrant, as citizen, dependent on the exhibition of a document proving that he had dissolved the ties by which he was attached to his old country, it is much to be feared that difficulties will still occasionally rise.
“Rarely will the Prussian government refuse the subsidiary issue of an emigration permit to individuals who, in their infancy, were taken from His Majesty’s territory by their parents, except in cases when there bad been a judgment of a Prussian court against the applicant.
“At the close of your note of the 15th instant, you still quote section 23 of the law of the 21st of December, 1842. I permit myself to request you will notice, sir, that the term of ten years fixed for the return to Prussia of a subject of His Majesty only runs from the 1st of January, 1843; and that if said paragraph authorizes the government to consider an uninterrupted absence of more than ten years as importing the loss of the quality of a Prussian subject, it does not, nevertheless, dispense the absentee from duties which he ought to discharge while he was a Prussian.”
Several more conscription cases are given in the Senate documents, but the next document of importance is a dispatch from Mr. Wright, (who had succeeded Mr. Barnard,) dated September 28, 1858, in which he states: “No American consul or minister can shield from impressment a United States citizen born in Prussia. Is it possible that there is no remedy for this state of things? My opinion is, that if a decided and firm stand be taken by our Government during the present peculiar position of affairs in Prussia, it will lead to good results. It is certainly worthy of a trial.”
Mr. Wright having furnished the United States Government with information which he had procured from the Prussian government respecting the laws of enlistment and expatriation, (see laws of Prussia,) continued to urge the necessity of steps being taken to protect the interests of United States naturalized citizens; and on the 8th of July, 1859, Mr. Cass furnished him with instructions asserting the right of the United States to carry to much greater lengths than they had hitherto done the doctrine of the immunity from native allegiance and its duties conferred by foreign naturalization:2
“The right of expatriation cannot at this day be doubted or denied in the United States. The idea has been repudiated ever since the origin of our Government, that a man is bound to remain forever in the country of his birth, and that he has no right to exercise his free will and consult his own happiness by selecting a new home. The most eminent writers on public law recognized the right of expatriation. This can only be contested by those who, in the nineteenth century, are still devoted to the ancient feudal law with all its oppression. The doctrine of perpetual allegiance is a relic of barbarism, which has been gradually disappearing from Christendom during the last century.”
Mr. Cass then argues that the United States expressly recognize the right of expatriation by requiring applicants for naturalization to take an oath renouncing their native allegiance:
“The moment a foreigner becomes naturalized, his allegiance to his native country is severed forever. He experiences a new political birth. A broad and impassable line separates him from his native country. He is no more responsible for anything he may say or do, or omit to say or do, after assuming his new character than if he had been born in the United States. Should he return to his native country he returns as an American citizen, and in no other character. In order to entitle his original government to punish him for an offense, this must have been committed while he was a subject and owed allegiance to that government. The offense must have been complete before his expatriation. It must have been of such a character that he might have been tried and punished for it at the moment of his departure. A future liability to serve in the army will not be sufficient, because before the time can arrive for such service he has changed his allegiance and become a citizen of the United States. * * * * In my letter to Mr. Hofer of the 14th ultimo I confine the foreign jurisdiction, in regard to our naturalized citizens, to such of them as ‘were in the army or actually called into it’ at the time they left Prussia, that is, to the case of actual desertion or a refusal to enter the army after having been regularly drafted and called into it by the government to which at the time they owed allegiance.”
There is another dispatch from Mr. Cass to Mr. Wright, of the 12th of May, 1859, in the same sense, in which he remonstrates against a declaration of Baron Mantueffel “that from the existing laws of Prussia no former subject of the King, whatever his condition may be, has the right of claiming his re-admission into Prussia,” as inconsistent with the rights of United States citizens under treaty with Prussia.3[Page 1296]
“Under our treaty with Prussia there can be no doubt that American citizens who owe no service to Prussia, and have broken no Prussian law, have a right to visit and reside in Prussian territories without being in any way molested by the government.”
The note from Baron Manteuffel here referred to is not published.
There is no further mention of the conscription of naturalized Americans in Prussia in the published correspondence until May 6, 1862,1 when Mr. Seward writes to Mr. Judd that the question must be postponed until the United States and Prussia have been relieved from present anxieties.2
This dispatch was called forth by the release from the army, as an act of comity, of two naturalized Americans, for which Mr. Seward instructs Mr. Judd to thank the Prussian government.
In March, 1863, Mr. Seward wrote to Mr. Judd:3 “Instances have occurred where Europeans who have become naturalized citizens of the United States have left the country when their services were required, and returned to Europe to avoid needful military duty here, and then have invoked the protection of the United States to screen them from military duty there. Henceforth you will make no further applications in these military cases without specific instructions.”
Nor does anything on the subject appear in the papers relating to foreign affairs for 1864–’65.
Mr. Judd revived the controversy by calling Mr. Seward’s attention, on the 9th of August, 1865,4 to the position of naturalized Americans, many of whom, having acquired the rights of United States citizenship under the act of Congress by service in the United States Army, had returned to Prussia at the conclusion of the civil war and were now threatened with compulsory conscription.
Mr. Wright was re-appointed minister in September, 1865, and shortly afterward recommenced an agitation on behalf of naturalized Americans.
He reported to Mr. Seward that during that year at least five hundred naturalized5 Americans had returned to Prussia, liable to military duty according to Prussian law; but that the Prussian authorities did not succeed in placing in the army one in a hundred.
As an instance he forwarded to Mr Seward a copy of a note from Baron Thile, stating that one Breiger a naturalized American, had been condemned to a fine of 50 thalers, or one month’s imprisonment, for having left the country with intention of avoiding military duty; but that the Prussian government would allow him to make a short stay in Prussia, on submitting to the judgment and paying costs.
In November Mr. Wright had an interview with Count Bismarck,6 who said that “it would be almost impossible to change by legislation the Prussian laws, in view of the prejudice among the German peasants that, as all Prussians are subject to military duty, the returning adopted citizens would be exempt,” and added “that the subject could only be adjusted by some treaty arrangements with the United States.”
As a basis for such an arrangement Count Bismarck suggested “exemption to all Prussian subjects returning to their native land who had left before their seventeenth year, and exemption also to all other persons who were not in the army or notified to enter at the time of leaving, and who shall have been out of the country for years.”
Count Bismarck further suggested that such a treaty might be brought about by a Prussian proposal for a reconsideration of the extradition treaty of 1838, especially with regard to deserters; upon which the United States might make a counter-proposal for a convention on the subject of their naturalized citizens.
On the 2d day of December Mr. Seward7 furnished Mr. Wright with the following instructions: “Considerations of ease and policy prevailed with this Department to allow the subject to rest during the continuance of the war. We became even less anxious upon the subject when it was seen that worthless naturalized citizens fled before the requirements of military service by their adopted Government here, and not only took refuge from such service in their native land, but impertinently demanded that the United States should interpose to procure their exemption from military service exacted here.
“Those circumstances, however, have passed away and the question presents itself in its original form. The United States have accepted and established a government upon the principle of the rights of men who have committed no crime to choose the state in which they will live, and to incorporate themselves as members of that state, and to enjoy henceforth its privileges and benefits, among which is included protection. This principle is recommended by sentiments of humanity and abstract justice. It is a principle which we cannot waive. It is not believed that the military service which can be procured by any foreign state in denial of this principle can be important or even useful to that state. The President desires that you will present the subject to the serious consideration of Count Bismarck. In doing so you will assure him [Page 1297] * * that we shall be ready to receive and consider with candor any opinions upon the subject that the Prussian government may think fit to communicate, and any suggestions * * * relative to the extradition laws of the two countries.”1
On the 16th of December Mr. Wright transmitted to Mr. Seward a memorandum with which he had been furnished by Baron Thile, showing the amendments which the Prussian government considered might be made in the extradition treaty, and adding:
“Advantages respecting the legislation on the nationality of Prussian subjects which could eventually be conceded to Prussian subjects who are or wish to become citizens of America:
“1. It would be granted that, after an absence of ten years from Prussia, not only the rights, but also the duties and obligations of a Prussian subject toward his native country cease to prevail. This is a principle which till now has been followed by Prussian authorities only in some isolated cases, but which has not been generalized nor is law in the country.
“2. The article 110 of the Prussian code says: ‘Whosoever leaves Prussia with a view to avoid his enlistment in the royal army will be punished, either by a fine of 50 or 100 thalers, or by imprisonment from one month to one year.’
“An exception from this general rule might be introduced in favor of such individuals who leave Prussia before the age of seventeen years.”2
On the 15th of January, 1886, the sentence on Breiger was annulled.3
In February Mr. Seward sent to Mr. Wright two letters from naturalized Americans in the Prussian army, and directed him to request their release as an act of favor.4
At an interview in March, Count Bismarck suggested, as a compromise, that seven years should be the term of absence to constitute expatriation, instead of ten, and remarked upon the impossibility of Prussia changing her laws on the subject of military duty. To abolish these laws, he said, would be plainly impracticable for a country situated like Prussia; while to relax their stringency in favor of American emigrants beyond the concessions (as he termed them, alluding to his protocol proposals) would not only amount to the practical abrogation of said statutes in case of all that had emigrated to the United States, or intended to do so in the future, but would be actually offering a sort of emigration premium to all able-bodied men who had attained the age when they might be called out for active service in the army.
Mr. Wright urged upon Mr. Seward to accept Count Bismarck’s proposal.
Mr. Seward replied, April 9, 1866, that he would be happy to discuss the matter with Count Bismarck, but it must be in direct communication with the Prussian government, and not at second-hand; that he could not give a formal answer to an argument presented not in writing, but orally, and made known only by Mr. Wright’s report.
The Austro-Prussian war gave rise to a great number of conscription cases. In most-instances the offenders were either pardoned or let off with a fine.5
On the 24th of September, 1866, Mr. Wright reports, “There is some doubt whether the amnesty will embrace the cases of our adopted citizens who have been fined, during their absence, for neglect of military duty. Baron Roon, minister of war, will be adverse to our view of its construction. Count Bismarck will, if possible, extend its provisions to all such cases.”6
On the same date Mr. Seward instructed Mr. Wright to “suggest to Count Bismarck the inquiry, whether it would not be deemed consistent now with the dignity and greatness of Prussia to recognize the principle of naturalization as a natural and inherent right of manhood. In reflecting upon the subject I am not able to believe that Prussia, anymore than the United States, can or need to rely upon compulsory military service by subjects who have incorporated themselves as members of foreign states.
“Secondly, I know of no circumstances which would tend to place Prussia on an elevation so high among the modern nations as the adoption of that principle which lies at the basis of the American Republic.”
This closes the published correspondence with Prussia on this subject.7
On the 22d of February, 1868, a treaty was signed at Berlin between the-North German Confederation and the United States of America, consisting of six articles, or which the following are the most important:
- Every subject of the North German Confederation naturalized in the United States of America, and having resided there during five years, shall be considered by the North German Confederation as an American subject, and treated as such. Every American citizen naturalized in the North German Confederation as an American subject, and having resided there five years, shall be considered by the Government of the United States of America as a German subject, and treated as such.
- Every naturalized subject of either state, who may return to the land of his birth, cannot be prosecuted for any criminal offenses, unless they shall have been committed by him previously to his expatriation.
- Every naturalized subject, who, having no intention of returning to the country of his adoption, resides continuously during two years in his former country, is presumed to have renounced his naturalization.
For this and other similar treaties see p. 149.
- United States Senate Documents. 1859–’60, vol. ii, p. 6.↩
- United States Senate Documents, 1859–’60,” vol. ii, p. 9.↩
- Ibid., p. 13.↩
- Ibid., p. 14.↩
- Ibid., p. 18.↩
- Ibid., p. 23.↩
- Ibid., p. 43.↩
- Ibid., p. 41.↩
- Ibid., p. 44.↩
- Ibid., p. 53.↩
- Ibid., p. 57.↩
- United States Senate documents, 1858–’60, vol. ii, p. 1364.↩
- Ibid., p. 133.↩
- Ibid., p. 241.↩
- Parliamentary Paper “North America,” No. 2, 1862.↩
- United States papers relating to foreign affairs, 1861–’62.↩
- United States papers relating to foreign affairs, 1862–’63, vol. ii, p. 1020.↩
- United States Executive Documents, 3d sess. 38th Congress, vol. iv. United States Diplomatic Correspondence, 1865, vol. iii, p. 60.↩
- Ibid., p. 64.↩
- Ibid., p. 66.↩
- Ibid., p. 68.↩
- Parliamentary Paper “North America,” No. 2, 1862.↩
- Ibid., p. 4↩
- Ibid., p. 6.↩
- Ibid., p. 10.↩
- Ibid., p. 47.↩
- Ibid., p. 46.↩
- Lord A. Loftus, No. 108, Feb. 22, 1868.↩